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The Village Districts Act

The Connecticut Approach

We begin with an approach that lands squarely in the middle of the continuum anchored on one end by an apparent lack of enabling authority and on the other by express enabling authority for TND regulation.

On May 22, 1998, Connecticut Gov. John G. Rowland signed into law Public Act 98-116, "An Act Authorizing the Establishment of Village Districts." Effective October 1, 1998, the Village Districts Act enables local zoning bodies to protect the distinctive character, landscape, and historic value of the areas under their jurisdiction. This amendment to Connecticut's zoning enabling legislation has, thus far, spawned only two local village districts, in the towns of Brooklyn and Middletown, but many other towns are engaged to one extent or another in the development of such regulations.

Why a Village Districts Act?

According to John Filchak, executive director of the Northeast Connecticut Council of Governments, the genesis of the act was not an overt attempt to create ground-breaking zoning enabling legislation, but rather a desire to address the needs of the towns of Brooklyn and Canterbury, Connecticut. Brooklyn, a town of roughly 7,000 people located in northeast Connecticut, had no local regulatory means at its disposal with which to address road improvements proposed by the Connecticut Department of Transportation (DOT) that would directly affect the rural town's historic green. A different type of challenge confronted Canterbury, a larger town of roughly 43,000 residents, discovered that current zoning laws would not adequately address many of the issues it had identified while updating its Plan of Conservation and Development. The primary concerns of each town fell into the following four categories:

Desire to preserve character. Brooklyn's historic green is listed on the National Register of Historic Places as the Brooklyn Green Historic District. While this distinction is noteworthy, National Register listings are primarily honorific and therefore do not provide any legal protection for historic resources outside the National Historic Preservation Act. This small rural town, therefore, found itself powerless to protect its existing character against actions contemplated by the DOT. Canterbury is bisected by Connecticut Route 169, a state and national scenic highway named by a national publication as one of the 10 most beautiful roads in America. The challenge facing Canterbury was how to maximize the benefits inherent in an area with commercial potential, while at the same time preserving its beautiful viewsheds and distinctive architectural character.

Recognition that present zoning was not working. In Brooklyn, the town green is located at the convergence of a number of residential and commercial zoning districts. The zoning regulations establishing these districts failed to address the preservation of their rural character. Canterbury, on the other hand, had a Rural Agricultural Zone in place, where all development was permitted by special exception, but the special exception criteria did not sufficiently address character preservation concerns.

No desire to enact historic districts. Each town had, in the past, investigated establishing a local historic district under the state's enabling legislation for historic districting. Both efforts failed, for two reasons: (1) neither community could obtain the two-thirds vote required to establish such a district under the Connecticut General Statutes; and (2) neither community could overcome the perception that Historic District Commissions amount to nothing more than another layer of bureaucracy associated with stopping development and/or are driven by the goal of "freezing the town in time."

Growth v. quality of life. Both towns wanted to protect their rural image, but at the same time wished to enhance their future economic development potential.

How the Act Became Law

The bill that would become the Village Districts Act, House Bill No. 5485, sponsored by State Rep. Jefferson B. Davis, (D-Brooklyn, Chaplin, Eastford, Hampton, Kingley, Pomfret), was the first attempt in Connecticut to explicitly consider non-historic district-based aesthetic regulation. At the time, it may very well have been the only legislative initiative of its type in the U.S.

The initial draft of the bill and the accompanying legislative history identified two primary purposes for its introduction in the state legislature: the preservation of rural character and the regulation of sprawl. As discussed below, it became necessary to broaden the bill's scope to encompass the preservation of the distinctive character of any municipality.

The people most closely involved in the passage of House Bill No. 5485 consistently register surprise at the ease with which this bill became a law. Those who were not involved with the passage of the bill and became aware of it only after its enactment variously referred to it as a "stealth bill." The bill remained virtually intact from the beginning of the process to the end, with two exceptions. The floor debate on the bill was minimal, and amendments centered on one passage and one word.

Removal of local control of DOT. The initial bill contained a provision that "[e]ach State agency, department or institution undertaking a project impacting a village district, including, but not limited to, the construction, alteration or maintenance of roadways and the erection, repair, modification or demolition of structures shall consider the provisions of the regulations established under this section. Any municipality aggrieved by a decision of a state agency, department or institution under this subsection may appeal such decision in accordance with Section 4-183 of the General Statutes." Predictably, the DOT lobbied to have this provision removed from the bill, because it would allow localities to influence the DOT's decision-making powers.

Expansion beyond rural character. The most critical amendment coming out of the floor debate was an expansion of the jurisdiction of the act. Initially, the bill was proffered as a rural character preservation measure. In order to garner support from urban legislators, however, the word "rural" was removed and replaced with the word "distinctive" as a modifier of the word "character." This change makes the act applicable to all towns and cities in Connecticut. Thus, a "Village District" can be established in a neighborhood in Hartford or New Haven as well as in areas of rural towns such as Brooklyn or Canterbury.

What Does the Act Require?

The Village Districts Act authorizes zoning commissions and planning & zoning commissions to establish "village districts" as part of the regulations adopted under their general zoning enabling legislation or any special act so that municipalities can protect the distinctive character, landscape, or historic value of the areas so identified in the municipal Plan of Conservation and Development. The act is divided into three main sections: (1) Zoning Regulations; (2) Compatibility Objectives; and (3) Review by the Village District Consultant.

Zoning regulations. Under the act, commissions may regulate new construction, substantial reconstruction and rehabilitation of properties within the district and in view from public roadways. The scope of such regulations includes the design and placement of buildings, the maintenance of public views, the design, paving materials, and placement of public roadways, and other elements that the commission may deem appropriate to maintain and protect the character of the district. Simply put, commissions are granted broad discretion in regulating a wide variety of aesthetic concerns, be it in the idiom of a TND or otherwise.

In establishing zoning regulations for the adoption of a village district, commissions are required to consider the design, relationship, and compatibility of structures, plantings, signs, roadways, street hardware, and other objects in public view. Specifically, the act requires that the regulations:

(1) "shall establish criteria from which a property owner and the commission may make a reasonable determination of what is permitted within" the district;

(2) "encourage the conversion, conservation, and preservation of existing buildings and sites in a manner that maintains the historic or distinctive character of the district;"

(3) ensure that "the exterior of structures or sites" in a village district are "consistent with the Connecticut Historical Commission, The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings . . . or the distinctive characteristics of the district identified in the Plan of Conservation and Development;"

(4) provide that:

(a) proposed buildings or modifications to existing buildings be harmoniously related to their surroundings, and to the terrain in the district and to the use, scale, and architecture of existing buildings in the district that have a functional or visual relationship to a proposed building or modification;

(b) all spaces, structures, and related site improvements visible from public roadways be designed to be compatible with the elements of the area of the village district in and around the proposed building or modification;

(c) the color, size, height, location, proportion of openings, roof treatments, building materials and landscaping of commercial or residential property and any proposed signs and lighting be evaluated for compatibility with the local architectural motif and the maintenance of views, historic buildings, monuments and landscaping; and

(d) that the removal or disruption of historic, traditional, or significant structures or architectural elements shall be minimized.

Compatibility objectives. The Village District Act also requires that all development in the village district shall be designed to achieve the following compatibility objectives:

(1) the building and layout of buildings and included site improvements shall reinforce existing buildings and streetscape patterns and the placement of buildings and included site improvements shall assure there is no adverse impact on the district;

(2) proposed streets shall be connected to the existing road district network, wherever possible;

(3) open spaces within the proposed development shall reinforce open space patterns of the district, in form and siting;

(4) locally significant features of the site, such as distinctive buildings or sight lines of vistas from within the district, shall be integrated into the site design;

(5) the landscape design shall complement the district's landscape patterns;

(6) the exterior signs, site lighting, and accessory structure shall support a uniform architectural theme if such a theme exists and be compatible with the surroundings; and

(7) the scale, proportions, massing, and detailing of any proposed building shall be in proportion to the scale, proportion, massing, and detailing in the district.

Review by the village district consultant. Once a municipality has properly established a village district, any application for new construction and substantial reconstruction in view from a public roadway "shall be subject to review and recommendation" by the "Village District Consultant." This consultant can be an architect or an architectural firm, landscape architect, or AICP member selected by and under contract to the regulatory body. The commission may, in the alternative, designate as its consultant the municipality's Architectural Review Board but only if that board has at least one member who is an architect, a landscape architect, or an AICP member. After reviewing the application, the consultant may submit a report to the commission within 35 days of receipt of the application. The report and recommendation are merely advisory, since they are to be "considered by the commission in making their [sic] decision." In addition, the act provides that the commission may seek the recommendations of "any town or regional agency or outside specialist with which it consults." Examples of organizations that may be consulted include the regional planning agency, the local historical society, the Connecticut Trust for Historic Preservation, and The University of Connecticut College of Agriculture and Natural Resources.

Finally, the act provides that if the commission grants or denies an application, it is required to state upon the record the reasons for the decision. In the event of a denial, the commission must cite the specific regulations under which the application is denied. The act provides for publication of the decision and that a decision will not become effective until it is recorded in the land records of the town in which the premises are located.

While the Village Districts Act does not expressly enable TND regulations, as Pennsylvania's and Wisconsin's acts do, the Village Districts Act can conceivably accommodate TND regulations given its broad mandate to protect the distinctive character of an area. Aside from the manner in which these types of regulations can be written and how the compatibility objectives can be made into enforceable and predictable regulations, there is the issue of the degree to which the provisions in Conn. Gen. Stat. § 8-2 (Connecticut's general zoning enabling legislation), which allow that "regulations shall be made with reasonable consideration to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of the buildings . . . throughout such municipality" and that "regulations may be made with reasonable consideration for the protection of historic factors" relate to the provisions of the Village Districts Act. Such an examination is well beyond the ken of this article, but this issue may provide substantial grist for the mill as the Village Districts Act is implemented by Connecticut municipalities, and ultimately, by its courts.