Greenwich Homeowners in Conservation Zones

Read Bud Dealys Columns on Greenwich Issues and Real Estate

F.A.R. - OVEREXERCISING THE POLICE POWER?

Our Planning and Zoning Commission is well aware that its legislatively delegated authority to exercise the police power so as to promote public health, safety, and the general welfare is a grave responsibility. That power is not unlimited. Any regulation imposed by it, particularly one limiting the size of a person's home, must

bear a rational relationship to that aspect of the public's welfare that the regulation seeks to promote and the regulation cannot be so excessive in its effect as to be confiscatory. Additionally, a regulation without a documented factual foundation which addresses only a "perceived" but unreal risk is arbitrary.

If you believe that our general welfare necessitates the regulation of house size because some are "too big", the regulations adopted in East Hampton, Connecticut in 1988 and their reception by our courts are instructive. East Hampton perceived a similar peril-in houses that were "too small". They too were considered a threat to the public welfare justifying "floor area ratio"(F.A.R.)regulations. The East Hampton Planning and Zoning Commission adopted "minimum" floor area ratios. Their requirements, like ours, varied according to the zone in which the property was

located. Like ours, their ratios were not related to the occupancy of the dwelling.

While it might be unhealthy for eight people to live in 300 square feet, that is not the case where there is only one occupant. When the legality of the East Hampton regulations came under attack, both tile trial court and the Supreme Court of Connecticut concluded that "varying minima" floor area ratios, unrelated to occupancy were "illogical insofar as the promotion of public health is concerned. " The lower court stated that the regulations without reference to occupancy "had no rational basis for promoting the public health. " No one yet has claimed that there is a health hazard in living in a house that is too big! Certainly, maximum floor area ratio requirements are less related to public health unless there is some undiscovered psychological damage caused by living in rooms that are too large. Justification for our Commission's F. A. R. regulations must be found elsewhere.

In Builders Service Corp., Inc. v. Planning and Zoning. Conzmission of East Hampton' the court also addressed the claim that the regulations were justified because the Commission was charged with the conservation of property values. The Court recognized that P & Z Commissions were legislatively authorized to regulate the size of buildings, that preserving value was a legitimate function and that. zoning legislation

' 208 Conn. 267 (1988)

envy the expert or town Planner that has to convince the Court that the F.A.R. regulations are factually justified because they prevent tile erosion of our "social" fabric-at least not with our current record on the modest and low cost housing issue.

From what I have read to (late, I believe the factual, statistical, logical and legal underpinnings of our new F.A..R. regulations are "shaky,, at best. From the point Of view of the police power, there appears to be more justification for regulating the size of the "McWaggoner" threatening me and my Honda than the size of a personal residence. I, like most, believe that overcrowding is detrimental to public welfare. I love the diversity of our town and want it promoted and preserved. I want my family and our teachers to be able to live here. It is a worthy goal to be accomplished by real, long range and documented planning,---not regulations premised on undocumented assumptions and drafted and presented in a manner inviting legal challenge.

Land Use Regulation invariably involves a clash of conflicting interests-the right of a citizen to build or expand a home as against the right of a governmental agency to regulate such activity in die interest of the general welfare. A frequent writer to these pages on this issue has argued that those opposing the F.A.R. "may be characterized as vested interests. " I agree. I do have a vested interest in preserving my right to be free from well-intentioned but, in my view, excessive, governmental regulation and a vested interest in my ability to oppose and question any governmental agency when it impairs fundamental property rights without demonstrating a proper foundation.