Greenwich Homeowners in Conservation Zones

Read Bud Dealys Columns on Greenwich Issues and Real Estate

In 1998 , the Representative Town Meeting (RTM) of the Town of Greenwich overwhelmingly passed a sense of the meeting resolution that urged the Planning and Zoning Commission (P&Z) to adopt appropriate floor area and setback zoning limitations. That resolution has been inaccurately portrayed and misconstrued as being a mandate from the RTM to P&Z to adopt floor-area-ratio (FAR) regulations in all zones of Town at all costs (when the RTM specifically requested “appropriate” FAR’s be enacted). This was done seemingly without regard to the results and the potential loss of property value to homes as a result of the inequities created by FAR and was contrary to P&Z’s statutory responsibility to support property values and minimize nonconformity when enacting new statutes.

Over the past five years the Public’s awareness and understanding of the complex issue of how best to control streetscape and preserve the character of our Town has dramatically increased – in part, due to FAR’s failed results. That is, large, out-of-context homes continue to be built, while at the same time many residents are severely limited in their ability to rationally expand their homes, negatively affecting the value of their homes and their quality of life.

Isn’t it time to conduct a full examination of the effectiveness of FAR and its ramifications? Shouldn’t we encourage experts to study alternative methods for controlling streetscape and preserving the character of our various neighborhoods so that we arrive at a solution that DOES NOT create problems worse than the problems it was trying to rectify?

Does FAR stop the “McMansion” problem? No. First of all, before trying to solve the so-called “McMansion” or oversized house problem, P&Z MUST DEFINE THE PROBLEM. To date, P&Z has not defined what constitutes an oversized house in relation to its neighborhood or otherwise. Certainly, many large homes were built under the 1998 FAR amendments that tightened FAR in the lower zones and created them in the 2 and 4-acre zones for the first time. Several examples were cited at the recent RTM Land Use Committee’s forum on house size and we all know of other examples in our neighborhood, which seem to be direct evidence that the 1998 FAR regulations did not work.

Is FAR designed to preserve streetscape and character of neighborhoods? No. FAR is a ratio of gross floor area to lot size. In many cases, it has no bearing whatsoever on the perceived bulk of a structure or how it looks from the street.

Does FAR limit “bulk” and promote more pleasing designs of homes? No. The more restrictive FAR regulations, coupled with P&Z’s new definition of floor area, attics and basements, actually encourage builders to elevate the bulk of homes on a pedestal of retaining walls and to build flat or shallow-pitched roofs so that the basement and attic areas will be exempt from floor area in order to max out living space on the first and second floors. In addition, these restrictions may well re-introduce the use of carports instead of garages to free-up additional living space. This will lead to plain, boxier-looking homes, that look nothing like our New England Architectural Heritage.

Did the FAR changes enacted in 1998 work? It is difficult to tell. P&Z has not demonstrated that the 1998 amendments had any desired effect and Diane Fox, Town Planner, stated, “P&Z does not collect this kind of information”. If P&Z will not follow up and document the effects of their own regulations, then how are townspeople to determine if the regulations are working? Although P&Z will tell you it has a “1000 page report,” it has no information that definitively supports whether or not the FAR amendments of 1998 worked as intended. If P&Z cannot point to anything to show that their proposal has and will work, then why are they proposing it again?

Is FAR the only available means to limit house size? Of course not. There are many tools available to P&Z, including setbacks, height restrictions, volume control, historic overlay zones, village districts, among others.

Does a more restrictive FAR affect the value of YOUR property? Yes. In every zone, homeowners are losing value from their homes by a conservative estimate of $300 for each square foot of allowable square footage that FAR has taken away. If a potential buyer cannot modify your home he won’t buy it, it’s that simple.

How does FAR affect YOUR property value? Here is an estimate, depending on your zone:

ZONE VALUE REMOVED FROM PROPERTY[1]

R-6 - $ 112,500

R-7 - $ 90,000

R-12 - $ 126,000

R-20 - $ 150,000

RA-1 - $ 196,020

RA-2[2] - $ 647,760

RA-4[3] - $1,233,000

Example: A 23,000 square foot lot in a R-20 zone: (.25-.225) x 23,000 x $300 = $172,000

How did the enactment in April 2002 of new attic and basement definitions provide “relief” to homeowners? It didn’t. It seems the P&Z has been inaccurately portraying the new attic and basement definitions to Town officials and homeowners as providing relief from the FAR regulations. This was because there was a provision for basements to be “exempt” from the FAR if it was less than three feet above ground using a complex grade plane calculation. The grade plane can only be measured by an engineer at a cost of several thousand dollars and is measured ten feet away from the house. Analysis of the building code requirements show that a minimum of 22 to 24 inches in height above the dirt is needed at the basement wall to meet code. If a homeowner wants a window in the basement it will easily exceed the 36-inch exemption possibility. Grading outside the house of more than one foot out to the ten-foot grade plane area would also cause the home to not be eligible for the “exemption”. We have found that few if any homes would qualify for the exemption. At the time it enacted the amended attic and basement definitions the P&Z tried to downplay the fact that previously only finished space was included and the amendment extended the definition to all attic and basement space, finished or not. The practical effect of this regulation is that what was once considered a 3,000 square foot home may now have to count 4,200 square feet toward FAR by adding in attic and basement area that was not previously counted. The same house has been made nonconforming without the homeowner even realizing it. On some newly constructed homes this has caused the construction of a sophisticated and expensive pedestal of retaining walls around the home to allow the basement to be exempt. The streetscape impact of this is that of a house built up on a pedestal compared to surrounding homes. Was this the desired effect of the P&Z- to make homes appear larger?

Does the loss of value to your home and property seem “appropriate” to you and the people of your district? You tell us. Please contact your constituents and ask if they are aware of the impact of the FAR on their property values and the associated loss of property rights. We have found that many homeowners are not even aware of the issue, until they try to apply for building permits to modify their home or attempt to sell it. They still think the regulation targeted oversized homes and are appalled to find out that their existing home is restricted.

What will it cost the Town of Greenwich taxpayers if the same old 1998 FAR’s are enacted?

The same 1998 regulations (even with the minimal “relief” proposed for conservation-zoned and undersized lots) could cause significant loss of property value in violation of the P&Z’s statutory responsibility to support property values (Connecticut General Statutes, Chapter 124, Sec. 8.2) and possibly constitute a “taking” of property value and rights. If so, this will lead to continued legal challenges that the Town will have to defend at an estimated cost of $50,000 - $100,000 in legal fees. But this is the least of it. The Town may also end up having to pay for damages in the millions of dollars to homeowners who have lost property value due to P&Z’s actions and the Grand List could also be reduced by the loss of property value to certain homes, shifting taxes to other taxpayers.

It is important to note that these legal fees are buried in the general legal budget, legal defense is provided by the Town Attorney’s office to the P&Z seemingly without regard for the merit of their case or the cost, and prior approval of such expense is not required from the BET or RTM. In fact, the P&Z has already spent a significant amount in legal fees unsuccessfully defending their 1998 FAR amendment that the Stamford Superior Court declared “null and void”. This serves as yet another instance where P&Z has not been held accountable for the consequences of their actions. However, the potential damages the Town might face should P&Z’s legal defense not prevail would be difficult to fund. It would not be fiscally prudent for the P&Z to enact FAR legislation without regard to the cost to the Town.

11. Does the P&Z have a well thought-out strategy for regulating house size and monitoring its consequences? The evidence so far suggests no. Further, P&Z does not appear to have built consensus around a strategy that clearly serves the public good. As we all know, the Stamford Superior Court declared the1998 FAR regulations adopted by P&Z “null and void” on April 19, 2002. Since then, P&Z has unconvincingly proposed adopting the exact same 1998 regulations on May 7^th, and again on June 28^th, 2002 - each time withdrawing their own proposal. For an agency with Planning in its name is there really a strategy if the P&Z repeatedly submits and withdraws its own proposals? On September 17^th, 2002, they proposed adopting the same 1998 FAR regulations for the fourth time, but with some slight adjustments for conservation zones and nonconforming lots in a seeming attempt to dampen public criticism. Upon review and simply put, these adjustments do not provide any real relief to homeowners of such lots.

P&Z Chair Louisa Stone stated on August 13, 2002, when they withdrew the June 28^th proposal, that P&Z’s staff would update their data regarding existing floor areas based on the existence of new construction since 1998, the new revaluation data available from the Assessor’s office, as well as the new definition of what floor area is counted (i.e., the highly restrictive inclusion of attics and basements) for purposes of calculating FAR. Mrs. Stone implied that a new FAR proposal would take that new data into consideration. Given P&Z’s statutory responsibility to support property values and minimize nonconformity when enacting new regulations, it is inconceivable that a review of this new data would lead directly to the same old 1998 FAR proposal, augmented by some minor “relief” elements. Requests to P&Z for that new data have been ignored. We are also not aware that the data within the Assessors’ Office can delineate the grade plane calculation to properly determine whether a basement should be included in the FAR calculation. This alone could cause a large degree of error within the FAR statistics and the P&Z does not seem to indicate any error level in their statistics.

P&Z has been making the same proposal for five years now. Isn’t it time for the RTM to be heard again on this important Town-wide issue and to provide clarification of the 1998 sense of the meeting resolution and guidance on what is considered “appropriate” regulation? New direction on this issue is needed.

CONCLUSION: Wouldn’t the Town of Greenwich be better off if P&Z took time to carefully study this complex issue with the objective of enacting legislation that would control streetscape in a manner that is reasonable from the homeowner’s point-of-view and meets statutory requirements? This would be a prudent decision and one P&Z should embrace at this critical juncture before it increases the Town’s exposure to unnecessary legal expense, potential damages, and the further criticisms of its citizens whose suggestions and pleadings for a rational and “appropriate” regulation have been consistently ignored. We ask the RTM to approve the resolution to provide guidance to the P&Z as to how to best go about regulating house size within the statutory boundaries set for it.

"RESOLVED, that given the importance of the character of our Town to the RTM and it's constituents, it is the sense of this meeting that the RTM recommends that the Planning and Zoning Commission define the problem that led to the passage of the 1998 FAR regulation, evaluate it's effectiveness and consider the concerns of Greenwich residents in developing an equitable regulation, through analysis of several alternatives, that protects the property values of all homeowners and minimizes the degree of nonconformity created prior to the enactment of any proposal through appropriate statutory procedures and in a fiscally conservative manner."