After much wringing of hands and gnashing of teeth following the Appellate Court’s decision late last year in MacKenzie v. Planning and Zoning Commission of Monroe, 146 Conn. App. 406 (2013), ruling that zoning regulations that permit a zoning commission to apply flexible setback and landscaping requirements in approving development applications are invalid, the question remains whether the MacKenzie decision is a turning point in the decades-long trend away from rigid site design standards or an isolated decision based on a terrible set of facts.

For those who have not heard the warnings about the MacKenzie decision, the case involved an appeal of a decision of the Monroe Planning and Zoning Commission granting a special permit and a zone change application to allow the construction of a McDonald’s restaurant on a 4.4 acre parcel on Main Street. The zoning designation of the lot was changed from residential to Design Business District to expand the commercial zone bordering the property.

After having gone through one public hearing regarding one development design, an alternative was presented that took advantage of two provisions of the Monroe zoning regulations allowing waiver or modification of certain dimensional requirements in that Design Business District. The parking area proposed in the new plan would extend into the 30-foot setback area along the northern property boundary and would not meet the requirement that the entire 30-foot setback in that area be maintained as a landscaped buffer. Although the property owner along that property boundary had no complaints regarding the reduced setback and buffer requirements, other property owners appealed the commission’s decision approving the parking area with the reduced setback and buffer.

The two regulations that the commission relied on to authorize reduction of the setback and buffer were extraordinarily broad. One of the regulations contained the schedule of dimensional requirements for the zone but provided that the “commission may modify lot area, frontage, minimum square and yard requirements where applied to a lot . . . so long as there is adequate provision for sewage disposal and water supply and so long as access to the public streets will not create traffic hazards . . . .” The second regulation, directly related to the Design Business District, provided that “where deemed appropriate . . . [the commission may approve] minor variations from the strict application of these regulations as will provide for the most appropriate use of land and as will protect the human health and safety and preserve the properties as will provide for the most orderly development of land . . . .” The court considered whether those two regulations unlawfully afforded the commission liberal discretion to waive or reduce the setbacks on a case-by-case basis.

The appeal first raised a procedural challenge to the granting of the zoning change. The dismissal of that aspect of the appeal was affirmed by the Appellate Court. The critical part of the decision involved the approval of the site plan and special permit allowing the construction of the restaurant with the reduced setback and buffers along the parking area.

There were three general themes at play in the court’s evaluation of those two regulations. First, the Zoning Enabling Act, Conn. Gen. Stat. § 8-2, specifically provides that regulations must be uniformly applied within a particular zone. Second, although it is recognized that special permit standards can be broadly stated and may afford the commission more discretion than other site development applications, that review remains administrative and should involve some objective framework under which the applications are decided. Finally, the regulation authorizing the zoning commission to modify or vary the requirements ordinarily applicable in the zone may infringe upon the statutory authority afforded to the zoning board of appeals as the only agency authorized to grant variances to zoning regulations. Viewed under those principles, the court determined that the regulations were invalid and that the approval of the restaurant plan was improperly granted.

So what does the decision mean? There is no doubt that the manner in which the development of property is regulated has evolved considerably in recent decades towards enabling more flexible and site-specific application of zoning standards and away from the “one size fits all” zoning that was commonplace decades ago. Tools such as floating zones, overlay zones, design plan development districts and creative site plan and special permits regulations have been developed in recent years and have generally received court approval. Only cases decided in the wake of MacKenzie, or a legislative amendment, will answer the question of whether the decision rolled back those efforts or whether it simply amounts to an isolated case involving particularly problematic regulations. A legislative initiative to reverse the holding was recently proposed by a regional planning agency but failed to garner enough legislative support in the current shortened legislative session.

We can only hope that post-MacKenzie decisions do not take the discussion regarding the role of the zoning board of appeals in issuing variances as the determining factor of whether regulations can include provisions authorizing differing dimensional requirements under certain conditions. With the limitation that a variance is authorized only when a hardship arises from unique characteristics of the land and restricts reasonable use and development of the site, variances to authorize changes in landscaping or dimensional standards that aren’t necessary to use the site would rarely, if ever, involve a true legal hardship.

We should also hope that the case does not infringe on flexibility in the procedural processing of applications. Plaintiffs challenging development approvals since MacKenzie have already argued that the decision prohibits a commission from determining on a case-by-case basis what information needs to be submitted by an applicant to enable the commission to conclude that the specific substantive regulations are satisfied. Under that rationale, if an applicant seeking a special permit to construct a new shopping mall development is required to undertake a major professional traffic study, so would an applicant of a tiny convenience store merely seeking a modified special permit to enable the existing store to remain open for an additional hour. If the courts go that far in applying MacKenzie, the furor over the decision is justified.

What we must take away from the MacKenzie decision is that the discretion afforded a commission by the regulations cannot be so broad that similarly situated properties and proposals can be treated differently at the pleasure of the commission. Hopefully, courts in the future will limit that decision to its facts when reviewing regulations that set forth more objective standards under which the use of different setbacks, landscaping or other dimension requirements are authorized for different development projects within a zone. If an existing regulation does not involve application of more objective standards to take into account specific relevant aspects of the property or neighborhood to enable the use of an alternative specified dimensional requirement, it should be amended in an effort to survive a MacKenzie challenge.

One alternative to be considered to avoid the problem of a “waiver” is a regulation in the table of dimensional standards that provides for alternative setbacks for properties in zones that warrant design flexibility. In doing so, the commission would determine the proper setback or dimensional standard to apply after evaluating regulatory criteria and actual evidence of record to justify the use of the alternative dimension rather than base it on the mere whim of the commission. Although not as flexible as the Monroe regulation, it would be far more likely to be consistent with the uniformity requirement and MacKenzie.

Although it is tempting to look for a legislative fix, statutory language cannot contain the kind of nuance that can be developed in case law following MacKenzie and would likely create another set of problems including granting too much flexibility and swinging the pendulum in favor of unchecked commission discretion. We can only wait and see if the outcry over that decision turns out to be justified.