Laws of the Land and Land of the Laws

Government is good at making rules. It is an easy thing to do. It is also tricky thing to do. Laws can take on their own lives. They can populate faster than rabbits. They can expand into things that may not be related to their original intent. They can become outdated, burdensome and even unfair if left unwatched and unmaintained. They need to be enforced to be effective. They sometimes cause harm more than benefit through the universal law of unintended consequences.

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This is not to say that rules are bad things. Federal and state laws, and municipal ordinances and regulations, do serve important roles in keeping our society as civilized as possible. The problems arise with how laws are created, administered and enforced. The processes can become the problems, not the good people working in government. The more complex are these processes, the more that can go awry. It is our responsibility to watch what is being done so as to keep government serving not just us as individual citizens but also all of us as a community.

For your town’s planning and zoning commission, this is a paramount concern. Private and public land ownership, stewardship and use affect all of us every day. Because planning and zoning commissions exercise the constitutionally recognized “police powers” of government in regulating land use, zoning and subdivision regulations are real examples of how the U.S. Constitution is used at the local level. These regulations are figuratively and literally the law of the land for your town.

If regulations are left static, then they can become outdated. There are two unintended risks with this scenario that occur by default. First, the regulations could new types of land use not previously envisioned. The land uses may be incompatible with your overall community or with certain neighborhoods of your town. Second, the regulations could prohibit land uses that over time have been deemed necessary or desirable by your town,

If regulations are kept too restrictive, then needed flexibility is lost. Not every land use activity is the same as another, even if they are similar. Various parcels of land in your town can have different or unique characteristics and/or surroundings. No set of regulations can be written with such precise, lasting detail so as to properly deal with each and every type and scope of land use application that can be thought of now or in the future. Having flexibility in the regulations allows the regulations to still be very functional in these circumstances while following general philosophies, themes, concepts and laws of planning and zoning.

If regulations are not designed to match appropriate economic development, then two things can happen, sometimes at the same time. First, the necessary diversification of your town’s tax base won’t happen, which means residential property owners shoulder the burden of government services, such as public works and public education. Second, inappropriate economic development, focused only on generating more and more non-residential tax revenue, without regard to other aspects of your town, can occur, as we have seen in other towns and cities in Connecticut.

If regulations are left unattended, then they can become unintentionally over-burdensome. This limits the lawful and proper use of a person’s private land.

If new regulations are created to prevent specific repeat violations of the regulations, then an unintended consequence can be that too strict of a rule can unfairly affect many law-abiding people.

If regulations are not enforced, then they are in essence useless. This happens when too many rules are created beyond the reality of personnel, resource, money and time limitations to handle them. If regulations are outright unenforceable (ie, have no legal standing), then why have them in the first place. If regulations are enforced in a heavy handed manner, then an unfair situation occurs, making “criminals” of law-abiding people who may have unknowingly violated the regulations. Even worse, it does not give these people a reasonable opportunity to correct the violations.

If regulations are created before planning is done, then the proper thinking about what is needed and not needed, and how things are to be done and not to be done, gets confounded. This is putting the cart before the horse. If regulations are created or changed in isolation without looking at all of the other regulations, then this can cause other regulations to become countermanded or confusing. Not a good thing.

Planning and zoning commissions must always exercise practical common sense, thoroughness, due diligence, consistency and fairness because of their broad scope of authority and because of the fundamental importance land use has for your town and for you. It may involve a lot of legal “mumbo jumbo”. It may require an eagle eye to details. It may require extra time. Yet, at the end of the day, the goal is to do the best possible to make land use regulations function as intended, work for your community and you on a continual basis, and abide by all applicable laws. It all requires responsibility not just in what is done but also in how it is done.

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