The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH

(860) 240-8400

FAX (860) 240-8881

olr@po.state.ct.us

Room 5300

Legislative Office Building

Hartford, CT  06106-1591

July 21, 1997                                                                                                                                                                    97-R-0872

TO:                        

FROM:                  Matthew Ranelli, Associate Attorney

RE:                          Connecticut's Coastal Management Act

You asked for a description of the state and local relationship under the Coastal Management Act (CMA), the activities allowed in a coastal zone, and the setback requirements along the coast, rivers and other resources.

SUMMARY

The CMA delegates the administration of a statewide policy of planned coastal development to local zoning and planning. Essentially, towns administer the program and issue permits based on criteria and goals established in the CMA.  Towns act on their own, but may request assistance from the state Department of Environmental Protection (DEP).

Projects proposed along the coast must submit a coastal site plan for review by the same municipal board or commission that reviews other land use applications.  The board must review the plan for consistency with the state=s criteria and any additional criteria established in the town plan of development and ordinances.  The board may approve, deny, or modify an application. Towns may require a performance bond and measures to mitigate a project=s adverse effects, but the CMA does not specify what type of mitigation measure.

The act does not specify setback requirements from coastal resources, but towns have adopted setbacks.

Other state and federal programs  protect coastal resources.  Compliance with the CMA does not exempt projects from these other programs or from local land use requirements.

BACKGROUND

The federal Coastal Zone Management Act, passed in 1972, required coastal and Great Lake states to develop coastal zone management programs.  One of the act=s objectives is to encourage states and municipalities to exercise their full authority over lands and waters in the coastal zone.  Connecticut passed its Coastal Management Act in 1979.  The act establishes standards by which all activities within the coastal zone may be reviewed by state and municipal authorities.  It includes an extensive list of legislative goals and policies (attached) and identifies 14 coastal resource categories to be considered in coastal planning.  The objectives and policies express a clear preference for preservation of waterfront sites or development of those sites for water-dependant uses.  The act authorizes municipalities to adopt municipal coastal programs that are consistent with the state=s objectives and policies.  It requires the DEP commissioner to prepare model municipal regulations to assist towns in developing programs.  In addition, the act requires towns, regardless of whether they have a program, to review coastal site plans (for activities at least partially within coastal areas) submitted to the town zoning board, planning commission, or zoning board of appeals.

The act defines several important terms such as coastal boundary, coastal resources, adverse impacts on coastal resources, and water-dependant uses.  The area of land and water covered by the act runs from the limit of the state=s jurisdiction in Long Island Sound to the furthest inward boundary in coastal towns of the following; (1) the contour line of a 100 year frequency coastal flood zone, (2) a 1,000 foot linear setback measured from the mean high water, or (3) a 1,000 foot setback of from the Tidal Wetlands Act boundary.

STATE AND LOCAL RELATIONSHIP UNDER THE CMA

The CMA coordinates federal, state, and local efforts to consider the development of the state=s coast and coastal resources.  It authorizes towns to adopt coastal management programs for  the area of the town that is within the coastal boundary and landward of the mean high-water mark (waterward of the mark is covered by the state and federal acts, and a small area subject to town zoning).  The DEP must review municipal programs before they are adopted.  At least 37 of the 41 towns with coastal land have adopted such programs.

Towns with programs must revise the portion of  their municipal plan of conservation and development that affects the coastal area.  The revision must include (1) an identification and written description of the town=s major coastal‑related issues and problems, both immediate and long‑term, such as erosion, flooding, recreational facilities, and utilization of port facilities; (2) a description of the municipal boards, commissions, and officials responsible for implementing and enforcing the coastal program, and (3) a description of enforcement procedures and a description of continuing methods of involving the public in implementing of the municipal coastal program.  And they must revise existing municipal zoning regulations and various other land use regulations and ordinances. Towns that have not adopted a municipal plan of conservation and development may adopt a municipal coastal plan of development solely for that area within the coastal boundary.

Once towns have revised the required plans and ordinances, and they have been reviewed by DEP and adopted, they administer the program and issue permits landward of the high-water mark on their own. They may request assistance and expertise from the DEP Coastal Programs Office, but they are only required to do so if the permit application is for a shoreline flood and erosion structure (CGS ' 22a-109d).

The CMA requires towns to conduct coastal site plan reviews for proposed projects within the coastal area for which (1) plans must also be submitted to the zoning commission or the planning commission for subdivision or resubdivision; (2) applications for a special exception, special permit, or variance must be submitted to a planning commission, zoning commission, or zoning board of appeals; or (3) applications for a proposed municipal project must be referred to a planning commission.  The review may be conducted simultaneously with other reviews by the municipal agency that normally undertakes land use reviews.

A coastal site plan must contain the location of coastal resources on and adjacent to the site; a description of the entire project with appropriate plans, indicating project location, design, timing, and methods of construction; an assessment of the capability of the resources to accommodate the proposed use; an assessment of the suitability of the project for the proposed site; an evaluation of the potential beneficial and adverse impacts of the project and a description of proposed methods to mitigate the adverse effects on coastal resources.

The town must consider specific criteria, including whether the project is a water-dependant use and the possible adverse effects on coastal resources.  It may approve, modify, condition or deny the proposed activity based on the CMA criteria.

The coastal site plan review does not exempt the project form other review and requirements such as planning and zoning.  Towns are prohibited from issuing a building permit or certificate of occupancy to projects that have not gone through the coastal site plan review process. (22a-109(h)).

The CMA authorizes towns to specifically exempt certain minor activities from the coastal site plan review process.  The activities include: (1) minor additions to or modifications of existing buildings or detached accessory buildings, such as garages and utility sheds; (2) construction of new or modification of existing structures incidental to the enjoyment and maintenance of residential property;  (3) construction of new or modification of existing on‑premise structures such as fences, walls, pedestrian walks and terraces, and underground utility connections; (4) construction of an individual single‑family residential structure, with certain exceptions; (5) activities conserving or preserving soil, vegetation, water, fish, shellfish, wildlife, and other coastal land and water resources; (6) interior modifications to buildings, and (7) minor changes in use of a building, structure, or property.

ACTIVITIES ALLOWED IN THE COASTAL AREA

The main criteria for determining whether an activity is allowed is, in addition to satisfying other municipal land use requirements, whether its potential adverse impacts of on both coastal resources and future water‑dependent development activities are acceptable.  The act does not prohibit any particular activities such as manufacturing, instead it requires an analysis of the adverse effects of activities.

Adverse impacts on coastal resources include (1) degrading water quality, existing circulation patterns, natural erosion patterns, natural or existing drainage patterns, visual quality, essential wildlife, finfish, or shellfish habitat, tidal wetlands, beaches, dune, rocky shorefronts, bluffs, and escarpments and (2) increasing the coastal flood hazard.  Adverse impacts on future water dependant uses include (1) locating a non-water-dependant use on a site with, or that is appropriate for, a water-dependant use, and (2) siting a non-water-dependant use which would substantially reduce or inhibit public access to the water.

In determining the acceptability of potential adverse impacts of a proposed activity described, the municipal board or commission must: (1) consider the characteristics of the site, including the location and condition of any of the coastal resources; (2) consider the potential effects of  the proposed activity, and (3) identify conflicts between the proposed activity and any CMA goal or policy.  The burden of demonstrating that the project is consistent with the CMA goals and that it does not have unacceptable adverse impacts falls on the applicant, not the municipal board.

Coastal resources generally include the terrestrial and estuarine ecosystem formed along the coastal waters.  The CMA lists 14 specific coastal resources (see Table 1 at end of report).

If the board approves the project, it must make a written finding that the proposed activity with any conditions or modifications imposed by the board is consistent with the CMA and incorporates as all reasonable measures which would mitigate the adverse impacts of on both coastal resources and future water‑dependent development activities.

The CMA does not specify the mitigation activities that municipal programs can require, except that they may require a performance bond.  Several municipal programs have required either public vistas, access, or marinas to mitigate the effect of projects.  There is one court decision regarding the appropriateness of a town=s mitigation measure.  In DeBeradinis v. Zoning Commission, 228 Conn. 187 (1994), the town had  approved a coastal site plan with the condition that the applicant provide a public access way to the waterfront.  The court rejected the town=s mitigation measuse (and the application) becuase it did not mitiage the project=s adverse affects.

Towns may also require mitigation measures under the Inland Wetlands and Watercourses Act. They may require reasonable measures to mitigate the effect of the regulated activity and to (1) prevent or minimize pollution; (2) maintain or enhance existing environmental quality; and (3) restore, enhance, or create productive wetland or watercourse resources.

SETBACKS

The CMA does not establish, or require towns to establish,  specific setbacks from waterways or coastal resources.  Some towns have established setbacks from certain coastal resources.  Stamford, for example, calls for setbacks from bluffs and watercourses (the municipal plan does not specify the size of the setback).  And other statutes require or allow towns to require setbacks or buffers from protected resources. The Inland Wetlands and Watercourses Act, for example, authorizes towns to regulate activities in buffer areas but allows them to determine the size of the area (CGS ' 22a-42a).

OTHER COASTAL AND WATER PROTECTION STATUTES

Several other programs administered by the federal, state, and local governments apply to coastal projects.  The Tidal Wetlands program requires a state permit for projects that affect the state=s tidal wetlands (including inland wetlands within the coastal boundary) (CGS '' 22a-28-35a).  The state structures, dredging, and fill program requires projects involving such activities on the water to have a state permit (CGS ' 22a-92).  The Clean Water Act authorizes the  U.S. Army Corps of Engineers to require a federal permit for projects between the mean high-water mark and the extreme high-tide line (the Corps may issue a programmatic general permit to allow states to authorize activities in this area) (42 U.S.C ' 4701 et seq). These programs are administered by the DEP Office of Long Island Sound Programs. The office integrates the application and permitting process for projects covered by more than one program.

COASTAL RESOURCES IDENTIFIED IN THE CMA

Table 1: Coastal Resources Specified in CMA

Coastal Resources	Description
Coastal bluffs and escarpments	Naturally eroding shorelands marked by dynamic escarpments or sea cliffs which have slope angles that constitute an intricate adjustment between erosion, substrate, drainage, and degree of plant cover.
Rocky shorefronts	Shorefront composed of bedrock, boulders and cobbles that are highly erosion‑resistant and are an insignificant source of sediments for other coastal landforms.
Beaches and dunes	Beach systems including barrier beach spits and tombolos, barrier beaches, pocket beaches, land contact beaches, and related dunes and sandflats.
Intertidal flats	Very gently sloping or flat areas located between high and low tides composed of muddy, silty, and fine sandy sediments and generally devoid of vegetation.
Tidal wetlands	Defined in the Tidal Wetlands Act.
Freshwater wetlands and watercourses	Defined in the Inland Wetlands and Watercourses Act.
Estuarine embayments	A protected coastal body of water with an open connection to the sea in which saline sea water is measurably diluted by fresh water including tidal rivers, bays, lagoons, and coves.
Coastal hazard areas	Land areas inundated during coastal storm events or subject to erosion induced by such events, including flood hazard areas as defined and determined by the National Flood Insurance Act, and all erosion hazard areas as determined by the commissioner.
Developed shorefront	Harbor areas which have been highly engineered and developed resulting in the functional impairment or substantial alteration of their natural physiographic features or systems.
Island	Land surrounded on all sides by water.
Nearshore waters	The area comprised of those waters and their substrates lying between mean high water and a depth approximated by the 10 meter contour.
Offshore waters	The area comprised of those waters and their substrates lying seaward of a depth approximated by the 10 meter contour.
Shorelands	Land areas within the coastal boundary exclusive of coastal hazard areas, which are not subject to dynamic coastal processes and which are comprised of typical upland features such as bedrock hills, till hills, and drumlins.
Shellfish concentration areas	Actual, potential, or historic areas in coastal waters, in which one or more species of shellfish aggregate.

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OLR