Falmouth debate over vernal pools continues as ordinance is sent back to committee

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FALMOUTH — The debate over vernal pool protections will continue.

A Town Council vote on the proposed Resource Protection Ordinance has been delayed so changes can be made to wording and definitions.

Last week the Planning Board voted unanimously to send the Resource Protection Ordinance to the council with a recommendation of ought not to pass due to the board’s concerns about a lack of administrative clarity.

As a result, the ordinance will return to the Community Development Committee for further revision. As long as future changes are not substantive, the ordinance will not have to go back through the public hearing process.

The proposed natural resources ordinance would go beyond the state’s protection of vernal pools.

“I’m an individual landowner, not a developer,” Lynn Foley said during a public hearing on the ordinance at last week’s council meeting. “I’m on a private way, I don’t have public sewer, don’t have a public well. You don’t pay for my plowing. I don’t want you to. I appreciate that independence. I don’t appreciate what I see happening. I don’t see the protection of land owner rights.”

Several other land owners spoke out against the ordinance during the hearing, citing devaluation of land as a significant concern.

The ordinance would require a 100-foot setback from all significant and insignificant vernal pools and only allow up to 25 percent alterations to the area between 100 feet and 250 feet of significant vernal pools. The pools, most of which appear in the spring, provide breeding areas for salamanders and frogs.

A 2009 geographic threat assessment study completed by Robert Baldwin of Clemson University and Phillip deMaynadier of the Maine Department of Inland Fisheries and Wildlife found that current conservation lands and regulatory practices failed to protect 46 percent of potential breeding pools and 80 percent of adjacent non-breeding habitat surveyed.

The study examined the impact of development pressure on breeding amphibian populations and highlighted the importance of conservation planning during the early stages of urbanization.

“I don’t see this as an initiative to control development. There are many creative ways to work around vernal pools and natural resources. I don’t really see this as a significant obstacle to business development in this town,” Falmouth resident Caleb Hemphill said during the public hearing last week.

Council Chairwoman Cathy Breen said she wants to see the vernal pools protected because she feels the state compromised too much on its regulations.

“The science of vernal pools is still evolving. Based on the newer science, I would like to do a better job than the state,” Breen said.

Others are calling into question the motivation behind the ordinance.

“In my opinion, any attempt on vernal pools or deer yarding is just a veiled disguise to take property rights away,” Councilor David Libby said.

Libby, who runs a tower construction company, said the fact that commercial areas are exempt from the setback requirement shows that the ordinance is unfairly targeting residential development.

“This is a money and a land grab,” he said.

Real estate developer Willy Audet echoed Libby’s sentiment.

“If Wal-Mart wanted to come in and build, they’d be exempt from this,” Audet said.

Breen said the commercial real estate exemption would encourage more commercial growth in the areas that are already zoned for it, such as the Route 1 corridor.

“A governing body is not allowed to take someone’s property, but we are allowed to regulate it,” Breen said. “Zoning often has individual winners and losers. The purpose is the public good.”

Audet said he understands the need to protect natural resources, but pointed to a development his company created 10 years ago on Veronica Lane. Five of the homes in the development would have been within the proposed setback requirement of a vernal pool.

“These are expensive homes. This is a nice neighborhood. We would really lose the ability to do this,” he said.

The Veronica Lane example, which he showed on a map during last week’s public hearing, was built within the conservation laws of the time, requiring 50 percent of the land dedicated to open space. It also required Audet to get setback variances for several wetlands in order to build a road to reach all the homes.

He said he has asked the town’s Planning Department to investigate whether this development would be possible under the proposed ordinance.

“Developers put a lot of thought into designing the locations of lots. It’s a craft,” Audet said. “Everyone wants to protect the environment, but the Comprehensive Plan calls for moderate growth. They’ve made it quite difficult.”

Emily Parkhurst can be reached at 781-3661 ext. 125 or [email protected]