Falmouth residents speak out against proposed natural resource protections

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FALMOUTH — The town is once again weighing tighter natural resource protection rules against the potential cost to property owners.

The issue came before the Town Council Monday night, Jan. 25, with the town’s Long Range Planning Advisory Committee’s presentation of highlights from its 84-page final report. It was followed by a public hearing and council discussion pending its formal introduction at a later date.

The town spent $25,000 a few years ago on environmental consultants, and the LPAC has grappled for the past three years with recommending a level of protection for vernal pools, upland habitat and wetlands.

In May 2008, the council adopted a policy that would increase buffers and reduce development potential to preserve these natural resources. Responsibility for drafting the ordinance language was assigned to LPAC and planning staff. The committee’s work culminated Monday night with the presentation of the report, which includes 25 pages of new and rewritten ordinance language.

Among the points the committee addressed were the reasons for proposing provisions that differed from state regulations, changes to dimensional standards and compromises it made in its recommendations.

With an assertion that the town is basing its decision on science and not politics, committee member Kurt Klebe said the state’s science is outdated and does not allow for adequate protection of upland habitat. It also regulates only significant vernal pools and not all vernal pools, he said.

“Falmouth has always gone beyond the state in terms of regulating vernal pools,” Klebe said. “And the ordinance that we’re presenting continues with that history and does go beyond the state’s regulations in that instance.”

The state provides means of compensation by creation and restoration that are not recommended because of procedural and regulatory challenges. In its policy, the state also allows flexibility that Klebe said would not be possible for local authorities.

For freshwater wetlands, a 50-foot setback would be maintained. But for wetlands of special significance and vernal pools, the buffer, currently at 50 feet with a 100-foot structural setback for high-value wetlands, would be expanded to 100 feet.

Significant vernal pools would require a 100-foot buffer and restrict to 25 percent the disturbance in the area between 100 and 250 feet. The threshold for wetland filling would be increased to 4,300 feet from 4,000 feet and finger wetlands would be exempt.

The dimensional standards would also include a 750-foot “area of concern” around vernal pools that Klebe said was not a regulatory dimension, but a reference point to minimize the impact of resources within that area.

Among the compromises is the an exemption for single-family lot owners or homeowners and a one-step development design process to replace the previously recommended alternatives analysis, which would have required developers to submit evidence of best design in a multi-step process. Regulation of potential vernal pools recommended by the council was omitted.

Though council chambers Monday were not bursting with people, as they were a year and a half ago, seats were mostly filled, occupied by committee members and several property owners. During the public hearing, seven of eight people who spoke opposed the restrictions.

“There’s not a balance here in being responsible in understanding the financial impact to people before initiating changes,” said Lynn Foley, of Stonewall Way, who owns 80 acres in tree growth in the Highland Watershed area. “I get to pay you with my land or my money – that’s what I’m reading. The only agenda I see in there is kind of one-sided.”

Referring to the committee’s recommendation for a mitigation provision that would require land owners to pay according to a set formula to be able to use portions of their land protected under the ordinance, Foley said it would increase the amount of money the town would have to buy open space, while decreasing the value of land to property owners.

“I don’t even have a plan to develop my property, but I plan to be a good steward of my land and understand its value and not have it taken away out of my ignorance,” she said.

But Klebe pointed out that the current ordinance has no provision for compensation.

And Councilor Bonny Rodden said it is “important to realize this impact on land owners has been of great concern to the council, as well.”

Faith Varney, of Falmouth Road, reminded listeners that a 100-foot buffer is actually three-quarters of an acre, a 250-foot buffer is 4 1/2 acres, and a 750-foot buffer is more than 40 acres.

Eduard vanLoenen, of Falmouth Road, became frustrated when his request for examples of cost to land owners could not be answered.

“I would have thought the committee would have been prepared for this kind of level of questioning, because it is a very detailed ordinance; it isn’t just some superficial thing,” he said. “It affects people where they live, it affects people who have land they want to pass on to their kids, land they want to use to pay for kids’ college tuitions. This is not just something that affects the salamanders; it affects human beings.”

In a phone interview Tuesday, vanLoenen said he was surprised at the “very shallow presentation” and added that owners must be compensated.

“This will take away their rights to the value of their land,” he said.

He echoed the desire expressed by several speakers to create a financial matrix that would demonstrate the impact to land owners.

But Community Development Director Amanda Stearns on Tuesday compared the risks of owning land to the volatility of the stock market.

“Zoning by its nature restricts uses of land whether for resource protection, for aesthetics, or for pubic safety; it is by its nature restrictive,” she said. “We passed 18 zoning amendments in the last few years. What might be valuable today may not be valuable in three years. To single out resources protection as a regulatory component that should be treated separately and that owners should be compensated for a loss, which we don’t know they have, we could argue that philosophy would apply to any zoning amendment.”

Stearns said the committee debated the issues philosophically and not politically. Its charge, she said, was to be apolitical. “Once it enters the council arena it becomes political,” she said.

After Monday’s public hearing, councilors had few suggestions regarding the content and recommendations of the presentation. Several asked the committee to cite some examples of how land owners might be affected financially.

The report and proposed ordinance language will be discussed by the Community Development Committee in February and eventually will come back to the council for an official introduction, providing the public with another opportunity for comment.

Peggy Roberts can be reached at 781-3661 ext. 125 or [email protected].