Planning Board, Dec. 22, 2015 RCL Notes

Click Here: Link to Agenda:

Click Here: Link to Town Video Streaming:

Members of the Planning Board present:

Bill Epperson, Chairman; Phil Winslow, Vice-Chairman;  Priscilla Jenness, Selectmen’s Rep: Melvin Low: Jeffrey Quinn, Alternate: Anne Crotty Alternate: JM Lord

Absent:

Jerry Gittlein; Keriann Roman; Tom McCormick, Clerk

The meeting  agenda consisted of:

1. A Public Hearing for a revised Overlay District

Wetlands Surface Waters-Conservation Overlay District

“Replace the present Wetlands Conservation District with a new Wetlands and Surface Waters-Conservation Overlay District. The proposed new district would be enacted as an Innovative Land Used Control under NH RSA 674:21. The new district makes significant changes from the present district, including: (1) redefining the wetlands buffer to include land within 100 ft. of wetlands greater than 3000 sq. ft. whereas the present buffer includes land within 75 ft. of wetlands of 10,000 contiguous sq. ft.; (2) establishing a new Vegetative Zone within 50 ft. of wetlands and surface waters in which various restrictions on tree cutting and grading would apply; (3) establishing a new process by which the planning board may grant Conditional Use Permits for uses not allowed in the district or in the wetlands buffer and establishing standards for the granting of Conditional Use Permits; (4) incorporating several new definitions into the zoning ordinance; (5) expanding the purposes of the district; (6) requiring conservation commission review and comment on applications for special exceptions and conditional use permits; (7) revising the list of uses permitted in the district and the requirements for uses permitted by special exception; (8) revising the list of uses permitted in the wetlands buffer; and (9) revising the procedures for resolving disputes about wetlands boundaries.â€

2. Discussion of two proposed zoning amendments for potential Public Hearings

• Proposed Zoning Amendment 2016-07: Re: Exemptions from Wetlands Conservation  District for Utilities;
• Revisions to Proposed Amendment 2016-06: Re: Certificate of Occupancy Permits for apartment, cabins and motels

Summary:

After a 3 ^½  hour meeting and extensive public testimony from the large crowd and debate the Planning Board voted

• To “table†the Wetlands Overlay and Certificate of Occupancy Permits for further study in 2016. Tabling means the amendments will not be on the March 2016 Warrant/Ballot.
• To have another public hearing on the Exemptions from Wetlands for Utilities.

Wetlands (00.3.00 elapsed)

The discussion of the Wetlands amendment occupied the majority of the meeting time.

The majority of the public in attendance  were concerned about:

1. Notification and lack of public input to the complex legislation. (see RCL Discussion specific to this issue here  Click Here )
2. An error in the notice regarding the change in protected wetland size, the notice saying the change was from 10,000 sq feet to 3000 square feet whereas what was proposed was a change from 43,500 square feet (one acre) to 3000 square feet
3. What would be grandfathered or not from the requirements
4. Lack of a map showing the impact lot by lot of the reduction in wetland size to be protected, the increase in buffer width to 100’ for all wetlands and the 50’ Vegetative Zone.
5. Perceived “taking†of development rights and property due to the buffer requirements, the 50’ vegetated zone and impact on lawns, the smaller size of protected wetlands, the impact of the smaller protected wetland size when combined with 100’ buffers in reducing developable land town wide.
6. The amendment was “over reachingâ€.
7. Confusion on what was “included†as wetlands with the ocean andRyeHarbornow included in proposed Overlay. This is a change from prior Wetlands Overlay with complex implications..
8. Lack of explanation by the Conservation Commission or Planning Board as to the “science†and basis behind the buffer widths and wetlands size as to pollution impacts, particularly fertilizers.  The Conservation Commission stating the wetlands sizes were based on neighboring towns. There was also questioning of the “science†of climate change, wetlands being a key buffer to rising waters.
9. Concern by attorneys present who represent applicants to land use boards inRyethat changing from a variance (ZBA) process to Planning Board Conditional Use Permits would leave the only recourse as straight going to court as a ZBA decision can have a request for re-consideration while a Planning Board decision cannot.
10. Concern that even members of the board were confused and not able to answer some of the questions above, especially as the Chair of the Rules and Regulations sub-committee of the Planning Board responsible for drafting, was not able to attend both Public Hearings: December 8^th and December 22^nd.

Planning board members made valid comments at the public hearing, however, one would have expected such comments could have been made earlier in the process.  One alternate member did not attend the December 8^th meeting when this amendment was approved for a public hearing, yet was “the first in line†to deliberate on the amendment on Dec. 22^nd.   Another alternate, who initially made the motion to “dismiss†the amendment, did not participate in the process of drafting the amendment.

A minority of the public speaking as well as members of the Conservation Commission JaciGrote, Sally King Susan Mcfarland, and consultant, Tracy Degnan, and Planning Board members Chair Epperson, Selectwoman Jenness and Mel Low spoke strongly in favor of the need for stronger wetlands protection for pollution reduction, wildlife protection and flood buffering but agreeing with the majority of speakers that more study, potential revisions and more public input was required. They stressed the importance of wetlands and buffers to mitigating the effects of sea level rise and very large storms and the importance of clean water. Other members of the public focused on the new Wetlands Overlay having an on reducing pollution, in particular in the Parsons Creek Watershed.

The Wetlands Overlay was tabled per motion of Jeff Quinn. All voted in favor.

Discussion prior to next hearing about getting people involved in the loop as far as notifications and public input ((2:30.00 elapsed)

Attorney Donovan discusses a “starting point†draft for further 2016 work on the Wetlands in 2016 (2:32.00 elapsed)

2016-07: Re: Exemptions from Wetlands Conservation  District for Utilities (2:38.30 elapsed)

This amendment was initially related to the Wetlands changes. It concerns utility work  (trenching, poles, etc…) along rights of way (state, town, private) which are in the wetlands buffer. Currently any such work requires a variance from the ZBA. The amendment would exempt such work from variances but require use of  Best Management Practices (BMP) for storm water management and low impact. Variances are still required for such work in buffers and wetlands on private lots not subject to utility rights of way. Given the Wetlands change was tabled, revision to the language is required and thus another public hearing.

Certificate of Occupancy Permits for apartment, cabins and motels (2:49.20 elapsed)

The amendment sought to create a mechanism expanding the inspection of rental units from the existing tourist cabins to all rental apartments, cabins, and motels.

The amendment generated extensive public comment and objection at the Dec 8^th Planning Board Hearing.. A subsequent Planning Board Rules and Regulations Committee meeting on Dec. 15 did further editing wherein grandfathered existing rental units were not subject to inspection and certificates. (See RCL Notes for the Dec. 15 Rules and Regulations Committee here Click Here.   https://ryecivicleague.org/?p=2753). Members of the public questioned if the editing actually removed the grandfathered units. The Chair of the Rule and Regulations Committee, Kerri Ann Roman was not present to explain the changes due to a prior work commitment.

The public and members of the board agreed that safety of any residence was of primary importance but several questioned the need for the amendment, were worried about the cost to administer and comply, asked for details on the magnitude of potential problems, and questioned if “off the books†currently unknown rental units in town would comply.  The Building Inspector Peter Rowell, under whose impetus the amendment was created, was not able to attend but the reasoning stated was that since seasonal tourist cabins/units are currently subject to some inspection all rental units should be as well.

Quinn made a motion to table until 2016, said motion appeared to not be seconded.  There was some discussion of the further editing and that any changes would be substantive enough to require another public hearing. Jenness attempted to make a motion to have a second hearing, seconded by Low. The amendment was tabled to 2016 per the original motion by Jeff Quinn. The vote was 4 (Quinn, Epperson, Lord, and Crotty) to table, 3 against (Jenness, Low, Winslow). Crotty attempted to abstain but was encouraged to vote by Chair Epperson.

Civic League Analysis-Zoning Ordinance Amendment Public Notice and Public Input

Introduction

Members of the public complained at the December 8^t and December 22^nd, 2015 Planning Board public hearings, as well as during the Rules and Regulations meeting on December 15^t,th, that the 2016 Proposed Zoning Amendments had been poorly advertised.

It appears that all meetings were legally noticed, at the minimum of what is required by law, but not “advertised†in any substantive fashion. Systemic issues in the meetings notifications process, the difficulty in following what is discussed in work sessions in person, in the minutes, and via video and the lack of public education and outreach for input through out the process led at least in part to the tabling of the 2 amendments.

The Zoning Amendment Process

The process of studying, and drafting zoning amendments may be initiated by members of the Planning Board, Town’s legal counsel due to changes in state or federal law requiring changes to Rye’s Ordinance, Town staff, other boards and commissions, via a citizen proposing to the board, or via a citizen petition amendment which may or may not be eventually recommended by the Planning Board.

• In the case of the Wetlands Overlay the amendment was initiated by the Conservation Commission with funding from the Planning Board for study and drafting.
• In the case of the Certificate of Occupancy the amendment was initiated by the Building Inspector.

Neither of these amendments had ad-hoc citizen input in the drafting process beyond a very few comments offered by 2 citizens who each attended, alone, many of the Rules and Regs meetings.

The Steps in the Process

1. An amendment is first discussed and worked on by the Planning Board Rules and Regulations sub committee. In the case of the Wetlands amendment this was in collaboration with the Conservation Commission consultant responsible for study and initial drafting. After initial drafting the Town attorney reviews and suggests changes and edits.
2. Rules and Regulations meeting are public but “work sessions†and generally do not allow public input, but there are rare exceptions especially if there is a crowd. The drafts are “on paper†and are not freely distributed to the public in attendance, occasionally a copy is provided to the public to follow along, but the public can never the leave the meeting with a copy of a draft.
3. Following what is being discussed in person, in the minutes of these meetings and even via the recent online video (see timeline below) is very difficult, if not impossible, to say the least, particularly for long complex amendments (11 pages) such as the proposed Wetlands. See Minutes example: http://www.town.rye.nh.us/Pages/RyeNH_PlanningMin/Subcommittee Minutes/Rules_Regs/RR_Minutes_11-17-15.pdf) 
4. After an amendment leaves the Rules and Regulations Committee the Planning Board discusses it with public comment at the discretion of the Chairman.  Again the topic may be difficult to follow. The board may chose to vote to schedule the amendment for a Public Hearing or return to the Rules and Regs Committee for further work.