OLD LYME PLANNING COMMISSION
SPECIAL MEETING/WORKSHOP
MARCH 4, 2010
PRESENT WERE: Harold Thompson, Steve Ross, Robert McCarthy and Chris Kerr. Also present were Diana Atwood Johnson, Ed Cassella and Kim Groves.
DISCUSSION OF PROPOSED REVISIONS TO THE SUBDIVISION REGULATIONS AS THEY PERTAIN TO OPEN SPACE
Diana Atwood Johnson stated she attended a Selectmen’s Meeting on Monday to discuss the proposed ordinance to establish an Open Space Commission. She stated that Selectmen Skip Sibley suggested holding a workshop between all the land use commissions to better understand each commission’s role and how they relate and impact one another.
The commission discussed the various roles of the Old Lyme Conservation Trust, Conservation Commission, The Nature Conservancy and the Open Space Committee and how their roles interact with one another.
Thompson stated at the last meeting the commission discussed the retention of ownership of the open space parcels not taken by the town. Discussion ensued about homeowner’s associations, public access and conservation easements.
Ross stated that all the uses of open space need to be considered. He stated that walking trails and public use is only one purpose and therefore all uses should to be considered such as wetlands, protection of natural resources, water sheds, etc which are all legitimate and in fact primary uses for open space, He stated in these instances he feels that conservation easements work just as well if not better because specific areas can be protected.
Ross stated that he did not feel that making the open space regulations much more restrictive was necessary because the commission does look at each particular development on its own merits and since they are all so different they should not be placed into a common mold. Johnson stated she did not feel the proposed regulations were much more restrictive and stated that most of it is what exists in the regulations as they are today.
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Johnson stated there is public access on public land but there is also private access. Therefore, she stated a homeowner’s association can in fact own open space and have trails on it with it only open to the residents of that area and felt this was perfectly reasonable. She stated association open space is not used much anymore because homeowner’s associations do not want to take on the additional responsibility
of trail maintenance and the expense of insurance so they would rather give it to the town so it is liable. Johnson further stated she did not feel that the town should dictate what the people should do with the land in the associations such as requiring playgrounds, etc. therefore that language has been adjusted in that section.
Johnson stated in the current definition it states that water can qualify as open space and she felt that opens the door for people to give water. Ross stated in the last subdivision the town was able to get both water and land. Johnson stated that water does not meet the definition of open space land. She stated it is not land. Ross stated it is protecting a natural resource. Johnson stated it is self-protecting. Thompson expressed concern over completing eliminating water because there are a lot of areas that are seasonally wet. Johnson stated that is a different definition that is also defined.
Cassella stated in some cases water can be used for swimming and can be a positive piece of open space. He stated for example in Essex there is a large area of open space with a pond that is used for sailboat racing and also contains a dog park and has become a terrific area for recreational use. He asked if the area that was water would be discounted because it is a lake or pond. Johnson stated it is a town owned pond for the purposes of recreation not open space land. She stated it just doesn’t meet the definition of open space land. Kerr stated he felt the open space in the Eklund Subdivision was a great piece to have contiguous because there is a kayak dock and access with the state and a nice park could be made in the area with picnic benches to overlook the water.
Johnson expressed concern about having the resources to maintain and clear the area for that use. Thompson stated when the commission looks at a potential development they evaluate each project individually. He also expressed concern for people that purchase property adjacent to large wooded areas thinking that nothing can be built which is true but eventually walking trails are installed and those property owners are then dealing with people continually walking along their property invading their privacy. Johnson stated she did not feel all the land has to be accessible to trails. She stated there are other reasons to protect land that has trees on it and provides a great natural resource.
The commission reviewed the proposed changes to the Open Space Regulation. Johnson stated the first change is the definition in which she would like to eliminate the word “water”.
Ross stated for the record he was opposed to this change.
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Johnson stated the next thing is where it states the purpose of open space she would like it to state “set aside for conservation park or playground purposes” to eliminate that literal reading.
Johnson stated that the water existed in the definition but did not exist in the regulation and she would like the two to be consistent.
Johnson stated in the next section she would like it to have a minimum reservation of 15% and felt there was no reason to accept anything less. She further discussed the recent subdivision of the Marsh Property which the developer provided approximately 12% of open space. McCarthy stated that was based on the area the was being developed and a large portion of that property was being left in its current state and if and when that was ever developed they would be subject to further open space.
Thompson stated there are times when a subdivision comes before the commission and 15% doesn’t mean anything such as in a small two or three lot subdivision. Johnson stated it states a minimum of one acre. Thompson stated there are still areas that are zoned one acre or less to require one acre on a two lot subdivision would be excessive. Cassella stated the commission would still have the authority to waive the 15% by a three quarter vote.
Cassella stated it reads currently “in determining the need for reservation of open space the commission shall be guided by but not limited to a standard of 15%”. Ross stated he felt the current wording was fine as it stands. Johnson stated she was proposing that it be a minimum of 15%. Thompson stated he had a tough time with that because there have been numerous cases where the commission accepted a fee in lieu of because they were unable to get 15% and/or in the best interest of the town or the applicant. Ross stated it was taking away the little bit of latitude that the commission has currently. He felt the language should remain as is because he felt the changes were imposing excessive restrictions and too much local government intervention.
Cassella stated that the Planning Commission has the right under the statute to determine the land to be dedicated for open space. You are subject to a standard of reasonableness and rationality and related to the items outlined in the Plan of Conservation and Development. Cassella stated the commission does have discretion to maneuver where the land is going to be and what land it is going to be. Cassella stated one of the questions he has is there a thought in the commission’s mind as to how much wetlands versus how much upland (useable land) or is the commission more comfortable evaluating each application on a case by case determination.
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Chris Kerr stated he felt it was best to be done on a case by case basis because every property is unique. Johnson stated her concern is that the commission accepts what the developer is proposing. She also noted her goal is to work with the developer in the early stages prior to their submittal of the application. She also expressed concern that in a lot of cases the developer tries to give throw away land and the Planning Commission doesn’t seem to care. Thompson stated that is not true. Ross stated the land itself usually involves watercourses and wetlands, ponds and areas that are being called throw away land. Johnson stated it is okay to have some of the land be that but not all of it because the human interest is an important factor. So a portion of the land should be
useable.
Robert McCarthy stated that a lot of the subdivisions have been presented including the entire 15%. He stated there is a lot of land out there that is unusable for development so we do end up with that being true in some cases but expressed concern over making the criteria to rigid which could result in eliminating other opportunities. McCarthy stated the percentage is not unreasonable but to say it has to all be upland is too much. McCarthy stated a developer might be willing to give more land but if a percentage has to be useable that might be a deterrent and therefore they would not be willing to give the larger percent McCarthy stated he did not feel the revision was necessary and felt giving the Planning Commission the latitude was beneficial.
Thompson stated that the quality of land left to be developed in Old Lyme has become challenging and therefore the commission has tried to be flexible and blend all the requirements together and still comply with the regulations. Thompson stated part of the concern that is being expressed by the Open Space Committee is that the Planning Commission is going to change and not everyone’s going to have the same feelings about monitoring the open space and working with the other commissions and doing what needs to be done to maintain some continuance of open space based on the way the Town of Old Lyme has been developed over the years. Therefore the committee is looking to guarantee that moving forward there are minimum requirements that are pretty solid. Thompson stated he still felt the commission
needed some flexibility because of the quality of land that is being developed. Thompson further stated at this point he felt the commission had the ability to effectively monitor open space.
Cassella suggested not making a minimum requirement or a requirement at all that would require a waiver but to change the “shall be guided by” language. He stated most people come in with 15% even though that is not a hard and fast rule it is rare when someone doesn’t come in with 15%. Thompson stated he did not have a problem with the “shall be guided by”. Cassella stated you could extend the shall be guided by to say “and 71/2 percent or a significant portion or 50% or” whatever the commission feels is necessary to use “shall be useable open space, etc” because then it is in developers face and they realize the need some upland to meet the open space requirement. Thompson stated he if
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we require a minimum of 71/2 percent of upland then we are saying whatever else we get is a bonus on top of that. Cassella stated the “shall be guided by” it is advisory not mandatory. Cassella stated it is very clear that the commission likes to make the determination on a case by case basis but the practical impact is that when developers read the statement of 15% they then draw around the edges and create their lots and submit the application. He stated it could be taken a step further with the statement “it shall be guided by” with some sort of restriction on the amount of the 15% that needs to be useable or non-wetlands.
Johnson stated we could put in a guideline that at least 50% of the open space land be useable. Thompson stated he would be fine that. Johnson stated it would encourage an approach. She further stated having some portion of the open space land be useable land is attractive to the development. Therefore she would encourage that some of it be useable. Thompson agreed but still felt it was beneficial for the commission to have some flexibility. Johnson stated this would encourage people to think more about what they are providing in a totality instead of just putting the wetlands in as open space which is what happens currently.
Ross stated he felt that each of the commission members has expressed the feeling that the Planning Commission should retain some judgment over how these issues are considered and he totally agrees with that. He stated that Johnson made a good point about encouraging and what he would propose since he so vehemently objects to the additional restrictions is that wording be put in that states “encourage” but his feeling is that if you take away the walking trails and use by humans of open space and the open space serves the purposes listed here. He stated if you take the word “useable” out of here it’s not going to impact protection of wetlands and natural resources and scenic quality. He said he felt the hang up was trying to set aside space in every instance or have these
regulations set aside space in every instance for people to trek through the woods. He stated he lives in a subdivision of over 30 homes and there is no open space in that development. He stated the only open space is the land that was given to the Old Lyme Conservation Trust which is 100% marsh and creek. He stated he has never heard one person say anything about not having open space to walk on because people walk on the streets and down to the beach. He further stated that this town has a fair amount of open trails in town along with beach areas so any restrictions to provide for walking trails is excessive. Johnson stated she did not say walking trails she said useable open space. Ross stated he did not feel the taking of land at a rate of 15% needs to also demand that 50% of that open space be “useable”. Johnson stated she resented the term “taking”. Johnson stated it was not taking the land. Ross
stated he was not arguing about the reservation of 15% but he felt the character of each subdivision differs enough so that the commission should have the ability to use its judgment. He further stated he objected to deleting “water” in the definition.
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Johnson stated the Open Space Committee feels that the Planning Commission views “open space” as a taking and that it doesn’t have a benefit. Thompson stated he would like to think that the commission is much more sensitive about open space than people think they are. Thompson stated he felt some changes could be made in the wording that might enhance it a little bit, but he felt cause of the diversity of the property he felt having some latitude was important and also the ability to provide some reasonableness.
The commission commended Johnson on all her hard work on the Open Space Committee.
Ross suggested a compromise that the word “encourage” be added to the language. Johnson stated that many of the open space regulations in the state have a lead in paragraph which states that this is an important thing to the town. Therefore she felt it was important to make that positive statement which expresses what the town desires.
Cassella said the commission can make the discretion that you don’t mind the wetlands and the slopes but you don’t want a storm detention system and/or level spreader in the open space. Cassella said then a policy is set in the regulations that the commission wants as much useable land as possible.
Cassella said there are additional changes also in the language requiring markers every 100 ft, the change in perpetual easement to conservation easement so he asked if the commission would be continuing this discussion next week. Thompson stated it was on the agenda for the regular meeting next week.
Robert McCarthy stated the problem he sees with the language that states “the minimum reservation area of open space shall be for any subdivision shall be one acre” the problem is if you have a little subdivision does that then require them to have one acre open space. Cassella stated the language states “shall be guided by”. McCarthy stated he felt the word “any” doesn’t work there. Cassella stated the first sentence in Section 5.10.1 the first sentence would probably stay the same.
Cassella agreed to revise the proposed language and submit it back to the commission for their review at the next meeting.
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