Proposed State Zoning Bill is Bad for Wetlands

I don’t spend a lot of time tracking the activities of the Rhode Island General Assembly, but I was recently apprised of a bill floating through the House and Senate that could affect multi-structure development near conservation areas and use of conservation land.  This bill troubles me, and I wanted to share with you what it is proposed.

The bill, H5554, is entitled AN ACT RELATING TO TOWNS AND CITIES - ZONING ORDINANCES.  This bill proposes to add several definitions to the general laws regarding zoning ordinances and also addresses land planning and open space.   As dry and mind-numbing as it might be, I’m going to repeat or paraphrase the proposed changes below (presented in italics with introductory language sometimes included for context) and discuss why I’m concerned.    

The bill adds to the definition of the General Purposes of Zoning Ordinances [Section 45-24-30 (3)] as “[p]roviding for orderly growth and development which recognizes (viii) the desirability of developing land efficiently to preserve contiguous open space and discourage rural, suburban and urban sprawl by providing for clusters, conservation development, and/or smaller lot sizes.”  

That sounds good, no?  That was my first read.

Buildable land is defined as “[a]ny land except those areas designated as floodplains, wetland, coast, wetland freshwater or steep slope or utility easements with above ground improvements.”  

Hmm.  At this point, I became a little concerned that the wetland setbacks were not included in the exceptions.  The Town of Barrington zoning regulations prohibit building within 100 feet of a wetland edge in order to provide a safe “buffer” for the wetlands, protecting them from the effects of construction and subsequent land use.  This language suggests that building in the wetland setback would be permitted.  Not a good thing.

Although not in this order, the bill also defines a “Yield Plan.”   Suffice it to say that a yield plan is a plan, or site drawing, that identifies the number of houses that would fit in a conventional development if all the zoning code and land development requirements were met.  The yield plan is used to identify the number of houses that would be allowed in a cluster or conservation development, defined next.

 “Conservation Development” is defined as “[a] method of land development design in which the natural resources and character-defining features of the site are identified first, and lot lines, building envelopes, and open space are located in a way that preserves and protects those feature through flexibility in the size and dimensions of the lot.”  This means that  bigger houses would be allowed than normally allowed for the lot size, and that the buildings can be placed closer together and closer to the front, side, and backyard property lines than normally allowed.   The goal of this kind of development is to “cluster” all the houses in one part of the development and set aside large portions of contiguous open space that would not be developed.   In and of itself, this is fine. 

The proposed amended definition of “Lot Area” ties these somewhat innocuous definitions into what I suspect is the main thrust of the regulation.  The amendment reads ”In determining the lots in a subdivision of the yield plan for a land development project, a zoning ordinance may not exclude areas that are coastal or freshwater wetlands, steep slope or subsurface utility easements, but may require sufficient amount of buildable land as follows”, with further definition with which I won’t bore you. 

This means that the yield plan will calculate the number of houses that could fit on the land, including as if they could be built in wetlands, on steep slopes, and in utility easements (which, of course, they can’t).  This inflated conceptual number of houses is then squeezed into the allowable buildable portion of the conservation development, resulting in more houses than would be allowed under the current regulations. 

This proposal is, in my jaded opinion, just a tricky way for a developer to cram more houses into an already tight development.

The proposed bill also adds a caveat at the end of the “Special provisions - Land development project” section [Section 45-24-47 (d)(a)(1)], which directly affects the use of conservation land.  The proposed bill states that if a zoning ordinance requires providing open land for public or common use (as a conservation development does), “… municipal regulations shall allow for drainage areas, private wells, community wells and private and community on-site wastewater treatment systems that service the land development project to be designed and integrated into the open space.”  

This means that land intended to protect water quality or serve as public open space would be allowed to receive building and road runoff (which often contains oil, VOCs, and metals),  drinking water wells (not likely in Barrington, but you never know), or septic systems  (possible in the Four Town Farm/Nockum Hill area of Barrington, which isn’t sewered). 

This is antithetical to the purpose of open space and conservation land, which should be protected and remain undeveloped.  This proposal only serves the interests of developers and could be immediately or ultimately destructive to wetlands and open spaces.  This bill should not be passed.

The proposed bill was heard by the House Municipal Government Committee on June 8, 2011, and the committee recommended that it be held for further study, although no record of the vote is presented on the State of Rhode Island General Assembly website.  A substitute bill (2011-H 5554 Substitute A) is also circulating, that proposes to amend the General Laws 45-23, “Subdivision of Land” to also not exclude wetlands, floodplains, slopes other than steep slopes and other areas with constraints to development from yield plans.

A similar bill, S0533 was introduced into the Senate on March 10, 2011, and was heard by the Housing and Municipal Government Committee on May 10, 2011, but no record of a vote was contained on the State of Rhode Island General Assembly website.  I’m not versed enough in General Assembly protocol to know how this relates to the House Bill, but I suspect the bill flowed from the Senate subcommittee to the House subcommittee (but I pulled that from thin air).

If you also feel strongly that this bill should not be passed, please let your representatives know.  And if you agree with the proposed bill, forget I said anything.