Planning Board approves new zoning language

On conservation easements
Fri, 02/14/2020 - 2:30pm
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Acting on the recommendations of the town’s three leading conservation groups, and after receiving more than 50 emails and other forms of communication, the majority of which were in favor, the Planning Board approved zoning amendment language changes that will exclude conservation easements from a land parcel’s developable land calculation, with the stipulation that the grantor of the land can specifically reserve those developable rights if he or she so chooses.

This language change will now be forwarded to the Town Council.

Members of the Planning Board, and some attorneys present, recognized that issues regarding conservation easements and developable rights may have been messy in the past, but these amendments were meant to clarify the issue and minimize litigation moving forward, although at least one member of the Planning Board, Tony Pappas, quipped that perhaps litigation was inevitable anyway.

At the outset of the Planning Board meeting, which took place on Wednesday, Feb. 12, it was Pappas who started out by questioning a white paper issued by The Land Trust, the Block Island Conservancy, and The Nature Conservancy, which advocated for adopting the amendment that would exclude conservation easements from the developable land calculation.

In the white paper, it was stated that, after an analysis of all the existing easements that could not, for one reason or another, be developed, the conservation groups believed there were still “the potential for at least 50 houses, which would be sited in areas that are considered important viewsheds or of ecological importance.”

Pappas said he had sympathy for the conservations group’s position, at first, “but I have less sympathy after I received this.” Pappas asked what criteria was used to arrive at the figure of 50 new homes, and how they determined what lands could be described as “important viewsheds or ecological importance.” He said that it wasn’t out of the question that “all land on Block Island is either a viewshed or of ecological importance.”

Barbara MacMullan of the Land Trust said that groups wanted to “be conservative in our analysis” and she said the groups made sure “to exclude easements where the language already prohibits development, or is too small, or there is no adjacent lot to transfer those rights to. Those were excluded.” MacMullan said the groups found “27 easements where the language does not exclude development.” Out of that number, she said, “18 could be developed if that language is not changed.”

Overall, MacMullan said, “we have attempted to be respectful of the rights of those people who have sold or donated those easements.” She said, “the inherent premise of a conservation easement is that the landowner has the sold the development rights in the property.” She stated, “land under conservation easement should not be used for development unless specifically reserved as a right.”

Pappas said he was still concerned about legal issues around the easements and the applicability of development rights.

The Planning Board’s attorney, Bill Landry, said that the board “has a pretty broad base of authority as to how you define developable land.” He said the board shoud be concerned with shaping the language of the ordinance, not with how a court may decide on any kind of challenge.

“Having a zoning ordinance that is clear is what we’re pushing for,” said Dorrie Napoleone, president of the Block Island Conservancy. “The more ambiguous it is, the more it will end up in court.”

“I’m not sure you’ll stay out of court,” said Pappas.

Landry said the board “has to come up with an objective standard as to how conservation easements will be dealt with, whether they are in or whether they are out. Government has a pretty big room as to how they determine these provisions.”

The board and members of the audience agreed the focus should be on the future.

Chair Margie Comings asked the audience if they had any more questions. “Going once, going twice!”

With no one responding, she then asked the board for its opinions, by stating to the conservation groups’ representatives in the audience, “I am perfectly comfortable with the language you have submitted for the subdivision regulations.”

“I feel this is the way to go moving forward,” said member Sam Bird.

“I’m happily encouraged,” said member Socha Cohen.

The Board recommended to the Town Council that the language proposed by the conservation organizations be adopted in the zoning regulations. The language is as follows: “Developable Land for the purpose of calculating the maximum permitted development density for a parcel, is the total gross land area of a parcel proposed for a development less the total of the following: All Land area of land subject to a Conservation Easement unless the easement specifically reserves the right to include the land subject to the Conservation Easement in the calculation of development density.”

Split decision on Lark Hotel proposal

Even after many weeks and months of testimony, of presenting plans, of presenting revised plans, and endless questions by the members of the Planning Board, it was still not enough to convince a majority of the Planning Board that building six new accessory rooms at the site of the former Gables Inn was a good idea.

At the end of the day, it was a 3-3 vote on the matter, which means that the proposal to build these accessory rooms by the Lark Hotel group will be forwarded to the Town Council with no formal recommendation by the Planning Board.

What the group did agree on was that no more than six rooms could be built into a new structure on the property, which is located on Dodge Street, but even the definition of what a “room” was came up for some debate.

Before the vote, the primary concern among members was the concern that allowing this new, accessory use in the Historic Districy would have unintended consequences.

Attorney Joe Priestly, representing the hotel, said that if the zoning amendments as proposed were to go through, they would impact no more than three other lots in the Historic District. He added that more hotel rooms in the Historic District would be good for the community by expanding hotel room availability in the shoulder seasons. He also said that according to current zoning regulations, a 40,000 square foot parcel in the Historic District allows a 10,000 square foot hotel, while a retail shop could be as large as 20,000 square feet.

Priestly added that the Planning Board should want to encourage buildout in the Historic District because “it’s so much denser.” He said the board did “not want to encourage density” in other zones.

“The more I think about it, the more concerned I am about unintended consequences,” said Grele.

Pappas said that perhaps the Historic District could use a little sprucing up.

The vote, in the end, was 3-3, with Cohen, Grele, and Bird voting against, and Comings, Pappas, and Mary Anderson voting in favor.

Attorney Landry said all that meant was that the decision “will arrive at the Town Council that the board was indecisive.”

“We were decisive,” said Pappas. “Only in two different directions.”