Conservancy groups push zoning change

Thu, 01/16/2020 - 7:15pm
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Three months ago, the New Shoreham Planning Board agreed to extend its public hearing on changing the subdivision regulations concerning the definition of developable land. The extension came at the request of the three conservancy organizations actively working on Block Island — the Block Island Land Trust, the Block Island Conservancy, and The Nature Conservancy.

The issue is whether or not conservation easements should be used in the calculation of a property owner’s developable land. A change to the zoning ordinances last year struck the exclusion of land protected by conservation easements from the definition, and the Planning Board was seeking to align the subdivision regulations with the zoning ordinance.

At the continuation of the public hearing on Jan. 8, granted so that the conservancy organizations could tabulate the number of easements that might potentially be affected under the rule change — i.e. those easements that did not specifically preclude development rights — Land Trust attorney Joe Priestley said that the rule change could potentially result in 50 new houses being built on land that would previously not have been available to be developed.

As at the Planning Board hearing in October, Chair Margie Comings opened the hearing with the announcement that the board had received approximately 60 emails or letters in support of the conservancies’ position that areas under conservation easement should not be included in the calculation of developable land. It was noted that both items of correspondence read included the phrase: unless the easement language allows it.

Although the Planning Board was considering changes to the subdivision regulations, going back and re-amending the changed zoning ordinance was always a possibility, and that is exactly what Priestley proposed.

In a letter to the Town Council dated Dec. 30, the three conservancy organizations stated: “We propose that land subject to Conservation Easements be excluded from the developable land calculation unless the Grantor specifically reserves the development rights.” The letter also states that those who have donated easements, or sold them at below-market prices, had received something of value, specifically “state and federal tax deductions.”

Dorrie Napoleone, “wearing her hat” as president of the B.I. Conservancy, said that the BIC was founded in 1972 to protect Rodman’s Hollow, and that it was the first land trust in the state of Rhode Island. She spoke of the responsibility to donors, to protect their investment, and to “keep a promise of 48 years.”

In 1989, when the zoning ordinance was originally written, it did include conservation easements in the calculation of developable land, and at some point, the ordinance was changed to disallow easements in the calculation.

Town Councilor Martha Ball said she would like to know the origination of the change. She also added that she and her brother “sold what we thought was the development rights.” The reason for the sale, she said, was to pay inheritance taxes. She thought the deed should “prevail regardless of what happens in zoning.”

Resident Doug Michel, who has served on several town boards in the past said that when the ordinance was enacted in 1989, “the island was kind of desperate.” Property values were low, he said, and developers were snapping up prime parcels. The initial ordinance was “used as a tool for land conservation.”

Resident David Lewis asked if the parties to a conservation easement were allowed to go back and change the language if they agreed to do so.

Planning Board attorney Bill Landry said: “Good questions are being asked.” As for the rewriting of agreements, he said: “Anybody can change an agreement, but people can’t change it for them.”

Landry reminded those present that there was a “discrepancy” between the zoning ordinance and the subdivision regulations, and that although the matter of the subdivision regulations was on the table, either or both could be changed “to make them match.” “It’s a question of trying to get everyone on the same page.”

“I think one of the reasons we’re hoping to make the language clearer,” said Napoleone, “has to do with land transfers to new owners. “That’s our concern.”

“As land gets scarcer, people look harder,” said Priestley, referring to the possibility that while an original donor of an easement may have been perfectly happy to give up their development rights without it being explicitly stated, a subsequent owner could challenge that.

Resident Keith Lewis, who earlier said he has been “doing land transfers with [The Nature Conservancy] since 1984,” and spoke highly of The Nature Conservancy, spoke of the conflict of receiving a charitable income tax deduction for putting land under conservation, which extinguishes all development rights, when that right is essentially restored under the ordinance change. “I wouldn’t want to go to the IRS and explain that,” he said.

“Don’t worry, they’ll come to you,” said someone, to laughter.

After more discussion, Michel suggested that the conservancy organizations put together a “white paper” that could “clear up a lot of the debate.”

As the conservancies’ proposed amendment to the zoning ordinance was not received by the Planning Board in time to be put on the agenda for the meeting, Comings recommended continuing the hearing for another month so that the proposal could be considered. That meeting is scheduled for Feb. 12 at 4 p.m.