Conservation groups wrestle with subdivision regulations

Prior to Planning Board public hearing
Fri, 09/27/2019 - 8:00am
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Proposed changes by the Planning Board to the definition of developable land has caused the three major conservation groups on Block Island to have something akin to an existential crisis. Those three groups are the Block Island Land Trust, the Block Island Conservancy, and The Nature Conservancy. Representatives from all three groups were in attendance at a special meeting of the Land Trust held on Sept. 24.

The meeting was held to formulate a response before a public hearing (scheduled for Oct. 15) on changes to the Planning Board’s subdivision regulations. The regulations currently exclude the square footage held in a conservation easement from being used to calculate how much of a property can be developed.

The problem is that the Planning Board regulation is now inconsistent with the Zoning Ordinances, which were changed by the Town Council in January 2019. Under the zoning ordinances, conservation easements may be included in the calculation of developable land. Under the Planning Board’s subdivision regulations, they cannot.

The matter of inconsistency has come to a head with the filing of a lawsuit in Superior Court against the members of the Planning Board by an island family that wishes to subdivide their property. As a result, the Planning Board is seeking to bring its regulations in line with the Zoning Ordinances by now including areas held in conservation easements within the calculation of developable land.

It was noted however that instead of the Planning Board changing its regulations, the Town Council could change the Zoning Ordinance back to where it was.

BIC President Dorrie Napoleone asked: “Where does the lawsuit stand?”

Land Trust attorney Joe Priestley said: “Not in a situation that the Planning Board is required to act in October.” He explained that because of the discovery process involved in a suit, any decision by the court was a long way off.

Priestley also said that explicit language in conservation easements could still exclude the land area from being included in the calculation, but “we don’t know how many easements are out there” that don’t have that language.

“We’re talking about a couple hundred easements,” said Scott Comings, Associate State Director of The Nature Conservancy.

“I think less than half our easements have restrictive language,” said Napoleone.

Priestley said that the easements were binding on the original owners, or grantors of the easement, but the “second generation owners” of a property may seek relief through litigation.

Land Trust member Keith Lang said the matter wasn’t only important for the Land Trust but for “everybody. Everybody needs to know because they could all be impacted.” Those impacts could come from changing viewsheds, IRS deductions, property assessments and property taxes as a result of those changing assessments.

(Later in the meeting, Priestley said that assessors would “look at properties very differently,” and that a “small group of property owners could be facing a sharp increase in property taxes.”)

“You pay nothing on a conservation easement,” said Comings. “Also, how does this impact the Comprehensive Plan? It gunshots the Comprehensive Plan.”

The Comprehensive Plan includes a stated goal of conserving 50 percent of the island. Currently land held for conservation is approaching 47 percent.

“The 47 percent has always been going up, but now it could go down,” said Lang.

“The uncertainty is enough to warrant a delay,” said Land Trust Chair Barbara MacMullan.

“No one has done the analysis,” said Priestley, who said each organization would need to inventory its easements to see, at least, which ones had restrictive language, and which ones did not. He suggested writing a letter to the Planning Board requesting a three-month delay in holding its public hearing.

“Should the letter come from all of us?” asked Comings. “I’d like to think we’re all on the same page.”

Despite that, Comings also said that when it came to discussing the litigation against the Planning Board brought by the Phelans, that he and Chris Littlefield, also of The Nature Conservancy, “would have to recuse because we have conflicts” with the Planning Board.

“It’s a bigger point than the litigation,” said MacMullan. “It’s a public policy issue.”

Priestley said he would like to finalize the letter to the Planning Board by the end of the week, and in addition to asking for a three-month delay on the public hearing “we would want to petition the town to change the Zoning Ordinance, not the subdivision regulations.”

MacMullan and Lang were authorized to review the final letter before it’s sent to the Planning Board, which has a meeting on October 9, before the Public Hearing to be held on the 15nth.

“An ordinance that says you can’t use it would solve the problem,” said Priestley.