Proposed conservation easement change tabled for three months for more study

Thu, 10/17/2019 - 6:15pm
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The main meeting room at Town Hall was overflowing for the Planning Board’s Public Hearing on the proposed changes to the definition of developable land. The issue is whether or not conservation and open space easements should be considered in the calculation of developable land within the subdivision regulations. The Planning Board voted unanimously at the Tuesday, Oct. 15 meeting to continue the hearing until January 8, 2020 so that the issue could be studied further.

The afternoon meeting began with several disclosures. Chair Margie Comings said “For the record, my son (Scott Comings) works for The Nature Conservancy.” She also said that there was an easement on her own property that was for “development rights.”

Board Member Sam Bird also disclosed that there was an easement on his land for development rights, while member Christine Grele disclosed that her partner, Chris Littlefield, works for The Nature Conservancy.

Board member Denny Heinz, who also is a member of the Block Island Land Trust, recused himself.

Neither Scott Comings nor Littlefield were present for the meeting.

Next, Town Planner Alison Ring provided a framework for the discussion. Based on state changes to development regulations, the town needed to make amendments to its own regulations. The specific change in state regulations was that areas defined as wetlands buffers could be counted towards developable land. However, when the Town Council amended its zoning ordinances last January to reflect that change, they also added that areas subject to existing conservation and open space easements could also be included in the equation for calculating developable land.

This change caused a conflict between the Zoning Ordinances and the subdivision regulations, which were not amended, and which the Planning Board has jurisdiction over. At first the conflict was not seen as a problem, but with a change in attorneys advising the Planning Board, and the filing of a lawsuit challenging the inconsistency, the “Planning Board has been told the (language) should be consistent,” said Ring.

Before opening the floor to comments, Comings said the Planning Board had received many emails in the past few days, and while she couldn’t read them all into the record, she did read off the names of those who had sent them. She noted that one request was to delay any decision, and that one had stated that the proposed change “undoes all the good things The Nature Conservancy, the Block Island Conservancy, and the Block Island Land Trust do.”

Comings said there was a total of 72 emails. “Very impressive. In all my years on the Planning Board,” she said, we’ve “never received a response like this.”

When the floor was opened up for comments, Joe Priestley, acting in his capacity as attorney for the Land Trust, said he had sent a letter requesting “holding the matter open for three months.” He stressed that the conservation organizations had acquired easements “based on the explicit assumption that conserved areas would not be included in developable land,” and that those acquired before the mid-1990s could be affected. The purpose in asking for the three-month delay was so the organizations could perform an inventory of the properties held in easement.

There were some questions as to exactly how many easements were out there, a question that couldn’t be answered exactly.

When resident Pam Hinthorn rose to speak, she said: “Full disclosure. I don’t fully understand the issue,” but she wanted to support the delay.

Resident Keith Lewis said he supported the three conservation organizations and would defer to them.

“Conservation easements have been one of our most important tools,” said Hans Birle, Associate General Counsel of The Nature Conservancy. “We alone should be able to determine how” property can be used, as owners of the easements. He too asked the Planning Board for a delay and expressed that conservation easements should not be included in the definition of developable land.

Support for the delay was echoed by many in the room. Resident Jim Hinthorn said he “didn’t see any downside. Anything that allows density to increase is not in our best interest.”

Town Council members Sven Risom and Martha Ball were also in support of a delay. Risom said, “We don’t know how much work” it will take to study the matter, “but we know it’s a lot.” He suggested that the delay should perhaps be four months instead of three. “Time is not the essence. Getting it right is the essence.”

When Michelle Phelan, who, along with her husband Blake, had filed the lawsuit challenging the inconsistency of the language between the zoning ordinances and the subdivision regulations rose to speak, she said “I have some questions.” The first was whether any of the Planning Board members felt they had a conflict of interest. In response, Comings, Bird and Grele all said “no.”

After a couple more questions, including whether taxpayer money should be spent on litigation, Phelan told the Planning Board members that when they had joined the Planning Board, they had been sworn in to uphold both the town ordinances and the state laws. “You have not been in compliance with state law since January.”

After a few more comments, Comings, who hinted she would do so at the beginning of the hearing, suggested continuing the hearing until January.

“If in three months we come back,” said resident Jim McCormick, “and we stay in conflict with the Town Council, where do we go from there?”

“The Town Council could change, or not,” said Comings. She noted that the Council had the final authority on the matter. “The Town Council is higher than the Planning Board.”