Zoning Board Denies Special Exception on Wetland Setback

After extensive debate, including an individual poll on each of the eight conditions for a special exception to a wetland setback, the Zoning Board of Adjustment (ZBA) rejected a developer’s request to build a multi-family townhouse within the Prime Wetland setback.

The decision involved a joint meeting of the Zoning Board, Conservation Commission and Planning Board and was held as part of the Aug. 15 ZBA meeting. Each board gave input on the request for a special exception, after which the ZBA took its votes.

Developer Stephen Vadney is seeking to build nine townhouses on land currently owned by David and Patricia Ferland. Vadney and his surveyor, Kevin Hatch of Chester, contend that placing six of the units within the buffer for the wetland setback is essential so that Vadney can also build a cul-de-sac for town vehicles to turn around. The special exception would reduce the setback to 75 feet.

The property in question is at 8 Ferland Drive and is Parcel ID 31017-001, and is zoned MHDR (Medium High Density Residential). Hatch argued that the cul-de-sac was needed for safety reasons, as previously reported in the Nutfield News. He said the design and construction would have “minimum impact” on the wetland and said Vadney would re-plant any disturbed vegetation. He said the area, a former sandpit, provided a natural filter for stormwater runoff.

Hatch said the special exception was not requested solely for Vadney’s economic advantage. “We need that cul-de-sac,” he said. He added that the proposed usage could not be carried out on the part of the lot outside the buffer zone, noting, “With 3.57 acres, there is not enough room.”

The units would be placed as far from the wetland as possible, Hatch said. He also pointed to other properties in the area, which he said had less buffer between them and the wetland. The lawn will not drain into Shields Brook, he said, and the driveways will be well away from the brook.

Planning Board member John O’Connor asked, “Is a cul-de-sac required, or will a T-turnaround do?”
Hatch said a “T” or hammerhead turnaround would not be sufficient for fire and rescue personnel, or snowplows. He said he did “shrink” the size of the cul-de-sac by town request. But he added, “The town is already using that area to turn around.

“The last thing a fire or ambulance driver wants,” Hatch said, “is to have to turn around and back up. You also have to make sure the snowplow got it all out of the way.”
Conservation Chairman Margaret Ives dealt with the question in her Aug. 12 meeting, and followed up with a site walk Aug. 13.
“This area is of concern to us,” Ives told the other two boards and the applicants. “The proposal to put buildings 75 feet within the prime wetland buffer is driven by the plan to put in six more units. If they modify their plan, it will not affect the buffer.”
Ives added, “This area is in a floodplain. It has seen substantial flooding that necessitates the closing of the road.”
Albert Dimmock, Town Council representative to the Planning Board, agreed with Ives. “It is too close to the wetlands,” Dimmock said. He lives in the area, he said, and had to take detours to his home several times due to flooding.

“I think they should hold it at the 150-foot buffer,” Dimmock said. Though Hatch pointed to other development, including some that come right to the edge of the buffer, Ives was unconvinced. “I think current development in this area is a reason to be all the more cautious,” she said. “A ‘prime’ designation needs to be respected.”

Ives said she didn’t think building in the buffer zone was essential to the development of the land. She listed the reasons for having a buffer, including wetland juxtaposition, fauna and flora including Jack in the Pulpit, groundwater potential, the food chain, and “aesthetic, historical and educational value.

“We are coming from a position of ‘no,’” Ives concluded. “The conditions for a special exception are not being met.” Hatch said he understood the importance of the wetland and the reason for the ordinance. “But when it was adopted in 1988, it was approved on the provision that people would be able to come to this board to get exceptions,” he said.

Hatch added, “Rain will fall on that land whether our buildings are there or not.” Planning Board member Randall Chase said that putting six buildings in the buffer is a clear example of “economic gain.” Three buildings should be enough, Chase said.

It was a difficult decision to make, ZBA Chairman Allan Virr observed, adding, “We as the Zoning Board are charged with looking for ways people can fully utilize their property.” Virr called for his board to take individual votes on each of the eight conditions for a special exception within the Prime Wetland setback.

The eight conditions are 1, granting the special exception is necessary for productive use of the land; 2, the design and construction will have minimal impact; 3, the special exception is not sought for economic advantage alone; 4, the proposed use cannot be carried out on a part of the lot outside the buffer zone; 5, usage is consistent with the purpose of the zoning article; 6, it will not create a hazard to individual or public health; 7, it will not disturb additional area; and 8, no landlocked land or unbuildable lots will be created.

Virr said all eight conditions would have to be met. But several of his members voted no on various points of the criteria. “The ordinance says, ‘Provided that all the following conditions are met,’ and we had four no’s just on the first condition. That carries the day for me,” Virr said. In the official vote, the five members voted unanimously not to grant the special exception.