The intent of Northampton's new Wetlands Ordinance has been a matter of controversy at the hearings of Kohl Construction's condo proposal for the North Street neighborhood. The current proposal calls for a large amount of disturbance, construction and paved surface within the 100-foot buffer zone around a wetland, right up to the 35-foot line.

To continue our close look at the intent of the ordinance, here is a complete blip.tv video of the 10/4/07 meeting of Northampton's City Council. It includes the second reading and 7-2 vote to approve the ordinance. (Here's a video of the first reading which took place on 9/20/07.)

This video is courtesy of Northampton Community Television. It is 3 hours and 17 minutes long. A DVD of the recording can be borrowed from Forbes Library.



Here are the highlights of the video with respect to the Wetlands Ordinance:

0:0:00-0:42:30... Public comment period. Includes comments about the Wetlands Ordinance.

1:24-25-2:55:26... City Council takes second reading of Wetlands Ordinance, approves it with a vote of 7-2 (Councilors Jim Dostal and Ray LaBarge dissenting). Two proposed amendments fail. The discussion includes arguments in support of the ordinance made by Land Use and Conservation Planner Bruce Young.


Here is the complete agenda of the meeting:

CITY COUNCIL MEETING
OCTOBER 4, 2007
CITY COUNCIL CHAMBERS
WALLACE J. PUCHALSKI MUNICIPAL BUILDING
212 MAIN STREET, NORTHAMPTON

…………………………….
Public Comment -7:15 P.M.

Finance Meeting - 7:20 P.M

Regular Meeting - 7:30 P.M.


REGULAR MEETING AGENDA

• ROLL CALL

• APPROVAL of MINUTES – September 20, 2007

• POLICE DEPARTMENT PROMOTIONS

• PROCLAMTION – Polish Heritage Month October 2007

• PROCLAMATION – World Sight Day October 11, 2007

• COMMITTEE REPORTS – Transportation & Parking Commission Report of August 21, 2007

• ORDERS – Special Legislation for an Act Relative to the Investment of Trust Funds for the City of Northampton

- Warrant and Polling Locations for the November 6, 2007 Election
(Passed 1st Reading 9/20/07)
• ORDINANCES – Amend 312-112 One Way Streets, Meadow Street
(To be referred to Transportation & Parking Commission and Ordinance Committee)

Ordinances continued…

- Amend 312-114 A Bus Stop Be Established On Maple Street
(To be referred to Ordinance Committee)

- Amend 312-102 A No Parking Zone On Maple Street Be Deleted
(To be referred to Ordinance Committee)

- Amend 312-114 Delete a Bus Stop on Maple Street
(To be referred to Ordinance Committee)

- Amend 312-114 A Bus Stop to be Established on Pleasant Street
(To be referred to Ordinance Committee)

- Amend 312-109 On Street Parking Meter Zones – Delete Strong Avenue
(To be referred to Ordinance Committee)

- Amend 312-109 On Street Parking Meter Zones – Strong Avenue Westerly
(To be referred to Ordinance Committee)

- Amend 312-109 On Street Parking Meter Zones – Strong Avenue Easterly
(To be referred to Ordinance Committee)

- Amend 312-109 On Street Parking Meter Zones –Strong Easterly
(To be referred to Ordinance Committee)

- Amend 22-129 Community Preservation Committee, Membership; terms
(To be referred to Ordinance Committee or suspend Rule 31 to take a 1st Reading)

- Amend Chapter 337 Wetland Ordinance to improve clarity, public notice and protection of vernal pool, codify and existing policies into the Ordinance and increase non-criminal disposition for repeat offenders (Passed 1st Reading as amended 9/20/07)

- Ordinance – Amend 40-4 For Non Criminal Disposition: Enforcing Officer; Penalties
(Passed 1st Reading 9/20/07)

- Amend Ordinance Section 312-120, Neighborhood Parking Districts Kensington Avenue
(Passed 1st Reading 9/20/07)

- Amend Ordinance Section 312-36, Parking Classes
(Passed 1st Reading 9/20/07)

- Amend Ordinance Section 312-103, No Parking Certain Times
(Passed 1st Reading 9/20/07)

- Amend Ordinance Section 312-102, No Parking Anytime
(Passed 1st Reading 9/20/07)

- Amend Ordinance Section 312-116, Tow Away Zones
(Passed 1st Reading 9/20/07)

• NEW BUSINESS – Citizen initiative/request that City Council delegate the Ordinance Committee the responsibility for crafting an ordinance for good practice in planning and municipal decision making

See also:

Video: A Close Look at the Presentation of the Wetlands Ordinance to City Council on 9/20/07
The North Street Neighborhood Association has these concerns about the new Wetlands Ordinance:

• Scientific studies suggest that buffer zones of less than 50 feet are generally ineffective at protecting wetlands
• Urban wetlands and their buffers are key for flood control and pollution control, even though they may be mediocre natural habitats
• While it's true that the most permissive 10- and 35-foot buffer zones affect only about 15% of the land area of Northampton, this area contains a much greater proportion of Northampton's population and property at risk. For example, over 38% of the population lives within one mile of the center of downtown (see table)
• Unwise encroachment in the past does not justify more unwise encroachment today. Impacts accumulate
• Some homes near wetlands (Meadowbrook Apartments, Winslow, Nutting and Elm Streets) are suffering from water intrusion, yet the Conservation Commission and the Planning Board have not yet analyzed these problems to prevent a repetition of mistakes
• Several failing stormwater mitigation schemes (such as those at Northampton High School, Carlon Drive and Bridge Street School) need analysis
• Bruce Young recently noted that compliance with wetlands protection agreements has been a big problem in Northampton. Conservation Commissioner Downey Meyer spoke to the crux of the matter at the hearing of January 22 (commenting on a prior version of Kohl's proposal with 25 units):

  ...it's not a question of our intentions but...imagine the worst, the Holmesian 'bad man'...you have to draft rules for the worst actor, for the least responsive landowner, especially if they're supposed to protect a resource that is supposed to last in perpetuity... I think that...space prevents incursion.

In consultation with HYLA Ecological Services, we recommend these changes to the Wetlands Ordinance in zoning districts URB and URC:

• No disturbance closer than 25 feet
• No more than 10%-15% of that portion of the buffer zone that’s 25-50 feet from a wetland should be covered with impervious surface of any kind
• No structures closer than 50 feet EXCEPT
• At the discretion of the Conservation Commission, the landowner may build a structure in the portion of the buffer zone that’s 25-50 feet from a wetland, provided the structure covers no more than 10% of that portion of the buffer zone

Other exceptions:

• Building on existing impervious surfaces or modifying (without enlarging footprint of) existing structures in the buffer zone
• Emergency projects
• Exception for some class of limited projects - most notably driveways

City Council Enacts New Wetlands Ordinance, Including 10-Foot Buffers
Councilor Dostal proposed two amendments to the ordinance, but neither was approved by the majority. One amendment called for compensating landowners whose use of their land would be restricted by the vernal pool regulations in the new ordinance. The other called for 50-foot no-disturbance wetlands buffers throughout the city, with an exception for industrial and business districts representing 5% of Northampton's land area. In those districts, 10-foot buffers would have been permitted in exchange for extraordinary mitigation or open space preservation measures. We applaud Councilor Dostal's attempt to reduce the risks of narrow buffer zones, especially for those who reside in Northampton's urban areas. On this latter amendment, he was joined in support by Councilor Raymond LaBarge.

During the discussion of the ordinance, Conservation and Land Use Planner Bruce Young asserted that wetlands buffer zones were less important in Northampton's more built-up areas, as opposed to those on the outskirts. This seems plausible with respect to wildlife and natural habitats. The wetlands in-town tend to be hemmed in, surrounded by disruptive human activities, and more fragmented. Some are degraded with invasive species and man-made materials such as masonry.

We believe, however, that our in-town buffers are more important than average when it comes to flood mitigation and water pollution. A disproportionate percentage of the people and property of the city are found in the areas now subject to 10-foot wetlands buffers. Our drainage systems there are already under stress. Flood damage reports from Tropical Storm Floyd show clusters of red flags in our urban areas, even under the previous, more restrictive buffer zone regime.

It also stands to reason that stormwater runoff, with its chemicals, oils, sand, silt, and other contaminants, is a more serious issue in our more urban areas, with their large concentrations of human activity, cars and impervious surfaces. Narrow wetlands buffers will enable that pollution to enter our streams and rivers more quickly, with less processing, and in higher volumes. This runs contrary to the spirit of the Connecticut River Strategic Plan (2003), which "proposes the removal of impervious surfaces within 50 feet of streams..." As former Councilor Alex Ghiselin observed during the public comment period, cleaning up the Connecticut River has been one of the region's signal achievements during the past generation. It's a shame to imperil this work.

When illustrating how the new ordinance might be applied, Bruce Young dwelt on the hypothetical example of a homeowner who wants to build an accessory apartment on their property, and how relaxed buffer zone requirements could facilitate that. While this came across as innocuous and benign, there was no discussion of the cumulative impact of many landowners encroaching on wetlands. It's easy to see how the Conservation Commission, by giving away our flood protection piecemeal over time, could materially impact the city's experience during the next major rainstorm.

Also glossed over was the impact of major projects, such as Kohl Construction's [condo proposal] for the woods behind North Street...

Councilor Narkewicz objected to the holding up of Springfield's wetlands regulations as a model for Northampton. He said that while Springfield requires a minimum of a 50-foot undisturbed buffer, it will grant variances. He neglected to mention that these variances are conditioned on the applicant demonstrating that "work or alterations within the fifty (50) foot buffer will enhance the wetland interests specified under this ordinance". We stand by our claim that Springfield's regulations are considerably more friendly to the environment than Northampton's new ordinance. As the Valley Advocate reports this week, "A member of the Springfield Conservation Commission who declined to be identified stated that Northampton’s 10-foot buffer zone in parts of the city was not smart, as developers usually are afforded a five-foot discretion either way. Also, the official noted, it is nearly impossible not to impact wetlands when working at such close range..."

Gazette: "Council adopts wetlands ordinance"
At-large City Councilor James M. Dostal proposed an amendment Thursday that called for increasing the 10 feet no-encroachment zones in urban residential districts to 50 feet because of serious concerns about homes flooding, saying "We shouldn't be building there..."

Hyla Ecological Services Analyzes the Proposed Wetlands Ordinance
"Buffers of less than 50 feet in width are generally ineffective in protecting wetlands. Buffers larger than 50 feet are necessary to protect wetlands from an influx of sediment and nutrients, to protect wetlands from direct human disturbance, to protect sensitive wildlife species from adverse impacts, and to protect wetlands from the adverse effects of changes in quantity of water entering the wetland... (Castelle et al., 'Wetland Buffers: Use and Effectiveness', 1992)

The proposed ordinance is not consistent with past practice, and favors substantial new encroachments on Northampton's wetlands

Is the Proposed Wetlands Ordinance Similar to Current Buffer Zone Policy? Judge for Yourself
...in a review of the Commission's minutes from 2004 (PDF), we found one case where the applicant proposed to disturb 26% of a 50-foot buffer. The minutes report: "Sweetser asked if the NCC has ever permitted a project with this much disturbance. Body and Carbin said no."

Now compare this to the proposed Wetlands Ordinance, which dramatically expands the number of zoning districts open to 10-foot encroachment, and this encroachment includes structures, not just "grading and native plantings". More generally, the new language positively encourages developers to build near wetlands in the name of infill, setting the bar high for anyone inclined to object to such encroachment...

Hyla Report: Northampton Wetlands Buffers at Narrow End of Massachusetts Spectrum
Hyla reviewed wetland bylaws and regulations compiled by the Massachusetts Association of Conservation Commissions to generate a representative survey of buffer zone regimes around the state. The chart below summarizes their findings. The text of the bylaws analyzed may be downloaded as a PDF.

* NB = Hopkinton allows 10' utilities, 15' driveway, Manchester allows 25' driveway

Northborough has lowest no disturb setback of 15', Methuen has 20', all others have min. of 25'

With 10-foot buffer zones, Northampton is clearly at the narrow end of the spectrum.

Gazette guest column: "Don't ease controls on wetlands" (10/25/07, emphasis added)
[Alexandra Dawson, chair of Hadley's Conservation Commission, writes,] ...Northampton has adopted changes to its bylaws that limit the setback between development and wetlands in the business district to 10 feet, although it is obvious that 10 feet is not even enough space to accommodate the big yellow machines that do the building. It is true that a recent court decision indicates that wetlands ordinances (or conservation commission regulations adopted under them) should enumerate setbacks so that builders need not guess what will be required of them. Unfortunately, there is also case law stating that whatever is so established limits the commission's discretion to ask for more unless there is a specific showing of why one proposal stands out from the others. If the setback in the ordinance is 10 feet, it will be very hard for the commission to justify a permit restricting building for 50 feet. For this reason, most eastern Massachusetts bylaws that contain setbacks start at 25 to 50 feet.

Just Released: Planner's Guide to Wetland Buffers for Local Governments
Most striking is that some locales desire wider buffers in areas of intense land use to address the higher levels of pollution and runoff. By contrast, Northampton has its narrowest buffers in these areas.

Video: Conservation Commission Meeting of 3/12/09; Deadlock on Kohl Condo Proposal; Kohl Seeks to Withdraw Application

Kohl Files Narrative and Drainage Report with Revised Condo Proposal; Interpreting the Wetlands Ordinance (3/6/09)

Northampton Conservation Planner: Wetlands Protection Agreements Are Being Violated (1/28/09)

"Innovative Non-Zoning Approaches to Encourage Smart Growth and Protect Public Health" - Video with Wayne Feiden and Bruce Young

Comparing the New Hazards Mitigation Plan to the Old One: Wetlands Protection Weakened
...it is forecasted that, Massachusetts, and the rest of New England, is long overdue for a major hurricane to make landfall. Based on past hurricane and tropical storm landfalls, the frequency of tropical systems to hit the Massachusetts coastline is an average of once out of every six years." (p.28, emphasis added)