The proposed Northampton wetlands ordinance passed its first reading in the City Council on Thursday, September 20 amidst much opposition, and is slated for a second reading before the council on Thursday, October 4. If it is codified, will the city’s wetlands benefit from increased protection? Or, as some of the ordinance’s detractors fear, will many of the city’s inner wetlands be destroyed or compromised by development?
All municipalities in the state of Massachusetts, according to Western Mass Department of Environmental Protection spokeswoman Eva Tor, must follow the Massachusetts Wetlands Protection Act, enacted in 1963, making Massachusetts the first state to pass laws protecting wetlands. The act states that any work slated to be done within 100 feet of wetlands—building a shed, adding fill, constructing a condominium project, cutting down trees—requires a permit from the local Conservation Commission. The Commission, after reviewing the application and taking any further necessary steps (such as reviewing the applicants’ plan for wetland replication if they are destroying a portion of the existing wetlands or building detention ponds to prevent flooding), then decides whether or not to grant the permit. At present, the Commission can grant a permit for work as close as zero feet to a wetland.
In addition to following the statewide Wetlands Protection Act, many municipalities have passed their own ordinances, further protecting the wetlands within their borders. “Communities could decide to be more protected,” said Tor. “[But] no community could pass an ordinance that could be less protected.”
Northampton first passed a wetlands ordinance in 1989, providing the entire town with a 50-foot no-encroachment buffer zone, except at the discretion of the Conservation Commission. On October 23, 2003, Northampton city government ratified a modified policy regarding wetlands that retained the no-encroachment zone of 50 feet, but allows for exceptions in certain areas of the city, such as the Industrial Park, where work can be completed up to as close as 10 feet to a wetland and 35 feet in other parts of the city. This policy is the basis of the proposed Northampton wetlands ordinance on the table at present, according to many city officials, including city councilors David Narkewicz and Paul Spector, who assert that the ordinance simply codifies the current policy the Commission follows when granting permits for work within the 100-foot-buffer zone.
“The wetlands piece of the ordinance reflects some of the policies that the Conservation Commission has been enforcing for years,” said Narkewicz in a recent interview with the Advocate. Spector asserted the same sentiment in a Monday, September 10 interview on WHMP with Tom Vannah and Chris Collins when he stated that the new ordinance allows in certain areas—about 5 percent of the city—that “you can build within 10 feet [of wetlands] and our policy has been that, but it’s just been a policy.” Narkewicz also acknowledges that some citizens, including members of the North Street Association, are not convinced that the proposed ordinance reflects current practice in regard to building near wetlands, and are researching into past permits issued by the Commission to see what the record says.
According to the North Street Assocation, the Commission has not been following this policy. “In a review of the Commission’s minutes from 2004, we found just one case where disturbance within the 50-foot buffer was allowed,” states the association’s website, www.northassoc.org. “The applicant disturbed 26 percent of a 50-foot buffer. The minutes report: ‘(Wendy) Sweetser asked if the NCC has ever permitted a project with this much disturbance. (John) Body and (Susan) Carbin said no.’” Upon investigation, however, of the commission’s 2004 minutes, the Advocate found that although it was true that the applicant wanted to disturb 26 percent of the 50-foot buffer zone, the Commission denied the request for a permit.
Records from 2004 show that only once did the Commission grant a permit for work requiring new—as opposed to remedial—encroachment within the 50-foot no-encroachment zone. This permit was granted for the construction of a temporary parking lot at Cooley Dickinson Hospital and was estimated to compromise 10 percent of land within the 50-foot zone.
Northampton is not the only municipality in the state to enact its own wetlands ordinance. According to the Massachusetts Association of Conservation Commissions (MACC), 194 out of 351 Massachusetts cities and towns have their own wetlands bylaws or ordinances on the books. In fact, the MACC encourages municipalities to create their own ordinances in order to “utilize the Home Rule authority of this municipality so as to protect the resource areas under the Wetlands Protection Act to a great degree…” (see its website, www.maccweb.org).
The Association also urges communities that choose to impose minimum setbacks to codify these setbacks in regulations and not simply in policies, citing the 2004 case of Fieldstone Meadows Development Corporation vs. the Conservation Commission of Andover as an example of why commissions cannot make decisions about granting permits based on unwritten policy or practice alone. The 2004 case was ultimately decided in the favor of the Fieldstone Corporation on the grounds that the Commission based its denial of Fieldstone’s application to build within a 50-foot buffer zone on town policy, not an ordinance or bylaw, and that policy cannot hold up in court.
The difference between a policy and an ordinance is that a policy is simply an uncodified rule and an ordinance is law, which, according to Spector, is the main reason Northampton needs to amend its wetlands ordinance to be consistent with the policy he claims Northampton already follows. “The reason we need to have a wetlands ordinance is if we don’t, we are in serious danger of having lawsuits come forward,” said Spector in the September 10 WHMP interview. “Because right now what we have is a policy in this city where there are certain provisions for wetlands: you can’t build within 10 feet in certain areas or 100 feet somewhere else. What we have now is a policy and what we’ve found in recent state law is, that policy cannot stand. If a developer wants to come along and the city planning department says, ‘You know what you’re building next to is the most important wetlands in the city and we’re not going to allow you to do that within 50 feet or a 100 feet,’ well, right now we’re in jeopardy of being sued.”
When contacted by the Advocate about his statements on wetlands, Spector declined to comment. “I think the Advocate has a spin on every story they do and I don’t trust the Advocate to report what I say, so I must respectfully decline to comment,” he said.
Because each town’s lot size and wetland resource areas are different, the MACC does not offer a blanket minimum setback suggestion. ”Most towns don’t stick with a single setback for all purposes,” MACC executive director Ken Pruitt told the Advocate. “Many towns have a variety of setbacks—one setback for a no-disturbance of any kind, [another] for construction of structure. Some [towns] even specify setbacks for roads and driveways.”
While the MACC doesn’t suggest that all towns adopt the same minimum setback, or even that the setback should remain the same for all areas of the town or city, Pruitt did express the improbability of not disturbing areas within 10 feet of a wetland if developers were allowed to build as close to it as 10 feet.
“It depends on the type of wetland,” said Pruitt. “In terms of a 10-foot no-disturb zone, [if you build] a structure right at the 10-foot line, to move around vehicles during construction, the disturbance is sure to go around the limit of the structure. Even just to dig the foundation, you’ll have [disturbance]. Ten feet is certainly better than nothing, but if it’s going to be that small, it should be a real 10 feet and no incursion during construction.” Pruitt pointed out that developers are usually allowed a one- to two-foot discrepancy on where the wetlands delineation lies.
While most of the municipalities that have enacted wetlands ordinances are located in the eastern part of the state, there are several towns/cities in the Valley which have done so as well, including Amherst, Belchertown, Holyoke, Longmeadow, Chicopee, South Hadley and Springfield, most of which have minimum setbacks of 50 feet. However, the Springfield Conservation Commission does grant permits for work being done closer than 50 feet to the wetlands if the developer is going to make significant landscape improvements, such as vegetating a previously littered riverfront. 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.
Many city officials insist that by passing this ordinance the city will be increasing protection of wetlands. “By creating a line the sand, so to say, creating a no-disturbance line, we’re actually increasing protection [of the wetlands],” said Bruce Young, land use and conservation planner for Northampton’s Office of Planning and Development and also staff contact for Northampton’s Conservation Commission, in a recent interview with the Advocate.
However, critics of the ordinance, including Dr. Bryan Windmiller of Hyla Ecological Services, who was retained by the Coalition to Save Northampton’s Wetlands to study the language and implications of the proposed ordinance, maintain that passing this ordinance will permit work to be done much closer to wetlands than is currently allowed, and is almost certain to cause degradation to wetlands.
“Given the uniformity with which the current 50-foot no-encroachment policy is applied throughout Northampton, the net result of adoption of the Proposed Ordinance would therefore be to permit work closer to wetlands than is currently the case in projects that meet certain conditions,” writes Windmiller in his September 20 commentary on the proposed revisions to the ordinance. “I find that [the] proposed Ordinance would effectively lessen the current protections of wetland resource areas in Northampton against injurious encroachment by construction projects. The wording would provide applicants with the means to argue that projects in many areas of Northampton would qualify for reduced wetland setbacks, often as small as 10 feet from the wetland edge. Existing scientific evidence makes it very clear that setbacks of less than 50 feet from wetland edges almost inevitably result in the degradation of the wetland resource.”
Windmiller goes on to explain that while he believes the drafters of the ordinance want to encourage infill development in the inner city as opposed to sprawl, the wording of the ordinance makes what constitutes infill and what is acceptable wetlands mitigation and/or replication unclear, thus leaving the Conservation Commission vulnerable to developers’ claims as to what is or is not acceptable infill and mitigation.
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The other major part of the wetlands ordinance concerns vernal pool provisions. Vernal pools —contained basin depressions that seasonally fill with water and then drain—are essential to many organisms, including fairy shrimp, mole salamanders and wood frogs, whose survival depends on inhabiting a wetland that dries seasonally and does not pose the threat of predatory fish.
There is no additional protection for vernal pools under Northampton’s 1989 wetlands ordinance or its 2003 wetlands policy, according to Young. Vernal pools, at present, are simply regarded as wetlands and therefore subject to the same setbacks and provisions as wetlands. The new ordinance strives to afford vernal pools more protection than regular wetlands, recognizing the unique habitat they support. The ordinance calls for a 100-foot no-encroachment zone in many areas of the city such as the Central Business area and the Highway Business area, and a 200-foot no-encroachment zone in all other areas.
The Chamber of Commerce hired Michael Marcus of New England Environmental, Inc., who has also worked for Pyramid Corp. in its bid to build a Wal-Mart Supercenter at the Hampshire Mall in Hadley, to examine the issue of vernal pools. Marcus recommended changing provisions that would result in extra burdens to landowners, such as forcing them to prove that depressions on their land were not vernal pools. Marcus also felt that creating universal provisions that applied equally to all vernal pools was not the best approach; he asserted that not all pools, depending on their location and or inhabitants, require the same protection. And Marcus said the definition being used to define vernal pools was confusing as the definition included areas that might become vernal pools at some point in the future.
Many environmentalists, including Bob Bissell of the Broad Brook Coalition, felt this action was a stealthy affront to the negotiation of the ordinance and the compromises the city had made with environmentalists.
“Before the meeting it had appeared likely that the Ordinance Committee would pass the intact Wetlands Ordinance on to the City Council. However, at this 11th hour the Chamber of Commerce presented a new report from a paid consultant,” wrote Bissell in an open letter posted on Northampton Redoubt, a blog by Daryl LaFleur. “I spoke with Suzanne Beck, the executive director of the Chamber, several months ago requesting input and advice from the Chamber. She stated the Chamber had what it wanted: the 10 foot downtown buffer zone. She said the Chamber was not particularly interested in the Vernal Pool provisions. She understood the compromise: Conservationists were willing to concede some things such as the 10 foot downtown buffer as long as the Vernal Pool provisions were intact.”
The ordinance as now written for the most part follows Marcus’ recommendations. “A [state-certified] vernal pool is treated one way, but [an area] smaller than 1,000 square feet is being called a seasonal wetland,” said Young. But he added that a “resumed” vernal pool, a confined basin that holds water for two consecutive months a year or more and is free of adult fish, is being treated as a certified vernal pool.
Even with these modifications, adding provisions to protect vernal pools where none existed before is inarguably a step forward in protecting Northampton’s wetlands. But at what cost does this protection come? Are vernal pools the city’s bargaining chips, surrendered to environmentalists so that the city can allow development close to inner-city wetlands?
