High groundwater ordinance recommendations forwarded to council
The Planning Commission dedicated its Oct. 18 meeting to a workshop with the town solicitor and town engineer on the proposed amendments to the Zoning Ordinance related to the high groundwater table and impervious layer overlay district.
At the end of the work session, the commission voted 6-0 to pass the recommended changes on to the Town Council.
The commission began the review with a focus on a table for sub-district A, lots listing percents of maximum impervious cover allowed in relation to groundwater and impervious layer levels. Commissioner Richard Ventrone attacked the validity of an 8 percent maximum construction allowance for a lot with a water table of 0 to 10 inches.
"If I buy a fishing pond and say I want to build a house, I can?" Ventrone asked.
Town Solicitor Lauriston Parks balked at the inference, noting that the chart started with zero and went to the highest number to be complete. "The fact that you are never going to allow anything there is negligent," he said.
According to the current ordinance, the slab, not including pilings/ footings, of a dwelling shall have a 12-inch separation between the bottom elevation of the structure and the seasonal high groundwater table. Commissioner Victor Calabretta reminded the commission at the previous meeting of the12-inch requirement already included in the ordinance.
Calabretta also reminded everyone present that the chart addressed seasonal groundwater, which would only be zero during the wet season.
Commission Chairman Gary Girard mediated with a comment that the Town Council made the final decision, not the commission.
Ventrone asked if the rest of the commission was comfortable with 8 percent at 0 to10 inches. "We should go with four percent," he urged.
Commissioner Betty Hubbard considered the change, agreeing that the ordinance should be "as restrictive as possible."
Commissioner Michael White spoke against the idea, saying the change would prohibit building.
Parks warned the board that anything other than 0 percent in the chart would constitute a regulatory taking. "It's like having an ordinance that says if you had a certain lot you can't build on it," he said.
Ventrone asked if the board denied a proposal based on the drafted proposal, would the denial be interpreted as a regulatory taking.
Parks cited due diligence, saying it was the property owner's responsibility to know what he was buying before buying it. He explained that flexibility in the ordinance allowed an applicant to go before the board with a proposal. However, by writing the ordinance to make a lot unbuildable, "then you are blocking due process of law."
Parks noted that when Town Planner Lisa Bryer prepared the table she had a basis for calculating the table. "What you are proposing is arbitrary," he said.
Bryer said at the last meeting the table "closed a loophole" in the ordinance by starting from zero.
Hubbard agreed with the solicitor, saying the table as set up would restrict some applications "to less than what we gave them."
The commission went on to discuss a suggestion to require a well and individual septic disposal system be on the same property as the proposed construction.
Ventrone asked if the town would have to take the property if it were not allowed.
The solicitor reminded the board of the development plan process, where an applicant can ask for a use variance. "Don't try to make lawsuits against the town when none are present," Parks scolded.
Some of the commissioners wondered if allowing structures 120 square feet should be regulated or exempt
Parks noted the reason for an exemption for structures less than 120 square feet was that the town planner saw no need for people to seek permission to build a shed.
The commission also discussed wording that should be stricken or revised to clarify the criteria and standards for development.
Jack Regan from Seaside Drive offered possible wording to be included in the sections of the amendment for clarification of requirements. He suggested asking an applicant to present the board with data that the effluent coming from the septic system was not harmful to neighboring properties.
Calabretta pointed out that an applicant already had an approved septic system, and such wording would ask for the applicant to go through the process again. "We're talking about treatment systems that are creating close to drinking water quality back into the ground. It's clean," he said, adding that an effluent standard already existed and such a demand would be a major change to the ordinance.
Regan pressed the validity of requiring septic system data to be presented. Ventrone agreed, saying he was not comfortable without the added proof of expert data.
Calabretta reminded them that an expert, hydro-geologist Paul Aldinger, already came in for consultation when questions on a development plan arose.
The town engineer defended the ordinance, noting that the standards written "are what the septic systems can provide."
Calabretta warned that the added requirement would put a burden on the applicant. "What this gentleman is suggesting is that the applicant bring in a hydro-geologist to pay for a bunch of experts to prove that the design he has is good."
Hubbard moved to accept the proposed amendment and forward it to the Town Council. Ventrone seconded it.
Commissioner Jean Brown was absent.