In March 2005, the Atkinson Conservation Commission, in cooperation with the Atkinson Planning Board, proposed a revision to the current Wetlands Zoning ordinance (Section 410). Unfortunately, the amendment failed to pass at Town Meeting, due in part, we believe, to some confusion about the complex amendment as well as some misinformation which was distributed to voters at the last minute. However, it may also be that some voters did not like the compromises that were made in some areas in order to obtain stronger protections for our most valuable wetlands.
For the upcoming Town Meeting in March 2006, some members of the Conservation Commission as well as some concerned citizens worked to put together a new zoning proposal which we believe will provide even stronger protections for Atkinson's wetlands. This proposal was successfully submitted by petition and will appear on the Town Meeting ballot when you go to the polls on Tuesday, March 7th.
The exact text of the zoning amendment petition can be found here.
A .PDF version of the petition can be downloaded from here.
The current Wetlands Zoning ordinance may be found in Section 410 of the Atkinson Zoning Regulations here.
Why do we need a new Wetlands Zoning Ordinance?
The current Wetlands Zoning ordinance has served Atkinson well, by protecting our natural wetlands and preventing overly dense development around them. The existing ordinance is simple and succinct, and is best known for its rule which has had the biggest impact – the 100 ft. buffer from wetlands for all buildings.
However, over the 25+ years that the ordinance has been in place, a few shortcomings have become apparent:
· The definition of “wetland” in the current zoning ordinance does not match with the now mandated definition used by the State of New Hampshire. We run the very real risk of losing buffer zone protections around some of our wetland resources unless we change our ordinance.
· For some "ecologically significant" wetlands, we feel that the current 100 ft. buffer rule is inadequate, and so we are suggesting an increase to 150 ft. for these special wetlands.
· The current buffer rule is not specific enough about what can and cannot be done in the wetland buffer. While it keeps structures away from wetlands, it allows construction of roads and driveways right up to the edge of a wetland.
· The “one size fits all” buffer rule has often proven to be inflexible, and has resulted in a much higher than average number of variance applications to the Zoning Board of Adjustment.
The proposed ordinance attempts to address these issues with language which is more specific and inclusive of special situations. It attempts to provide more protection for those natural wetland resources which deserve it, while still protecting landowner's rights and allowing the average homeowner to make reasonable improvements to their homes and properties which abut wetlands with a minimum of regulatory red tape.
What is a wetland and why is it treated differently than other types of land?
Wetlands require special management and care because the water contained within them makes them different than other land areas. They may be drinking water sources, or natural habitats for certain water-loving plants and animals. In addition, wetlands may be unsuitable for building because of their weak soils, and changes to wetlands may have a wide influence on surrounding land.
The commonly-accepted definition of a functional wetland considers three characteristics:
· Soil type – Is the soil of a type and consistency that it will retain water?
· Hydrology – Does water frequently inundate or saturate the soil?
· Vegetation – If vegetation is present, is it of the type frequently found in saturated soils?
Under most definitions, all three of these criteria must be satisfied in order for the land to be recognized as a wetland deserving of special protection. Under these criteria, natural ponds and streams, swamps, and bogs all qualify as wetlands; man-made drainage ditches, maintained farm ponds, and small pockets of wet soil usually do not.
Why change our definition of “wetland”?
The State of New Hampshire defines a wetland as an area which meets all three of the above criteria. The current Atkinson Wetlands Zoning ordinance includes open bodies of water, but only looks at soil type when classifying all other wetlands. In some cases, this results in a requirement to maintain a 100ft protective buffer around an area which doesn't truly function as a wetland, and may result in forcing roads and development into parts of a land parcel which would otherwise remain undisturbed.
Under a State law passed last year, the term "wetland" has a very specific meaning in any State law or local ordinance. Towns are still allowed to establish additional protections to wetlands and other natural resources, but they must use the State's definition when referring to wetlands. Because the State's definition does not include all of the natural resources that our current "wetlands" definition includes, such as streams and surface waters, we run the real risk of losing all buffer zone protection for these resources if we fail to update our ordinance.
The proposed ordinance adopts the State-mandated definition of "wetland", but then goes on to define a much more inclusive class of "wetland resources" around which buffer zones are established. "Wetland resources" explicitly includes most wetlands, surface waters, and intermittent streams, but excludes constructed drainage structures and actively-maintained, man-made ponds.
What is a “wetland buffer”?
A wetland buffer is a measured portion of the upland area adjacent to a wetland or surface water. Buffers reduce the adverse effects of human activities on the wetland or surface water by protecting water quality, protecting and providing wildlife habitat, reducing direct human disturbance, and maintaining aesthetic diversity and recreational value.
The width of a wetland buffer should in most cases depend on the nature and functional values of a wetland. The current Atkinson Wetlands Zoning ordinance provides for a fixed 100ft buffer around all wetlands and surface waters.
Why change the size of our wetland buffers?
Atkinson has a wide diversity of wetland resources. Some wetlands, such as Sawmill Swamp, provide a wide array of valuable functions, such as groundwater recharge, water quality protection, and wildlife habitat, among others. The current 100ft buffer is often not sufficient to protect the functions of these most valuable wetlands, and for this reason, the proposed ordinance species a 150ft buffer around seven specific wetlands. These wetlands were selected as the result of a professional scientific study, and are designated as “ecologically significant”.
All other wetland resources will retain the existing 100ft buffer requirement.
What activities are currently allowed in a wetland buffer?
As stated above, the primary purpose of a wetland buffer is to protect the wetland from any adverse effects of human activities. Therefore it makes sense to put some kind of restrictions on activities which can be conducted in the buffer.
However, the current zoning ordinance only excludes buildings which discharge waste, detached garages, and waste disposal systems from the wetland buffer. All other activities are allowed, even including activities which entirely negate the purpose of the buffer, such as building roads or paving a parking lot right up to the edge of a wetland.
How does the proposed ordinance control activities in the wetland buffer?
The proposed ordinance calls for a vegetative buffer around the more valuable wetlands, in which a healthy, well-distributed stand of trees, saplings, shrubs, and/or groundcover must be maintained. Pesticides and manufactured fertilizers are also prohibited in these vegetative buffers.
Under the proposed ordinance, all wetlands buffers also have specific criteria for the construction of accessory structures (such as sheds and detached garages), septic systems, and other constructed site improvements (such as swimming pools, patios, fences, etc.) in the wetland buffer.
What is a “wetland variance” and how is it obtained?
Under the current ordinance, if a landowner needs or desires to construct a building or an addition to an existing building which would cause it to encroach on the 100ft wetland buffer, that landowner must apply for a “variance” from the zoning law. This must be done because the existing ordinance provides no other form of relief from this rule.
There is a standard application which must be completed and submitted to the Zoning Board of Adjustment, after which a public hearing is held to consider the request. The ZBA has a set of criteria (defined by NH State law) that must be used in this consideration, and all of the criteria must be met in order for the variance to be granted. Oftentimes, the judgment as to whether a proposal meets these criteria is a very subjective one, and it is difficult to determine if a given proposal will meet the criteria until the actual hearing takes place.
How does the proposed ordinance provide variance relief?
Many wetland variance applications come from ordinary homeowners rather than developers. Gathering the information required to show that the project meets the defined criteria can be very expensive to the average resident, even for a simple request for a new porch or deck. Also, the time required to review these routine applications by the all-volunteer ZBA and the Conservation Commission takes away valuable time from the other important activities of these boards.
The proposed ordinance provides relief by allowing for the granting of a “special exception” for limited expansion into the wetland buffer zone on existing lots of record. Special exceptions, like variances, are granted by the ZBA but they have a well-defined set of very specific criteria. If the proposal meets those criteria, approval is almost automatic. By allowing the granting of a special exception instead of requiring a variance, owners of existing houses and lots which abut wetland resources will have a much lower hurdle to cross in order to reasonably expand and improve their homes.