| Joanne Cole |
Past practice, the wording of the zoning ordinance, depictions on the project plans and other considerations came into conflict as the Planning Board continued reviewing an application by Oz Associates at an April 15 meeting.
At issue was whether and how wetlands must be considered when calculating “net residential acreage” and how much development is allowed. For Oz Associates, the answer will determine whether they can have a duplex as planned on a proposed new residential lot or only a single-family dwelling plus a small accessory dwelling unit.
Along with the single residential lot, Oz Associates proposes to create five new commercial lots in an existing subdivision that borders Oz Drive, Sabbathday Road and Mayall Road. The property totals 15.6 acres in the Residential Commercial District and Groundwater Protection Overlay zone (Map 2 Lots 36-3 and 36-4).
In New Gloucester’s zoning ordinance “net residential acreage” is defined as what’s buildable when the land is “in its natural state.” The figure “shall be determined by subtracting unsuitable and marginal areas from the gross area of the parcel.”
A duplex in the applicable zoning district needs at least four acres of buildable land. Subtracting the wetlands depicted on Oz Associates’ plans would put the residential lot under the required minimum, everyone appeared to agree.
But does the ordinance in fact require those wetlands to be subtracted?
The ordinance specifies several areas and conditions to subtract. They include landlocked areas, areas within the floodplain, areas with very poorly drained soils, and areas that are filled or drained wetlands or great ponds. Wetlands as such are not on the list.
Oz Associates’ consulting engineers argued that the list is determinative: if it’s not explicitly called out, it shouldn’t be deducted, they suggested. If these wetlands had or were “very poorly drained soils,” the deduction would come into play, they said. But the soils aren’t very poorly drained, according to the soil specialists’ investigations, the engineers said.
Board member Steve Libby countered with past practice. Every relevant project over the last 30 years has subtracted wetlands when calculating net residential acreage, he said. “I’ve never seen a subdivision where you can build in the wetland,” said Libby. “We don’t allow wetland to be built in. We don’t.” He argued for reading the ordinance as a whole, including its language regarding “buildable areas.”
Chair Doug McAtee agreed that in his experience, “We’ve always subtracted those wetlands.” But he was clearly troubled by the list. “The definition should say ‘any land that’s wet,’ but it doesn’t,” McAtee said.
Board members had observed standing water on a recent site walk, it emerged. The water was seasonal, the project engineers said, returning to their point about soils and drainage. But the area “is on the plan as wetlands,” member Erik Hargreaves noted. That’s the Army Corps of Engineers’ designation, not the ordinance’s definition, one of Oz Associates’ engineers replied. “A wetland is a wetland,” said Steve Libby.
As discussion continued, it became clear that board members themselves disagreed over how to interpret and apply the ordinance in the circumstances. They turned to workarounds that might permit the project to move forward without setting a debatable precedent regarding wetlands.
Oz Associates’ engineers were on board with that idea. They’ll explore moving lot lines and adjusting other variables in hopes of meeting the net residential acreage minimums while also subtracting the wetlands.
The April 15 meeting ended with the board tabling the application until Oz Associates returns to the Planning Board on May 6. The meeting had opened with a public hearing on Oz Associates’ application – but no public.
For their part, the board may well explore clarifying how wetlands are defined and treated in the zoning ordinance – a longer conversation for a different occasion.
Watch video of the Planning Board’s April 15, 2025, meeting at this link. Find links to agendas, documents and more on the Planning Board page at this link.
