Peterborough’s Article 2 will set Planning Board’s level of discretion; board, experts, residents weigh in

  • The Peterborough Town House Staff photo by Ben Conant

Monadnock Ledger-Transcript
Published: 5/5/2021 3:03:05 PM

Next week, Peterborough voters will decide on Article 2, which seeks to strike a clause in the Open Space Residential Development ordinance that gives Planning Board members the ability to modify the requirements. Although the allowance was intended to help streamline the Planning Board’s review process, Article 2 proponents believe Board members have too much freedom to deviate from the code.

If Article 2 passes, it will eliminate this sentence from the zoning code: “It is the intent of this section to authorize the Planning Board to modify any of the requirements herein as deemed reasonable by the Board.”

The Planning Board has taken advantage of the clause just three times in the past 19 years, by the estimate of Planning Board member Alan Zeller.

The clause was intended to make it easier for Open Space Residential Developments to get approved, Peterborough’s former Community Development Director Carol Ogilvie said. There are few OSRDs in this part of the state, Ogilvie said. “Frankly, one of the reasons is it’s very hard to do one,” she said. Ogilvie, who wrote the current version of the ordinance, said the clause can help to streamline a project’s application process when an applicant doesn’t quite meet every requirement in the ordinance. For example, if an applicant can only muster a 12-foot buffer instead of 15, the Planning Board can use the clause to waive that requirement rather than making the applicant go to the Zoning Board and make a hardship appeal, she said. “Proving a hardship is very, very difficult,” especially when considering a totally new  project, she said. “In my view, it should be easier to do an Open Space ordinance rather than more difficult,” she said. Ogilvie said she found the clause to be useful, and never thought it was misused during her tenure with the town.

“We recognize that this was likely intended to allow some flexibility, but we feel the current Planning Board seems ready to take it to an unprecedented extreme,” Article 2 proponent  Mike Tompkins said. He specifically found fault with the Planning Board’s recent discussions about using the clause to allow for quarter-acre lots in the proposed OSRD subdivision of the Walden Eco Village on Garland Way, despite language elsewhere in the ordinance that says “in no case” shall lot sizes be less than three-quarters of an acre, he said. Article 2 may not affect the Walden Eco Village proposal, Tompkins said, “but it appears that future development proposals, such as the one for Burke Road, may receive similar treatment by the current Planning Board.”

The OSRD ordinance ultimately needs language that specifies when it is and isn’t appropriate for the Planning Board to override the  rules, Tompkins said. “I consider the deletion of the sentence a first step in that conversation. This would re-set the code and stop any Planning Board from making decisions that take liberties with it until such time as the code is improved,” he said. Fifty-eight residents have signed the petition article to date, he said.

Planning Board member Alan Zeller said he would prefer to keep the clause in place, but it would be an overstep to use the clause to allow for quarter-acre lots at the Walden Eco Village site. Zeller and one other Planning Board member indicated they wanted three-quarter-acre lots in that subdivision at a recent meeting, although his opinion would be different if the site were served by town water and sewer, he said. “I don’t want to throw the baby out with the bathwater,” he said of the clause in the ordinance. “We might regret it someday.”

Planning Board Chair Ivy Vann said she urges voters to reject Article 2 for two reasons. “I believe the opponents are incorrect about their claim that the Planning Board is misusing [the clause],” she said. “It is intended to give the Planning Board the flexibility necessary to make the best development decisions we can,” she said. In the case of the Eco Village subdivision, the Board’s been discussing smaller lot sizes with the applicants for more than a year, she said. Quarter-acre lots would lead to ten more acres in conservation instead of being part of someone’s yard, she said. Furthermore, smaller lots are more amenable to the applicant’s desire for close-together houses and off-site parking.

But, does the contested clause override the ordinance’s language about minimum lot size? “We asked that very question,” Vann said, and the town’s legal counsel said the Board could, in fact, use the clause for that purpose.

Voters should also reject Article 2 on principle, Vann said. “It is really bad practice to work on the zoning ordinance by petition,” she said. “We have a process that involves public engagement,” she said, whereas petitions involve certain pockets of residents rather than the general public. That process takes time, Vann said, perhaps more time than people expect. Peterborough’s warrant has contained a zoning petition article every year since 2018, Vann said.

The Planning Board has not yet formally decided to allow smaller lots for the Walden Eco Village project, and the concept could fall out of favor as the discussion continues or if Board members change, Vann said.

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