2023 Planning Board Proposed
Stormwater Amendment

Storm Clouds

Planning Board Proposes Removing Stormwater Regulations from Zoning Ordinance Again for 2023

After voters rejected relinquishing control of stormwater ordinance to the Planning Board in 2022, the Planning Board has again chosen to propose removing stormwater restrictions from the Zoning Ordinance for 2023. Instead of taking the voters rejection of this concept by greater than a 20% margin as a sign that voters want to retain control of drainage in our ordinance, the Planning Board Plans to pursue essentially the same proposal this year. This time they plan more "education of voters". It is not clear why they continue to push to remove restrictions that have been successful in protecting our town for years.

Reasons not to remove stormwater restrictions from zoning ordinance:

The Planning Board has proposed placing an amendment to stormwater requirements of the Hollis Zoning ordinance on the ballot in March 2023. I strongly recommend against amending the town’s stormwater restrictions in any manner beyond what is legally required. I will address the problems in the proposal as stated below:

1. Removing requirements from the ordinance disenfranchises voters.

Removing stormwater requirements from the Zoning ordinance is anti-democratic. By changing the restrictions from ordinance to regulation, the Planning Board would be taking on the responsibility of drainage regulations. Only the Planning Board members have a vote on town regulations. Why wouldn’t we allow the residents to determine such important issues? Hollis has a strong tradition of direct democracy that has served us well. We shouldn’t allow our input to be diminished. We should not allow the Planning Board to change drainage regulations by a simple majority vote of its membership at any time it chooses.

2. Exceptions from regulations are easier than from ordinances.

It is far easier for a developer to get an exception to a regulation verses an ordinance. The process for exceptions to regulations includes a simple waiver request from the Planning Board. The criteria for issuing a waiver requires that the planning board agree that the requested exception is in the spirit of the regulation. The Planning Board has issued waivers favoring developers frequently in the past, why give them more ability to issue waivers?

If the requirements remain in the zoning ordinance, the bar for exceptions is much higher. First off, a separate application must be made to the Zoning Board of Adjustment. The ZBA is a more formal body with stricter rules. Applicants typically choose representation by a lawyer at the ZBA and once the case is heard, the ZBA must find that 5 strict criteria are satisfied before issuing a variance. Specifically, the developer must prove that following the ordinance poses a unique hardship. This is hard to satisfy.

It is clear that the will of the voters is more directly expressed by the Zoning Board Variance Process than it is by the Planning Board waiver process. Consider the waivers that were issued to allow the construction of the Keyes Hill project. Don’t we want to enforce stormwater and wetland requirements rigorously? Voting to remove the stormwater restrictions from the Zoning ordinance is a vote to reduce the influence of Town residents and relax the restrictions that our town depends on to maintain its rural character.

 

3. The Planning Board has not voted to finalize the proposed regulation language 

As of 10-19-2022 only a draft of the proposed regulation is available. Although Planning Staff has proposed removing our stormwater regulations from the Zoning Ordinance, as of yet they have only proposed a draft of what might replace those restrictions in regulation. How could anyone vote to remove the restrictions from our ordinance without knowing the final exact language that the Planning Board proposes for its regulation?

4. Regulations can be changed without holding a town vote.

Even if the Planning Board were to vote on the regulations that they would like to enact. There is no guarantee that those regulations would not be changed in few months since the process for changing regulations requires only 1 public hearing and a vote of the Planning Board. The Planning Department has even argued that this variability is a feature or a benefit of regulations. I see the process of amending zoning ordinance, which can occur only once per year and involves building consensus of the entire town as benefit. Even with the more rigorous process of ordinance amendment mistakes are made. In 2022 the Board reversed two decisions it promoted in 2017 which, as it turned out, were detrimental to our town. It is important that residents exercise as much influence as possible to preserve the town we love. Decisions of this magnitude should not be made by an unelected board. 

5. The EPA has recently changed the requirements due to a Supreme Court case.

The Town Planner has claimed that the variability of moving the restrictions to regulations is needed to comply with EPA requirements. The EPA has changed its stance on these stormwater restrictions as recently as last year and has lost a lawsuit at the US Supreme court regarding the constitutionality of this mandate.

https://www.epa.gov/wotus/about-waters-united-states

The EPA is presently interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.

 

Hollis needs to retain direct control over its stormwater ordinance.

6. Hollis is a beautiful town and our present regulations have made it so.

Another weak argument pushed to support disenfranchising residents by removing stormwater restrictions from the zoning ordinance is that the developments built in town are somehow unsightly or that the present regulations require storm basins that are too large. Hollis is one of the most beautiful towns in the state. Do you think our existing ordinance has done a poor job of preserving the esthetics of the Town? The Town Planning Consultant points to a basin constructed on Pine Hill Rd as an example of over design. That basin’s vegetated slope is not offensive to the eye, and keeping stormwater on site is an important achievement of the present ordinance. Stormwater that gets to the roadway puts the burden on the town to manage it. Along with this come many costly regulations and mandates. Hollis' existing position of providing as much drainage on site is the proper way for our rural town to address stormwater. The forces pushing for urbanized solutions will surely degrade the character of our town. 

7. Reducing stormwater requirements shifts costs from developers to the town.

Our present ordinance requires that stormwater be treated on site. It puts the cost of stormwater management onto the developers and not on the town. Runoff that leaves developments becomes a town problem to manage. Reducing the requirements for example to address a 10-year storm vs a 25-year storm would only serve to lower the cost of development for builders and shift that cost of maintaining roadway runoff onto the town. Such a reduction in development cost will facilitate more new construction to town. Don’t we have enough already?

8. The ordinance’s purpose is to protect the Town, not enable and simplify development.

The purpose of town requirements is to protect town resources. Planning staff has claimed that our ordinance is confusing and stormwater requirements are distributed across many regulations and ordinances. This unique regulatory scheme has been developed over many years by dedicated residents seeking to preserve the town. Restrictions are meant to protect town resources. If they are hard to administer or unique from other towns, this is a benefit, not a weakness. If administration of the existing regulatory scheme is difficult, I hold that the difficulty is a worthwhile cost of the protection they provide. Compare Hollis to other nearby towns. What do you think? Simplifying things for developers will only serve to homogenize Hollis with nearby jurisdictions and reduce costs for developers. Is this what we want?

 

Recommendation on proposed removal of stormwater restrictions from ordinance:

In conclusion, in order to preserve the right of residents to direct growth in town and to preserve our town’s resources, please tell the planning board to ensure that that the stormwater restrictions that have protected our town for years remain in our zoning ordinance and squarely in the hands of the town’s residents.

Summary of the 2020 Ordinance Proposal by Hollis

Planning Board Staff

During the fall of 2019 the Planning Department was reviewing draft language for proposed stormwater ordinance changes. These changes are being driven by a federal EPA permit based on regulation that is changed due to a recent US Supreme Court ruling.  

The proposed stormwater ordinance is costly to the town and damages private property rights, business and agricultural interests. 

It is likely that the changes are not needed or can be implemented in a limited fashion to protect the Town.

Recommendation on 2021 proposed removal of storm water restrictions from ordinance: In order to preserve the right of residents to direct growth in town and to preserve our town’s resources, please tell the Planning Board to ensure that that the storm water restrictions that have protected our town for years remain in our zoning ordinance and squarely in the hands of the town’s residents. Moving rules from ordinance to regulation means that a variance is not needed for exceptions. This eliminates the ZBA process and sets a much lower standard for exception. In addition, in the future the Planning Board alone will be able to make changes without a vote by Town residents. We cannot give up our power to control development and hand that authority to an unelected Planning Board. Vote "NO" on removing storm water restrictions from the zoning ordinance.

Letter to the Select Board Regarding Federal Storm Water Permit

Update 12-20-2020: The Planning Board has engaged the Town Engineer to propose revised stormwater restrictions and has indicated that the changes will be targeted for 2022.

Update 12-1 2020: Exact text of Planning Board Staff's proposal with explanation:

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Stream Flow From Rocky Pond