Valley Advocate: “Bogged Down – Doug Kohl runs into trouble with plans for his subdivision off North Street in Northampton”

The Valley Advocate today published “Bogged Down – Doug Kohl runs into trouble with plans for his subdivision off North Street in Northampton”. Mike Kirby reports on the gestation of the new Wetlands Ordinance and the problems Kohl Construction is having with securing Conservation Commission approval for its proposed condo project. Some excerpts:

…a cloud hangs over the [Wetlands Ordinance enacted in 2007]. On February 12, the Northampton Conservation Commission created a subcommittee to take a hard look at these new regulations. The commissioners are talking about going back to the City Council and suggesting some changes. The distant glow of political fireworks hovers over the horizon…

…off North Street…Kohl’s land is wet; it has a very high water table. The buildable area is small. Borings done by Kohl’s engineers revealed standing water 36 inches or less under the ground. Because of this high water table, there are no cellars and the dry wells designed to hold runoff from roofs only go down 12 inches.

Out in the boondocks, crowding wetlands might not have big repercussions except to the beavers. Around the Industrial Park and King Street you have big parking lots and huge buildings. You have a lot of people living nearby with cellars. You risk having detention structures that don’t work as engineers say they are going to. You are risking flooding to nearby built-up neighborhoods when and if the 50- and 100-year storms hit. Sixty feet from the Kohl detention pond there are wetlands at 91 feet of altitude; the floor of the detention pond in his first design was at 88 feet of altitude; there is a creek subject to seasonal flooding not too far away. Will this detention structure become a seasonal pond, breeding mosquitoes? Will it freeze over in winter and let runoff go right into the swamp?

…It’s as if old sexist notions applied to land live on in planning circles. Once treated badly, never to be treated with honor, says our planning department. Neighbors think differently. They like their forested areas. Piles of fill out in the forest don’t bother them as long as the forest shrouds these old crimes…

…[the mayor] is vitally concerned with what happens at the Conservation Commission, whose members hold a veto power over many developments adjoining wetlands. Some of her appointees to commissions in Northampton either have city jobs or jobs with firms that contract with city hall or have close relatives who have city jobs…

The best speech [at the City Council meeting of 9/20/07] by a city councilor, for my money, was given by Jim Dostal, who made a strong statement on the flooding that he had seen over the years as a DPW employee: “If we have protection, the protection should be for all neighborhoods.”

…The ConsCom is digging in its heels for a protracted fight [with respect to Kohl’s condo proposal off North Street]. In-fill housing in a swampy area cannot be done on the cheap. The two meetings that Doug Kohl and his engineers had with the ConsCom in December and January have produced unanimity: the Commission does not want any man-made structures less than 35 feet from the wetlands, and the things that Doug Kohl has done to show mitigation do not rise to the standard of the ordinance…

Somewhere along the line, Northampton city councilors and the mayor forgot that the members of the Conservation Commission may know more about the complex network of laws that they are sworn to enforce than they do, and they should butt out.

See also:

Carlon Drive: Compensatory Wetland Not Working

Two Articles on Wetlands in the Valley Advocate
Records from 2004 show that only once did the Commission grant a permit
for work requiring new—as opposed to remedial—encroachment within the
50-foot no-encroachment zone. This permit was granted for the
construction of a temporary parking lot at Cooley Dickinson Hospital
and was estimated to compromise 10 percent of land within the 50-foot

…[Massachusetts Association of Conservation
Commissions executive director Ken] Pruitt did express the
improbability of not disturbing areas within 10 feet of a wetland if
developers were allowed to build as close to it as 10 feet…

most of the municipalities that have enacted wetlands ordinances are
located in the eastern part of the state, there are several
towns/cities in the Valley which have done so as well, including
Amherst, Belchertown, Holyoke, Longmeadow, Chicopee, South Hadley and
Springfield, most of which have minimum setbacks of 50 feet. However,
the Springfield Conservation Commission does grant permits for work
being done closer than 50 feet to the wetlands if the developer is
going to make significant landscape improvements, such as vegetating a
previously littered riverfront. A member of the Springfield
Conservation Commission who declined to be identified stated that
Northampton’s 10-foot buffer zone in parts of the city was not smart,
as developers usually are afforded a five-foot discretion either way.
Also, the official noted, it is nearly impossible not to impact
wetlands when working at such close range…

[Dr. Bryan
Windmiller of Hyla Ecological Services states] …that while he
believes the drafters of the ordinance want to encourage infill
development in the inner city as opposed to sprawl, the wording of the
ordinance makes what constitutes infill and what is acceptable wetlands
mitigation and/or replication unclear, thus leaving the Conservation
Commission vulnerable to developers’ claims as to what is or is not
acceptable infill and mitigation.

…adding provisions to
protect vernal pools where none existed before is inarguably a step
forward in protecting Northampton’s wetlands. But at what cost does
this protection come? Are vernal pools the city’s bargaining chips,
surrendered to environmentalists so that the city can allow development
close to inner-city wetlands?

Our Response to Jim Levey’s Letter to the Gazette
the existing regulations may have permitted developers to encroach to
within zero feet of wetlands, in practice this has been rare. For
example, a review of the Conservation Commission’s minutes from 2004 (PDF) finds the following:

In the case of Dudanake NOI, 12/9/04, the applicant
proposed to disturb 26% of a 50-foot buffer. The minutes report:
“Sweetser asked if the NCC has ever permitted a project with this much
disturbance. Body and Carbin said no.”

Our postcard
does not call for Councilors to “torpedo” the proposed wetlands
ordinance. It does call on them to make some simple changes, namely to
require 50-foot no-disturbance buffers for new development. This is an
entirely mainstream standard in line with regulations on the books in
municipalities like Springfield. Wetlands scientists find that buffers of less than 50 feet represent inadequate protection for people, property, and the natural environment.

News: Conservation Commission Balks at Approving Kohl Condo Proposal at
March 12 Hearing; Kohl Interested in Withdrawing Application

In a session that ran over two hours last night [March 12], Northampton’s
Conservation Commission found itself unable to advance a proposal by
Kohl Construction to build 23 condo units off North Street. Four
members were eligible to vote on the proposal: Chair Kevin Lake, Susan
Carbin, Paul Wetzel and Downey Meyer.

Lake and Carbin expressed
that they were fundamentally willing to approve the proposal, although
Lake still had concerns about the number of units. Wetzel and Meyer,
however, said they were inclined to reject the proposal. Wetzel in
particular was concerned about units 1-10…that the ground was relatively low in that area
and the water table high. He was also concerned that the underground
stormwater mitigation equipment there might interact hydrologically
with the wetland/buffer zone system.

Meyer was unable to find
that the proposal, taken as a whole, would improve the buffer zone
around the wetland. He believes this is what Northampton’s Wetlands
Ordinance requires from this proposal, which would involve disturbance
closer than 50 feet from the wetland. The high intensity of development
throughout the wetland buffer zone was a factor in his thinking–there
was not much open space left available to make improvements. Meyer
expressed particular concern about unit 21, which is especially close
to the wetland.

Video: Kohl Presents Revised Proposal to Conservation Commission on February 26

Conservation Commission Meeting of 1/22/09; Non-Compliance with
Wetlands Protection Agreements; Kohl Asked to Revise Condo Proposal

Gazette Reports on January 22 Kohl Condo Hearings; Pictures of the Latest Proposal; Conservation Staff Report; HYLA Critique

Kohl Submits Revised Proposal Ahead of January 22 Hearings; Modest Concessions to Conservation Commission

Video of December 11 Kohl Condo Hearing at Conservation Commission; Hearing Continued to January 8

Kohl Construction Applies for Special Permit and Site Plan Review

Hyla Report: Northampton Wetlands Buffers at Narrow End of Massachusetts Spectrum

Just Released: Planner’s Guide to Wetland Buffers for Local Governments

City Council Enacts New Wetlands Ordinance, Including 10-Foot Buffers
…our in-town buffers are more important than average when it comes to flood mitigation and water pollution. A disproportionate percentage
of the people and property of the city are found in the areas now
subject to 10-foot wetlands buffers. Our drainage systems there are
already under stress. Flood damage reports from Tropical Storm Floyd show clusters of red flags in our urban areas, even under the previous, more restrictive buffer zone regime.

also stands to reason that stormwater runoff, with its chemicals, oils,
sand, silt, and other contaminants, is a more serious issue in our more
urban areas, with their large concentrations of human activity, cars
and impervious surfaces. Narrow wetlands buffers will enable that
pollution to enter our streams and rivers more quickly, with less
processing, and in higher volumes. This runs contrary to the spirit of
the Connecticut River Strategic Plan
(2003), which “proposes the removal of impervious surfaces within 50
feet of streams…” As former Councilor Alex Ghiselin observed during
the public comment period, cleaning up the Connecticut River has been
one of the region’s signal achievements during the past generation.
It’s a shame to imperil this work.

When illustrating how the new
ordinance might be applied, Bruce Young dwelt on the hypothetical
example of a homeowner who wants to build an accessory apartment on
their property, and how relaxed buffer zone requirements could
facilitate that. While this came across as innocuous and benign, there
was no discussion of the cumulative impact of many landowners
encroaching on wetlands. It’s easy to see how the Conservation
Commission, by giving away our flood protection piecemeal over time,
could materially impact the city’s experience during the next major

Is the Proposed Wetlands Ordinance Similar to Current Buffer Zone Policy? Judge for Yourself
people appear to be consoling themselves that an increased amount of
artificial or replacement wetlands will balance the harm from the
stepped-up level of encroachment. Unfortunately, the failure rate for
these mitigation schemes is high. See these pictures of mostly dead, polluted detention ponds
from South Carolina, or just walk over to the detention ponds at
Northampton High School (problems with silt build-up, water overflows
into Mill River) and Carlon Drive (vegetation dead).

The Wetlands Policy Lawsuit that City Officials Are Afraid Of
We can
accept that Northampton should have its key wetlands policies specified
by ordinance. However, we disagree that the city needs to lock itself
into a buffer zone policy that’s about as weak as any we can find in the state, and at variance with Northampton’s Flood Mitigation Plan of 2004 and its Open Space Plan of 2005. A more balanced ordinance will better serve the long-term interests of the people. Springfield, for example, calls for a 50-foot no-touch buffer zone around wetlands.

Gazette guest column: “Don’t ease controls on wetlands” (10/25/07, emphasis added)
…Northampton has adopted changes
to its bylaws that limit the setback between development and wetlands
in the business district to 10 feet, although it is obvious that 10
feet is not even enough space to accommodate the big yellow machines
that do the building. It is true that a recent court decision indicates
that wetlands ordinances (or conservation commission regulations
adopted under them) should enumerate setbacks so that builders need not
guess what will be required of them. Unfortunately, there is
also case law stating that whatever is so established limits the
commission’s discretion to ask for more unless there is a specific
showing of why one proposal stands out from the others. If the setback
in the ordinance is 10 feet, it will be very hard for the commission to
justify a permit restricting building for 50 feet.
For this reason, most eastern Massachusetts bylaws that contain setbacks start at 25 to 50 feet.

Hyla Ecological Services Analyzes the Proposed Wetlands Ordinance
of less than 50 feet in width are generally ineffective in protecting
wetlands. Buffers larger than 50 feet are necessary to protect wetlands
from an influx of sediment and nutrients, to protect wetlands from
direct human disturbance, to protect sensitive wildlife species from
adverse impacts, and to protect wetlands from the adverse effects of
changes in quantity of water entering the wetland… (Castelle et al.,
‘Wetland Buffers: Use and Effectiveness’, 1992)

Flood and Natural Hazard Mitigation Plan: Wetlands Buffers of 100 Feet
Are an Effective Flood Mitigation Strategy and Should Be Consistently

Connecticut River Watershed Action Plan: Remove impervious surfaces within 50 feet of streams

Alex Ghiselin, Letter to Gazette: “Don’t let development encroach on our wetlands”