defusing landowner/conservation conflicts · conservation plan • proportionate to harm •...

Defusing Landowner/Conservation Conflicts:

Protecting Habitat for Endangered Species and Other Wildlife

with Conservation Design

MACC Annual Environmental Conference

March 2, 2013

E. Heidi Ricci Senior Policy Analyst

Mass Audubon

Eve N. Schluter Endangered Species Review Biologist

Mass Natural Heritage and Endangered Species Program

Helping communities understand, adopt and implement tools and techniques for smart

growth and sustainable development

Shaping the Future of Your Community Outreach and Assistance Program

www.massaudubon.org/shapingthefuture

Development and Conservation can occur at the same time

– if your community’s bylaws allow it!

Open Space Design provides flexibility that reduces conflicts

between landowner development interests and protection of natural

resources such as rare species habitat, wetlands and waterways,

and forests and farmlands.

Losing Ground: Beyond the footprint

April 13, 2009

Land Use Change

Kathy Sferra ©

Bigger Houses on Bigger Lots = More Sprawl

• 47,000 acres of natural land was developed between 1999-2005 • 87% of the land lost was due to residential development

Costs of Sprawl

Infrastructure maintenance:

Community and quality of life issues

Water quality and recharge Loss of forests and farmlands

Long commutes, shopping trips Energy intensive

- Pavement maintenance - Stormwater

Residential Development & Habitat Loss

Will the Expanding Cycle of Sprawl Repeat Again?

− Boards Must Issue Permits if a Project Meets Minimum Requirements

“You get what you zone for”

– Master Plans

– Open Space Plans

– Zoning Maps and Regulations

Three Main Planning Tools in a Community:

Open Space Planning

Focus land conservation on areas most critical for long-term persistence of rare and other native species, exemplary natural communities and a diversity of ecosystems Align local plans and zoning Look beyond parcel and municipal boundaries

Protect the biodiversity of MA in the context of projected effects of climate change.

Prioritize Protection: Important habitat and Green Infrastructure Prioritize Development: Concentrate near infrastructure and away from important natural resources

Charting a More Sustainable Approach

Regional Plans – Toolkit for Implementing • Priority Protection Areas • Priority Development Areas www.massaudubon.org/495Toolkit

Protect important land and water resources through zoning and regulations

- Don’t have to buy all the open space that needs protection - Provides landowner with more flexibility - Attractive and marketable results

Charting a More Sustainable Approach

Traditional “Cookie-cutter” Subdivision Design

Driven by dimensional requirements e.g. minimum lot size, frontage, setbacks Result is geometric configuration of lots irrespective of natural features and consuming nearly entire property

1. Identify Conservation Value Areas . Remove these from the “developable area”.

2. Place houses in the remaining area in a way that would maximize residents enjoyment of these areas by providing access to open space and preserving views.

3. Align roads and trails on the site to provide pedestrian and vehicle access.

4. Draw lot lines around the homes.

• Decreasing the necessity for

and cost of installing and

maintaining conventional

infrastructure

• Decreases site development

costs by designing with the

terrain

• Higher property values

resulting from the increased site

amenities including open space,

views, and preservation of

historic resources

Open Space Design Saves $$ - while enabling both development and conservation to work in harmony

Massachusetts Division of Fisheries & Wildlife

A Division of the Department of Fish and Game in the Executive Office of Energy and Environmental Affairs

Natural Heritage & Endangered Species

Program

• Established in 1978 - Part of the Massachusetts Division of Fisheries & Wildlife since 1983

• Protection of the state’s native biological diversity

• Highest priority: state-listed rare species

Rare Species

• 176 animals

• 256 plants

Species officially listed as:

• Endangered

• Threatened

• Special Concern

Massachusetts Natural Heritage &

Endangered Species Program (NHESP)

Bridle Shiner - SC

©Karsten Hartel Purple Milkweed - E

• Plan and select land for protection by the Division of Fisheries & Wildlife

• Advise Conservation Partners, Towns, etc.

NHESP Conservation Tools: Land Protection

• Prescribed burning of fire-adapted habitats • Invasive exotic plant removal

Kampoosa Bog ACEC, Stockbridge

Removing invasive

exotic plants from

rare limestone

wetland

NHESP Conservation Tools: Habitat Management & Ecological

Restoration

NHESP Conservation Tools: Education

• Track current and historical observations of state-listed species, and watch-list species

• Maintain information on natural communities • Maintain information on certified vernal pools • Database contains thousands of

geographically-referenced records

NHESP Conservation Tools: Data Management & Analysis

American Bittern – E (1990)

Certified Vernal Pool (1996)

Blue-spotted Salamander – SC (2006)

Mystic Valley Amphipod – Delisted (1997)

Certified Vernal Pool (1996)

Example of information contained in NHESP database

NHESP Data Submittal Forms

Online Vernal Pool/Rare Species Information System (VPRS)

Set up User Profile Establish Electronic Signature Online mapping tools Manage and submit reports to NHESP Direct communication between User and NHESP

Mobile Application

• Allows basic information to be captured while in the field • Android application

• Review of proposed projects and activities for impacts to rare species under:

• MA Endangered Species Act (MESA) • MA Wetlands Protection Act (WPA) • MA Environmental Policy Act (MEPA) • MA Forest Cutting Practices Regulations

NHESP Conservation Tools: Regulatory Review

M.G.L. c. 131A. The MA Endangered Species Act (MESA) &

321 CMR 10.00 MESA Regulations

• Prohibits “take”- “ means to …harm, … kill,…disrupt the nesting, breeding, feeding or migratory activity …. Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat .”

• Defines Priority Habitat

• Outlines “Priority Habitat” Delineation Process

How do we delineate Priority Habitat? Example: Marbled Salamander (Ambystoma opacum) - T

© Bill Byrne • Observation • Review by Biologist • Acceptance into Database • Map extent of possible habitat • Refine mapping

• quality • exclude development

Priority Habitat

(PH) is the known geographical extent of habitat for all state-listed rare species, both plants and animals, and is codified under MESA

Estimated Habitat (EH) is a sub-set of Priority Habitat; based on the geographical extent of habitat of state-listed rare wetlands wildlife (no plants); codified under the Wetlands Protection Act

Review of Estimated & Priority Habitats

How do I know if my property/project is in Estimated and/or Priority Habitat?

• Priority & Estimated Habitat maps available: • NHESP Atlas, CD, online viewer, MassGIS • Local Conservation Commission (EH)

www.nhesp.org

• Responsibility of the land owner / project proponent to determine if within EH and/or PH

What does it mean if my property is in Estimated and/or Priority Habitat?

• Unless otherwise exempt, Projects or Activities need to be reviewed by NHESP pursuant to MESA (and WPA)

Eastern Spadefoot Toad -T

NHESP Project Review

Project or Activity Species and Habitat

NHESP Determination

Blanding’s Turtle - T

• No Take (~78.2%) • Take avoided with conditions (~18.2%) • Take (~3.6%)

• Consult with NHESP staff to: – Redesign project to avoid Take – Redesign project to meet Conservation &

Management Permit (CMP) standards

New England Blazing Star- SC

NHESP Responses under MESA (FY12)

• Assessment of alternatives to minimize impacts • Project will impact an insignificant portion of the local

population • Applicant agrees to carry out a Conservation &

Management Plan than provides a long-term net-benefit to impacted species.

If project = “Take” of state-listed species

Can project meet standards for Conservation & Management Permit?

321 CMR 10.23 Marbled Salamander -T

Net-benefit Conservation Plan

• Proportionate to harm • Long-term net benefit to the conservation

of the impacted species may include: – On and/or off-site conservation restrictions to

permanently protect rare species habitat – On and/or off-site habitat restoration /

management – Scientific research designed to enhance

conservation efforts to protect rare species

“Better off”

Melsheimer’s Sack Bearer Cincinnus melsheimeri

Threatened

• Proposed commercial development on an approximately 92 acre parcel

• Within mapped Estimated & Priority Habitat for the Wood Turtle and the Eastern Box Turtle

Photo by Mike Jones

Wood Turtle Glyptemys insculpta

Special Concern

Photo by Liz Willey

Eastern Box Turtle Terrapene carolina Special Concern

Example Project

NHESP required habitat assessment

Good Habitat!

Original Proposal

• Proposal to develop approximately 60% of site (all of upland areas)

• Work within 200’ Riverfront area and 100’ Buffer Zone

• No work within Riverfront Area & Buffer Zone

• Total “disturbance” = ~27 acres (30% of site); building envelopes

• Remaining area in a CR= ~ 65 acres

• Long-term management of ~ 10 acres of early successional fields; oversight by qualified biologist

Final Plan / Outcome

Saving Land and Money Through

Innovative Zoning: An Introduction to the State’s the New Open Space Design

/ Natural Resource Protection Zoning Model Bylaw

E. Heidi Ricci Mass Audubon – Shaping the Future of Your Community Program

With appreciation and credit to Kurt Gaertner Massachusetts Executive Office of Energy and Environmental Affairs

For leadership in producing the model Open Space Bylaw and developing this presentation

47

Problems with many existing Open Space bylaws • Special Permit Required – Discretionary

• Process often cumbersome, long, & expensive

• Large parcel size requirements

• Insufficient amount of land protected

• Less than ideal land conservation

• Rigid dimensional standards

Open Space Design Best Practices New Model • By Right/Mandatory

• Formulaic and quick • No minimum lot size

• [60%] of land area protected

• Strategic protection via Conservation Analysis & Findings

• Flexible Design Standards – lot size, frontage, setbacks, roads, etc.

New Model Open Space Design Bylaw/Ordinance

• Based on Natural Resource Protection Zoning

• Accompanied by subdivision regulations & special permit regulations for density bonuses and shared driveways

• Will replace the current OSRD model in EEA’s Smart Growth/Smart Energy Toolkit

• Addresses problems with application of Cluster, OSRD, Conservation Subdivision zoning

• Formatted to be easily customized, though municipal counsel should be consulted

• Interaction with other local regulations must be considered (esp. Board of Health)

• Addresses process questions raised by the Wall Street v. Westwood decision

http://www.mass.gov/envir/smart_growth_toolkit/

http://www.apa-ma.org/resources/publications/nrb-guidebook

Subdivision Regulations – Low Impact Development

“Open Space Design” shall mean a process for the development of land that: (a) calculates the amount of development allowed up-front by formula; (b) requires a Conservation Analysis to identify the significant natural, cultural, and historic features of the land; (c) concentrates development, through design flexibility and reduced dimensional requirements, in order to preserve those features; and (d) permanently preserves at least [sixty] percent of the land in a natural, scenic or open condition or in agricultural, farming or forest use.

Model Zoning Structure: • Bracketed & highlighted text indicates a local choice

• Alternatives & guidance are provided in boxes and italicized

Alternative: [50-90%]

Fifty percent is generally accepted as the minimum for Open Space Designs and similar

zoning measures. Based on local circumstances - such as the nature of the natural

resources to be conserved and the amount/pattern of existing development -

communities should consider a range of [50-90%]. A percentage at the higher end of

the range is often warranted to protect particularly sensitive natural resources or attain

a prominent local conservation objective. The amount of open space applicants are

required to protect can be varied by zoning district, as is done for required square

footage per unit in the Unit Count Calculation section of this model zoning.

Example

Dwelling Units: Gross Project Area 100 Minus constrained land 32 Equals Net Project Area 68 Divided by required acreage (1 per 2 acres) Equals: Base # of Units 34 Preserved Land Land Area 100 Multiple by required percentage [60%] 60 Add additional land from bonuses (if any) 0 Equals: Minimum preserved land 60 acres

Yield: Allowable Residential Units • Units calculated by dividing the net acreage by the allowed density • Net acreage calculation accounts for site-specific development limitations

Practical & Political Considerations: • Equity should be a consideration for political if not legal reasons

o Yield (# of houses) under OSD vs. prior yield should be understood

o Alright to reduce yield; unreasonable to build current zoned units in some communities

o Zoning may not be the critical factor; other regulations may result in reduced yield

– OSD applied to <1 acre lots with individual lot well and septic a particular concern

Applicability: • Allowed by right – permitted via subdivision or site plan review • Conventional subdivisions require special permit

• Local choice as to which districts and which housing types • Can also be applied to non-residential development

Dimensional Requirements:

Goal: Make it as easy as possible to conserve land and natural resources by arranging units/lots in as unconstrained a manner as practicable • No required minimum lot size, but water or wastewater needs or other regulations may limit

• No numerical frontage required, rather “legally and practically adequate vehicular access”

• [10] foot setback to property lines & [20] feet between principal structures

Enforcement:

• Monumentation clearly delineating the open space required to ease enforcement

Open Space: • Permanently conserves [60%] of land area, must be contiguous to extent possible and based on Conservation Analysis • Protection under Article 97 or a permanent Conservation Restriction

• Allowable and Prohibited Uses addressed in CRs

• Ownership options: private owner (e.g. farm), conservation non-profit or state agency, conservation commission, or homeowners association (HOA)

o Unless held by the conservation commission a CR & access easement with inspection and enforcement provisions are required

• Maintenance standards included in permit; enforcement provision, including potential property tax lien

Open Space Plans should guide land conservation in subdivisions

Special Permit Provisions: Language provided for measures that can’t be readily included in by-right zoning

Density Bonuses Additional units for voluntary:

• Provision of public access to the open space;

• Construction of permanently affordable housing;

• Conservation of open space beyond that required; or

• Preservation of historic structures.

Shared Driveways

Hopkinton - Olde North Mill • Open Space & Landscape Preservation Development • 34 lots on 100 acres • 52% of the parcel protected • http://www.mass.gov/envir/smart_growth_toolkit/pages/CS-osrd-hopkinton.html

1. Conventional Plan

1. OSRD Plan

Bellingham - Woodbury Ridge

• 6 developed acres

• 10.4 protected acres

• LID stormwater practices

• Reduced impervious surfaces

Local Zoning & MESA • Often difficult to achieve best possible outcome for

rare species because of local zoning • Types of challenges:

• Large minimum lot size • Wide minimum road widths • Double sidewalks • Vertical curbing

• Tools such as OSD/OSRD can: • Reduce habitat fragmentation & maintain connectivity • Protect key habitat features

Example Project

• ~185 acre site with in Blanding’s Turtle Habitat • Habitat Requirements:

• variety of wetland & terrestrial habitats • large tracts of land (travel long distances)

• Key Threats: • habitat loss & degradation • habitat fragmentation • road mortality

Original project proposal = fragmentation of large landscape

Before

After

• Reduction of fragmentation • emergency access rd

• Land Protection • ~ 75 acres to Town • ~ 70 acres in CR

• $60K conservation funding

Note: fictitious example

Example Project

Note: fictitious example

Open space

Standard Plan - 12 houses, 30% open-space

Note: fictitious example

Good Conservation - 15 houses, 70% open-space

Open space

Note: fictitious example

Good Conservation through Habitat Protection

Mixed or Deciduous

Forest

Early

Succ.

+Shrub

Matrix

nesting

Beyond Residential • OSD principles can be applied elsewhere • Larger community planning projects • Industrial parks • Green energy projects

Example Project • ~218 acres within Blue-

spotted Salamander Habitat • Habitat Requirements:

• vernal pools • forested upland

• Key Threats: • habitat loss & degradation • habitat fragmentation • road mortality

Blue-spotted Salamander- SC

Final Plan/Outcome • ~ 56 acres of new development

• ~30 acres for solar • ~ 26 acres for future

development (use?) • Proposed net benefit:

• ~ 108 acres protected • vernal pools • ~22 acres “credit”

Outcome allows for development & also protects rare species, habitats, and other natural resources

Town-Wide Comprehensive MESA Permits for Certain Municipalities

(10.16(b))

• Joint Town / Division MESA planning and review process

• Local mitigation bank and/or pre-permitting of building envelopes within designated development areas.

Barrens Buck Moth - SC

Final Thoughts for Rare Species Conservation

• Utilize available conservation tools in concert with land protection /community planning

– Local OSD bylaws, BioMap2 maps &Town Reports

• Flexibility in project design can greatly improve the outcome for rare species & habitats

• Consult early with NHESP when designing a project in Priority/Estimated Habitat

• Submit observations (rare species & VPs)

Try VPRS!

www.nhesp.org www.massaudubon.org/shapingthefuture Sustainable Neighborhood Road Design – LID Guidebook www.apa-ma.org/resources/publications/nrb-guidebook www.mass.gov/envir/smart_growth_toolkit

For More Information

Shaping the Future of Your Community Outreach and Assistance Program

www.massaudubon.org/shapingthefuture