A May 3 public hearing before the Newcastle Planning Board about a proposal to amend the town’s land use ordinance revealed some concern among board members.
Board member Christopher Doherty voted against the amendment, while board member Mal Carey voted for it only after calling it premature and distributing a handout suggesting that it might be legally indefensible.
The hearing began with a brief presentation by Land Use Ordinance Review Committee Chairman Rob Nelson.
The amendment would make three important changes to the ordinance.
A new zone, known as District D, would be split off the rural zone.
A differential growth cap would limit growth permits in District A and the rural zone to a total of 15 per year, with a maximum of six per individual. The rest of the town would have a limit of 30 growth permits with no per-individual constraints.
Present rules limit growth permits to 25 per year throughout the entire town and restrict the number of permits available to any single company or individual.
Growth permits apply only to residential development.
The intent of the change is to give the town the flexibility to allow a large, well-planned development, Nelson said.
Last year, a company that specializes in retirement communities abandoned the idea of a large development in Newcastle after finding out it would only be able to build six units every two years.
Finally, the planning board, not the appeals board, would hear special exception applications. The planning board “is more familiar with the issues,” Nelson said.
Newcastle resident Norman Hunt questioned the boundaries of District D, which has also been referred to as a “new growth zone.”
“How do you get a growth area up on East Old County Road and West Hamlet Road?” Hunt asked. “Those are some of the narrowest roads we have in town.”
“We’re trying to encourage growth in a very mild way” in District D, said Alan Pooley, a member of the Planning Board and the Land Use Ordinance Review Committee.
The changes would “channel growth downtown and near the highway and leave the rural as it is,” Pooley said. “It doesn’t change the rules in the rural at all.”
“Are we going to change the rules in the rural next year?” Hunt asked.
“At some point, I wouldn’t be surprised if it gets revisited, but that’s not our next focus,” Nelson said. Instead, the committee intends to take a close look at the Rt. 1 corridor, with another series of public workshops to start in the fall.
Hunt also questioned the necessity of adjusting the growth cap. “Why are we trying to fix a problem that doesn’t exist?” he asked.
Nelson said it’s an effort to be proactive and to avoid “too much activity at one time.”
Newcastle’s attorney, Peter Drum, called the proposed cap a “business-friendly, development-friendly” regulation and a compromise between “no growth” and “no cap” approaches.
Carey presented his concerns as the board began its deliberations.
“I think the proposal, in some ways, is a bit premature,” Carey said.
“I think we need to take a look at what is actually developable in that proposed zone D,” Carey said. “A good deal of that land is not subject to development.”
The topography of District D includes slopes, wetlands and “a lot of ‘you can’t get there from here’ problems” that would restrict development, Carey said.
“I do agree with the general positioning of that zone being close to town and along Rt. 1 but I think a more nuanced approach is appropriate,” Carey said.
“I also don’t agree with defining the boundaries of this growth zone before finding out what are the functions that are going to be permitted within it,” Carey said.
“We have almost no industrial sites available to us in this town,” Carey said. “If the first development in this zone turned out to be residential, it could actually remove, in effect, the potential for developing some industrial facilities.”
Carey, in a handout distributed to the board and the approximately 15 residents in attendance, proposed a detailed, step-by-step re-examination of the district.
“To craft a demonstrably viable ‘Growth Zone'” would require additional work and a delay a decision for about one year, Carey wrote.
The handout also questions the defensibility of the amendment.
“Any significant change in zoning, such as the creation of a ‘Growth Zone’ needs to be fully supported by a valid Comprehensive Plan if the Town wishes to be in a sound legal position to defend its Land Use Ordinance in court,” Carey wrote.
The document states that the 2006 comprehensive plan “is invalid, can’t be updated, and needs to be replaced.”
Drum said legal opinions vary about the validity of comprehensive plans approved by a town but rejected by the state, like Newcastle’s.
Board member Sharon White acknowledged the need for a complete overhaul of the comprehensive plan and land use ordinance.
If the town waits for such an overhaul, however, “We’ll never do anything,” White said, and the preparation of the new documents might take years.
The motion to recommend the changes to the Newcastle Board of Selectmen to place on the annual town meeting warrant passed, 4-1.
“I have no objections to it going forward,” Carey said, explaining his vote. “I’ve said my piece.”
Doherty said he shares Carey’s concerns. “I think [the amendment] is premature until we do more study on it,” he said.