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On Tuesday May 15, the Town Board holds a Public Hearing on proposals to change the Growth Management Ordinance regarding how big and how densely packed new buildings may be.

This effort to reduce density has dragged on for more than 9 months. Slow as the process has been, there’s a fast one being pitched right now: one Planning Board proposal before the Town Board right now could actually allow more density, not less, in the MU1 district which makes up much of Oriental’s Old Village. That would seem to run counter to what the town set out to do when this process began.

(For those just joining our program in progress….... the idea of making the GMO regulations tougher was prompted by a flurry of permits granted for condo construction in the past two years. To put it plainly, folks here didn’t want to see the town overrun by densely packed buildings. That multi-unit construction was enabled by the GMO — Article Eleven, Section 182 to be specific — and its “5,000/3,000” rule. This called for 5,000 square feet of land for the first unit, and only 3,000 for the subsequent units in Oriental’s R3, MU and MU1 districts. By comparison, you’d need 5,000 square feet for each single family house built. So last summer work began on finetuning the requirements , namely, by requiring more land than that 5,000/3,000.

That original idea of tweaking the formula was soon followed by other proposals aimed at the ‘dimensions” of the buildings, making them less bulky by way of greater setbacks, smaller footprints. Working hand in hand with the “density” formula changes, these too had merit. Proposals went before the town board last fall.

Then, in response to clamor from the real estate/development sector, which generally speaking, didn’t want the rules tightened, the Town Board set up a so-called Stakeholders Advisory Group to come up with proposed changes. Two of the biggest land holders in the MU1 district were appointed to the six member SAG. (It should be noted that at the same time no one on the SAG lived in the MU1 or R2 districts which make up the Old Village, the part of town that has the most to lose if too-densely built structures come in to being.) The SAG issued two sets of recommendations in January. The weaker of the two, in terms of tightening standards, was sent up by five of the SAG members. The sixth member, George Smith said it didn’t do enough to prevent ‘too big buildings on too small lots” and he wrote up a SAG Minority report.

This winter and spring, the Planning Board mulled it over, and largely went along with the SAG Majority report, while throwing in a detail or two of its own.

For the most part, what’s proposed could reduce density. However some proposals fall short and one or two of them could actually give us greater density in the MU and MU1 than we had before this all started.

You may have read that the Planning Board recommends a 5,000/4,000 formula for residential development in the MU and MU1. Sounds good, doesn’t it? After all, it’s an improvement over the 5000/3000 that had been in place a year ago and which allowed almost 14 units per acre. 5000/4000 works out to about 11 units per acre, a good thing for reducing residential development density in the MU1.

It would also make sense to use that same formula for the commercial development in the MU and MU1. The town currently requires 8,000 square feet of land for a commercial unit. Some suggest that that has discouraged commercial development — especially when, by comparison, the 5,000/3,000 rule allowed one to build two condos on the same 8,000 square feet. So, fine, let’s make it the same for either. If we want to “encourage business” — an expression one heard bandied about often this winter, but rarely heard defined —- apply the same land requirement of 5,000/4,000 regardless of whether it’s commercial or residential.

But that’s not what happened. The SAG Majority — with two of the biggest land holders in the MU1 district — recommended an unnecessarily complicated plan that could actually increase density in the Old Village MU1 and in the MU. And the Planning Board has gone even a step further. In the MU1, both the SAG and the Planning Board have turned the idea of reducing density right on its head.

Here’s how:

We start with the Planning Board’s recommended Table 182-B — Non-residential/Residential, Mixed Use Density.

This would apply to new buildings where, within the same structure, there is a place to live (residential) and a place for a store or other business (non-residential). According to the proposal, “there shall be no density requirements for the commercial portion of the building as long as the building and its use(s) comply with all the GMO regulations.” So, on a 9,000 square foot lot, there could be two condos in accordance with the residential 5000/4000 rule and there could be one or two — or three or why not, even four — commercial units.

The Planning Board’s Table 182-B-1 Non-residential/residential Ratios For Mixed Use Buildings stipulates how a developer might take advantage of this in the MU and MU1. On a lot of 21,780 square feet or less (a half acre) at least 30% of the building would have to be non-residential. On a lot of greater than a half acre, at least 20% of the building would have to be non-residential.

Question. Who among us is going to keep score of these extra units? These percentages — and the idea of having them — seem naive. Will there be Percentage Of Usage Police?

Wouldn’t it be easier to just say, “In the MU1 and MU, the rule is 5,000/4,000. If you build a unit, you can use as many floors of it as you want for business (so long as you have the necessary parking spaces) and you can convert it back to residential — or completely commercial — when you want”. Wouldn’t that be cleaner and clearer for everyone -developers and nearby neighbors — to understand?

Instead, the Planning Board’s Table 182-B proposal just opens itself to uncertainty and potential abuse down the road. For instance, when a building owner finds that no one will rent the store space of those “extra” units, and he tries to convert them to residential, will the town hold firm and say, sorry, there are already two residential units on that 9,000 square foot lot and that’s the limit? Or will the building owner be able to lobby that empty storefronts are bad, bad, bad for town, and be able to convert them to additional condos? If you set up a way to work around the system, it will be done….

Then again, a developer may not have to even bother with that when he can game the system right from the start.
Enter: Table 182- B Section 6, as proposed by the Planning Board.

It reads: “In MU-1 on any lot under nine thousand (9,000) square feet a multi-use building has no density requirements for commercial or residential uses.”

It’s the “Density, Schmensity” loophole. Never mind the old 5,000/3,000. This is saying the land requirement would be 0000/0000. For anything in the MU1.

Think about this. If you have a 9,001 square foot lot, the town tells you you can put in two condo units as you play by the rules of the 5,000/4,000 formula. But if you have 8,999 square feet of land, there’s no minimum land requirement and you put in more units than you could if you had one more square foot of land. You can put in three. Or four. Or if they’re really small condo units, why not a half dozen? As George Smith noted recently, this creates the prospect of a 5,000/666 formula.

Which, you’ll note, is a whole lot more dense than we started out with last year.

Proponents of these needlessly complex formulations say they’re needed to “encourage business.” Is it too much to ask that someone please, define what that means before we base a policy on such a premise? Right now it rings as a false one. This ‘no density requirements’ approach will not necessarily encourage business, except maybe the business of residential real estate development. It could encourage many more condos to be built on a much smaller parcel of land than was allowable before all this review of the density policy began. If not the ulterior motive, then this will be at least the unintended consequence.

There is a way to encourage business and fairness in the building process. Apply an across the board 5,000/4,000 formula for any construction in the MU1 along with whatever other changes on dimension — setbacks, footprints, maximum building size — are being proposed. We need both approaches. We need that clear 5000/4000 requirement because as you will see, some of those other regulations may have poison pills in them as well, (about which more in a moment.)

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That’s the big thing to watch for — and speak out about — if you care about getting a handle on density in town, especially in the Old Village waterfront area that is zoned MU1.

It should be said that there the Planning Board’s Article Eleven recommendations do have some commendable proposals. There’s a suggestion to scale back the height limit to 43-and-a-half-feet above sea level, period. That would take away the clause that the Town Board attached a year ago that allows builders to go up to 48-and-a-half-feet ASL if they increase the setbacks of their building. The Planning Board suggestion makes sense and should be encouraged.

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The Planning Board also follows the SAG’s lead and calls for a maximum building footprint of 8,000 square feet. Oriental has not had a maximum building footprint before. Having a maximum building footprint (the area covered by the ground floor) makes sense if we are to get a handle on overly big buildings. The trick is finding the right number. SAG minority report member George Smith suggests that 8,000 square feet isn’t small enough. He notes that that is the footprint of the smaller condo building at Oriental Harbor Place is about 7500 square feet. And that the Schoolhouse Condos are approximately 5,000. He suggests a maximum building size of 6,000 square feet.

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Also on the table are suggestions for smaller percentages for the footprints — a max of 35% in the R2 and R3 and 35-40% in the MU and MU1. And no more than 50% of the lot may be covered in impervious surface, which is a start at the looming challenge of stormwater runoff.

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The Planning Board also proposes somewhat greater setbacks, that is requiring more room between buildings. The setbacks would remain the same as they are now for buildings with an eave height of 25 feet. Eaves above 25 feet, would trigger slightly greater setbacks: 20 feet from the street (an increase of 5 feet) and on the sides 10 feet, (representing an increase of 3 feet.) George Smith says that doesn’t do enough to reduce the bulkiness of buidings and is recommending more.

Yet another approach to setbacks was put forward by one member of the Town Board a few months ago. Imagine a triangle rising from a horizonal line, and having to put your new construction within the confines of that area. Commissioner Barbara Venturi ‘s idea would present a sliding scale of setbacks linked to height. It deserves another look.

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While the setbacks may get more restrictive, there’s also a proposal afoot to allow widespread exceptions which would make the new regs moot. As written, the Planning Board’s (Article XI, Section 184 1-C would grant exceptions in the setbacks “where such reductions will improve harmony with the nearest existing buildings.” Which is to say, a builder could note to the town that nearby buildings are closer to the street than the regulations now require, and as such he can ask for an exception to the same rule.

When this came up at the SAG’s very first meeting, it was touted as a way to let buildings line up in a row on a street and be symetrical. But… isn’t it asymetry that makes a street scape in Oriental interesting?

The thing is, it’s not just about the view down the street. The Planning Board recommendation also would allow exceptions to the setback rules for the side lot lines. Essentially, this makes a mosh of efforts to reduce setbacks. It’s silly. And if a person wants an exception, there’s already a procedure: they can go to the Board of Variance. Codifying it in the regs only invites a slack regulation.

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This policy on land use can make many an eye glaze over. But if you care about what Oriental looks like, especially in the waterfront and Old Village that are zoned MU1, you may want to speak out now while you can keep this sleight of hand from happening. The process to bring a reduction in density has been slow and we now risk having a fast one spun by us. Now, more than ever is time to keep the eye on the ball and call a bad pitch for what it is.

Click here to download the Planning Board’s recommendations.

Posted Sunday May 13, 2007 by Melinda Penkava

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