Though consideration of a requirement for forested buffers for new major subdivisions in the county has reached the public hearing stage, county council members appear to still be divided on a major element of the buffer requirement: Should it apply to all major subdivisions — those with four lots or more — or only those that are to be built next to property that is zoned for agriculture?
The original intent of the proposed ordinance at its introduction may have been to protect agricultural uses from new residential neighbors who might have problems with the dust and other aspects of farming in open fields, but the debate has since moved on to whether forested or landscaped buffers should be required to protect the views of the traveling public and whether such a requirement should be applied evenly to all future major subdivisions.
“My thoughts were we ought to treat everyone equally, as opposed to the first guy getting hit with a 30-foot buffer and the guy after him doesn’t,” said Councilman George Cole during consideration of the ordinance on Dec. 4. “It would benefit the community in the long run.”
It was Cole who had suggested early in the discussion of the proposed ordinance that it would be unfair to ask only developers facing existing agricultural zoning at their boundaries to put in a 30-foot forested buffer along the perimeter when subsequent development on adjacent parcels would likely not have to deal with the requirement thanks to then-preexisting residential use of the first developer’s property.
The county Planning & Zoning Commission has since reviewed the draft ordinance and voted unanimously on Nov. 29 to recommend the council adopt it. But the council itself was divided Tuesday, as quickly became apparent in discussion of the ordinance.
“I think we’re doing an overkill,” said Council President Dale Dukes, citing the original intent of the ordinance to deal with complaints by residents about the dust generated by agricultural uses and what he perceives as impracticality in potentially requiring buffers along state highways. “All of a sudden you’re putting a buffer between everything you don’t want to see. I don’t want to see my neighbor’s house, and in the future you could do that (require a buffer). It’s an overkill, gentlemen. It’s ridiculous.”
The result of the modified ordinance could eventually be two neighboring residential developments with a 60-foot-wide forested buffer between them. That’s not a notion that Cole found objectionable, citing the potential to create safe pathways for wildlife to traverse through development, though his focus was on the fairness of the ordinance as it would be applied to all future residential development.
“There is some concern that we should protect Level 4 areas,” Cole said, referencing existing low-density areas of the state that state officials have mandated receive no assistance for infrastructure costs lest those improvements encourage further development. Much of the county’s Level 4 areas are also environmentally sensitive, though much of the land is also designated as part of the county’s Environmentally Sensitive Developing Areas (ESDA) which tip their hat to ongoing development pressure along picturesque areas of streams, canals and wetlands near the popular coastal towns.
Protecting viewshed along boundaries debated
Dukes, however, asserted that the proposed ordinance needs to be tweaked – first, to eliminate the requirement for buffers along highways. “I don’t think a 30-foot buffer is necessary along the road,” he said. Other recommended tweaks include eliminating the buffer requirement for areas where existing vistas on neighboring property could be considered pleasant by future residents, such as a golf course or pond.
“If there’s a pond or lake on the back side of a subdivision, I’d much rather see that lake or pond than 60 feet of trees,” Dukes said.
It was a point Cole didn’t inherently object to. “You’re talking about the neighboring subdivision being able to look on that pond. … Amenities that are designed to be attractive should be exempted,” he agreed, while emphasizing that the county Planning & Zoning Commission has the ability to waive a buffer requirement in such cases even if an ordinance requires buffers or allows them to be required.
It was also a point that garnered agreement from developer Pret Dyer of Ocean View. “It’s very presumptuous to say that one degree of buffer is better than another,” Dyer told the council on Tuesday.
Dyer’s objections to the wider application of the buffer requirement netted some questions from Councilman Vance Phillips.
“Is the desire to see development shielded from the public viewshed misguided?” he asked Dyer, questioning whether Dyer felt the county might be well served to shield residential development from the traveling public along roadways.
“It doesn’t do that at all,” Dyer argued of the proposed ordinance, pointing to his own Pemberton development along Route 30 as an example. “You’re going to tell me what landscaping I need to put there to market this project. I happen to think that I have a very nice plan, with a nice fence and stone pillars.” While the ordinance wouldn’t apply to Pemberton, since it has already been approved, it could apply to a similar development in the future.
Dyer said he considered a proposed requirement for 70 percent deciduous trees and 30 percent evergreens in the forested buffers to be another example of the ordinance taking too much control away from the property owner, suggesting some might prefer a higher ratio of evergreen trees to ensure more screening during winter months.
Indeed, that idea had already been raised by former state forester and current state planning official Brian Hall, who had recommended a brief laundry list of changes to the council in an e-mail on the proposed ordinance. Hall had recommended a 60/40 ratio of deciduous to evergreen trees, as well as compliance with planting standards and lists of non-invasive tree species.
Hall also said developers using existing trees in a required buffer should develop a tree preservation plan tied to the bonding of project, wherein if trees failed to thrive within 18 months bond money might be used for removal and maintenance. He further recommended the county not require the use of wood-chip mulch for an entire buffer, citing resulting long-term problems with soil and the failure of plants.
Also recommended by Hall was the addition of certified arborists and licenses foresters to a list of qualified persons (beyond a certified landscape architect) who could certify a planting plan or that an existing stand of forest would make an appropriate buffer under the ordinance. Council members favored the idea as one that could also potentially save developers money.
But division remained on the scope of the ordinance, with Cole supporting broader implementation while other council members favored a more limited application.
“As proposed, this applies to every boundary of any subdivision of four lots or more,” Dukes emphasized, also noting that the draft ordinance would apply to properties neighboring on water and wastewater facilities, including open fields used for spray irrigation, and to recreational amenities.
Planning Department head Lawrence Lank noted that the ordinance does allow for areas along the fronts of developments to be landscaped instead of forested, while also allowing exemptions for entryways not to be forested. He said the council could also choose to exempt areas along public rights-of-way, such as roads.
Councilman Lynn Rogers pointed out the potential for unintended consequences if the ordinance continues to refer to a requirement for buffers along every boundary, suggesting that it should refer to the “perimeter boundary” instead. Councilman Finley Jones agreed. Rogers also recommended a change to eliminate a restriction on walking paths through buffer areas, as well as to requirements for buffering along road frontage.
The subject of walking paths raised another issue for Dukes. “People tend to trespass onto adjoining properties,” he noted, questioning how buffers might blur property lines between neighboring residential developments if both properties were required to have adjacent 30-foot forested buffers.
Jones also said he questioned the 18 month period after which buffers would be required to be installed. “I don’t know if 18 months is good. The developer could sell no lots and still be required to put in a buffer,” he said.
County Solicitor James D. Griffin noted that the 18 month period had been recommended as part of the bonding requirement of the ordinance. “We were concerned some developer would wait and not do it and then tell the home owners association they had to do it,” he explained.
Developers, consultants oppose larger target
As was the case with Dyer, concern about the expansion of the ordinance on Tuesday came from those who work in development.
Ken Christianberry of Axom Engineering questioned whether the ordinance would apply only to agriculturally zoned lands or to those with other types of zoning where the land might still be in agricultural use. He said the zoning should be the key.
“Is buffering GR (General Residential) from GR appropriate?” Christianberry asked. “You’re going to burden the people who own that GR property who may want to someday divide it themselves,” he said.
To Cole’s concept of protecting Level 4 areas, Christianberry said, “You should treat it in regards to the county’s intent, not the state’s.”
Christianberry also said he opposed requiring a professional to verify existing stands of trees to be used as buffers. “My clients shouldn’t have to have to pay someone to verify the trees,” he said. Griffin noted that the intent of that requirement had been to ensure that the existing stands of trees would be suitable for the intention of the ordinance.
“Ninety-nine times out of 100, if there’s an existing stand of forest, it’s going to be appropriate,” Christianberry replied.
Still, Griffin said the county would need to have someone tell it that what trees are there are suitable.
Engineering and land development consultant Kevin McBride also objected to expansion of the ordinance, suggesting that the council might consider exempting road frontage or make allowances for some subdivisions and for neighboring properties with certain types of agricultural uses.
To Cole’s suggestions about the side-effect of creating wildlife corridors, McBride said, “I’m hearing the environmental concerns. But you should have wildlife corridors where they’re appropriate. If you take away from the perimeter, it would take away a greater amount of usable land. I have no problem with 20 trees per 100 feet,” he added, contrasting that notion with a straight 30-foot buffer.
“I bet you they don’t lose a thing in their density,” Cole later responded.
“I don’t know that open space should be in there,” McBride said of uses such as spray irrigation while allowing that areas of active recreation should be buffered. “There’s no use for hundreds of yards plus that golf course,” he added. “Why buffer a forested spray area, as opposed to the treatment facility itself?”
Protecting agriculture or views?
Dyer asked the council on Tuesday to return to the original intention in drafting the ordinance. “I thought it dealt only with the agricultural portion,” he said. “What is the purpose of the ordinance? The original ordinance’s intent was to protect agricultural use.”
On that Dukes agreed, “We already have that ordinance. It’s an overkill,” he reiterated.
But Cole disagreed as to the intention of the ordinance. “We’re trying to make the county look better,” he said.
Griffin also noted that the ordinance was, in part, a response to cases in which some buffer areas had been destroyed.
“Why are we taking a buffer intended for agricultural use and applying it to everything?” Dyer responded. “It’s appropriate when there’s an agricultural use next to a development. If you’re taking this ordinance and applying it to everything… Why? Mr. Cole, you already have setback requirements. If the problem is with the Marsh Farm, it’s because of agricultural use.”
Cole countered that the county had needed to clarify buffer definitions because of the Marsh Farm case and others. But Dyer argued that such clarification should be done as part of the county’s existing ordinances.
“Go back to the cluster ordinance,” he advised. “If you want to deal with this correctly, then go back to Ordinance 9960 and deal with ag lands. A blanket ordinance is overkill and it’s very damaging.”
Continuing his question of Dyer on the subject of buffers for developments along roadways, such as Pemberton, Phillips asked, “Is it reasonable for this body to screen developments that don’t have that kind of landscaping?”
“I don’t think that’s a problem,” Dyer said, suggesting instead that the problem was with the variation between different types of developments. “A cluster is different from a straight subdivision. You need to go back to each individual process and put in that process what you want to achieve. If you want a vista along the front for a subdivision, do it. If you want a vista along the front for a cluster, do that. If you want to protect the road view, then do it with each individual application specifically. One size does not fit all.”
Council members asked several of those testifying during the public hearing Dec. 4 to submit their comments in writing, and thus decided to leave the record of the hearing open for an additional 30 days, to allow for them — and any other interested parties — to weigh in on the debate over the ordinance and how widely it should be applied.
The council voted unanimously on that basis to defer a decision on whether to adopt the draft ordinance on Tuesday. The council also tabled discussion of a revised sign ordinance and their executive session until next week.