GROTON — The following is a slightly edited version of GOSA’s comments on Kendig Keast Collaborative’s evaluation of Groton’s land use regulations. It was submitted to the Office of Planning and Development Services in November for study by KKC along with other citizen feedback, which is to be evaluated as KKC prepares its rewrite of the rules. A shortened version of the comments was presented at KKC’s informational meeting Oct. 29, 2008.

The land-use regulation assessment report prepared by Kendig Keast Collaborative covers many areas interestingly and thought-provokingly. This contribution is limited to feedback on Open Space.

There are two basic kinds of Open Space. One kind — the one KKC focuses on — is preserved and protected by conservation easement within the boundaries of a development.

The other kind, which is given short shrift in the report, is Open Space that is permanently preserved in its undeveloped state by government or land trust.

We deal first with the first kind — Open Space that’s included within a development, and our remarks are questions rather than statements.

Question 1: How will the concepts of resource protection levels and differentiated Open Space ratios work out in practice? These ideas are new to Groton and have been only partially explained by KKC. The KKC material presented is written simply and clearly, and it functions as a good introduction to these concepts. However, the real complexities lie in their application. The public and the land-use boards would benefit from more detailed information about how these quantified tools would work in our real world. More concrete examples would help. How about showing these concepts in action on 100 acres of forested land, half of it steeply sloped or consisting of wetlands, the kind we have here in Groton? Apply it to different kinds of zones, and spell it out step by step.

As KKC is aware, the town’s 2002 Plan of Conservation and Development urged the formulation and application of a buildable land concept and a density regulation. It would be a big aid to understanding if KKC could compare and contrast the POCD approach with its own.

A related thought: the search for numbers-based decision-making on land-use bodies runs the risk of depriving land-use boards of their discretion. Unlike computers, human beings have common sense, and they must be given latitude to use it. We must not sacrifice human judgment in order to improve “certainty of outcome” for applicants who want to develop land. It is, for example, common sense to question whether the town should allow construction of a Wal-Mart Super Center near a major drinking water reservoir, despite attempts to restrict the discussion to technicalities. It is common sense to question whether a 240-unit condo development fits in with a Fort Hill neighborhood of single-family houses on ample lots.

The zoning power of communities was not created for the convenience of developers but for the good of the community as a whole. Cranking out land-use decisions by computer, an idea that came up in KKC’s session with the Zoning Commission, would seem to eliminate thought and personal responsibility from the process.

Question 2: Will the resource protection levels and differentiated Open Space concepts hold up to challenge in Connecticut courts? If, as KKC says, calling certain land unbuildable amounts to a taking, why isn’t it a taking to declare forest lands in certain zones to be 90% unbuildable? What is to prevent a landowner from cutting down his forests to avoid this restriction?

Question 3. Who appoints and pays the people who conduct specific site surveys to determine resource protection levels? Obviously, if this task were left to direct agents of owners and developers, conflicts of interest would be built into the process. If we are to have site surveys, then the experts who carry out the surveys should be paid by the town, even if the money ultimately comes from those who want to develop the land. The experts should be answerable to the land-use commissions.

Question 4. You suggest that Open Space provisions should be less strict in MX floating zones than elsewhere. Are you aware that the MX zone originally was proposed for some 1,200 acres in the business park? This proposal ultimately was withdrawn, but it can be expected to return. The business park contains much of Groton’s most beautiful landscape. While we could understand reducing open space requirements in heavily developed existing MX nodes, this idea should not be extended to MX nodes yet to be designated.

Question 5. Who would hold easements on Open Space within the cluster developments that KKC foresees? Our suggestion would be that these easements should be placed in the hands of land trusts. The town, despite all good intentions, is subject to unforeseeable political pressures and therefore isn’t the safest place for easements. Homeowners’ associations similarly could be tempted to give up easements in favor of further development.

Question 6. Can KKC build into its proposals consideration of the need for contiguity of Open Space and the desirability of protecting wildlife? The OPDS made an interesting suggestion on P. 19 for how Mystic Weigh’s Open Space could have been better joined with other Open Space to the north. The principle behind this suggestion — avoiding fragmentation of Open Space — is worthy of study for inclusion in planning code.

Question 7. How will KKC’s proposals, if implemented, change the final buildout projections for Groton? How many people can live here if your plan is carried out vs how many can live here if we keep on going the way we are?

Now we’d like to comment on the other kind of Open Space — the kind that is permanently protected by government and land trusts. The quality of the KKC report takes a steep dive when it moves to this area.

The report says (P. 10) that “Groton has an abundance of permanent open space under a variety of public and quasi-public ownership arrangements.” It depends on what you mean by abundance. The Town of Groton 2002 Plan of Conservation and Development found that only 11% of Groton’s land was securely and permanently protected. That is well below the 21% recommended by the state. The statistic on protected open space comes from POCD Work Booklet No. 11. It’s easy to remember: 11% — Work Booklet 11. KKC says that the town and citizens have continued to acquire additional protected land since the POCD was adopted. Well, the town may have picked up some disconnected patches of land in various subdivisions. But that’s it, as far as we know.

The state purchased 57 acres to add on to the Haley Farm State Park, a transaction that GOSA had worked for years to facilitate. And recently the Groton Open Space Association purchased The Merritt Family Forest, a 75-acre tract on Route 1. GOSA is justly proud of these additions, but they are statistically insignificant. KKC is not correct in painting a picture of abundant and increasing open space that is permanently protected.

Rather, what’s happened since the POCD was published is that more land has been plowed under for development while the amount of permanently protected Open Space has shown no significant increase. Net result is less actual Open Space and no statistically important increase in protected space.

Disappointingly, the report makes no mention of the Conservation Commission’s lengthy list of properties worthy of protection. This list has languished for years, though the POCD designated the Conservation Commission “as the appropriate entity to develop an action plan for Open Space preservation.” The commission has delivered the plan, but the OPDS has not delivered the action. Why is this situation allowed to continue?

The KKC recommendations for protecting Open Space within development tracts are thoughtful and worthy of serious, though critical, consideration. However, the recommendations should not be seen as a substitute for action on the Conservation Commission’s formal plan for protecting the best of the Groton’s remaining natural areas. Sure, it costs money to save land, but so do many other worthy functions of government, and the Town of Groton funds them generously.

Action now — long delayed though it is — can provide current and future residents with an exceptionally favorable quality of life, even as other communities trade their natural heritage for “tar and cement.”

Finally, we would like to urge that KKC meet again with the public on several occasions in coming months before formulating a final set of proposals. If that takes an increase in the budget for this project, it would be money well spent.

A brief addendum: Recommendation #25 of the KKC report contains this sentence: “Adopt provisions to allow the administrative review and approval of minor activities within upland review areas.”

The questions: who declares an activity to be minor? Does “administrative review and approval” mean that the OPDS would be allowed to approve anything minor–independent of the Inland Wetlands Agency?

This would seem to be a controversial recommendation in light of the Wal-Mart/reservoir case if it means what it could be interpreted to mean.