Wetland exceptions not unreasonable

Is it reasonable use, or unreasonable abuse?

As reported elsewhere in this issue, the city is taking another look at the so-called “reasonable use exception” – the policy by which construction can encroach on a wetland or other “critical area” if, without the encroachment, no construction is possible.

Folks in several neighborhoods have raised the issue, alarmed at the specter of construction on swampy parcels in their area. But while there’s something to be said for re-examining policies that may be taken for granted, we’re not sure the policy as it exists is unreasonable or abusive of our island environment.

The degree of intrusion into critical areas under RUEs, to our understanding, has to date been minor – an access road through a wetland (presumably mitigated by a culvert), and a few minor intrusions into wetland buffers. We’re comforted by the fact that the chair of the Wetlands Advisory Committee, a zealous advocate for the environment, gives the city’s program generally good marks.

Nor is this a situation where the city is, by regulation, making unbuildable land buildable; the reverse is more accurate. Until recently, wetlands were regarded as more of a nuisance than an environmental asset. They were filled in and built upon. While we don’t dispute the benefit of protecting such areas, they have been made unbuildable by regulation, not geography. (It should be noted that RUEs, sensibly, cannot be granted to property owners who created their own problems by subdividing after wetland regulations took effect.)

It’s not as though the city has chosen to allow “reasonable-use” permits. What some see as a loophole balances the rights of individual property owners against the community-wide benefits of regulation.

To simply declare that no wetland development is permitted would render such land economically worthless. While government is entitled to “take” land for public benefit – and environmental benefits qualify – the Constitution requires the government to compensate the owner. Advocates of fewer exemptions are, in effect, arguing for more public buyouts of private landowners.

The real challenge is to actually define “reasonable use,” something the city has been reluctant to do in the name of flexibility. We think non-specificity is a mistake. Policy makers might consider defining “reasonable use” in a residential zone as a single-family home with a specified footprint. The process would be a straightforward matter of keeping a home of the defined size out of wetland areas and buffers. If an owner wants a bigger house, the city might consider variances from street setbacks, but not incursions into critical areas.

Defining “reasonable use” would also help the city say “no” if it deemed a wetland incursion unacceptable. Where the city decided to prohibit any construction, the alternative might well be to buy the property, and defining the owners’ entitlement would help nail down the price.

But let’s keep our environmental focus where it belongs – on the protection of whole wetland systems, not the odd vacant lot with the seasonal swamp.

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