Shaky Ground

Why Flexible Rules and Reasonable Regulators Are a Builder's Worst Nightmare.

A couple of years ago, my wife and I were looking at a small house in a New England town that I will call "Hampshire." The property also encompassed a strip of land in the town to the north of us-let's call it "Yorkshire." Our intention was to buy and then expand the house, but we discovered two obstacles to doing so. The first was that the lot was "nonconforming" because it was just one acre in an area zoned for two-acre lots. To do any work, then, we would need a zoning variance. The second obstacle was a creek 80 feet from the house; its proximity meant we would need approval from the conservation authorities of both towns. To help us decide whether to go ahead, we called Hampshire Town Hall and spoke to the clerk, a pleasant woman who cheerfully answered our questions. Yes, she told us, most likely we would be able to expand. According to her, about 95 percent of all variances were approved.

We weighed our decision. The asking price was very reasonable, and we loved the rolling property with its seasonal creek. But what if we weren't permitted to expand? We could always sell and move on. But this would entail two moves in two years, as our first child was on the way, and the house, without expansion, soon would be too small for us. With some trepidation, we finally made an offer on the house.

Having secured the house, we proceeded with plans to expand. That's when we discovered we would have to persuade the Hampshire Planning and Zoning Commission, the Hampshire Conservation Commission, the Yorkshire Planning and Zoning Commission, the Yorkshire Conservation Commission, and the Yorkshire/Hampshire Health District that we were worthy of the additional space.

Our architect, who had grown up in Hampshire, agreed to guide us through the approval process. I knew I had made the right choice when, at our meeting with the Hampshire Planning and Zoning Commission, one of the board members introduced our architect to another member by saying, "You remember Phil from the Hunt Club, don't you?" The architect and I had a site walk with the inspector from the health district, and another one with the building inspector. We attended one zoning meeting. We also attended conservation meetings-four of them.

I came to know the members of the Hampshire Conservation Commission like family-like my family when I was a teenager, as they considered whether to let me take the station wagon out on a Saturday night. The dominant personality on the commission was a fellow named Fred, who was also, not surprisingly, the chairman.

Fred was always smiling. He smiled at odd, inappropriate times, such as when saying, "You see, if we don't have an MA-103F Soil Test Form completed and in front of us, we're just not going to be able to proceed with your application." The smile seemed intended to assure people that Fred's request, however arbitrary and cumbersome it seemed, flowed from a fountain of wholly benign eco-concern.

One of Fred's main concerns was that everyone who came in for an approval would plant a particular species of river weed called "sedge" along the edge of their wetlands. In almost every application, Fred brought up the subject of sedge, always with great gusto. I began to wonder if Fred had ties to the National Sedge Growers Association. Exactly which plants would border your wetland was a matter of utmost concern to him. He made one supplicant agree not to plant a lawn within 20 feet of her creek as part of the terms of her approval. She had offered not to use any "chemical" lawn products, but Fred wasn't buying it. No, he explained, some future owner might be tempted to hire "ToxoLawn" to maintain that patch. The applicant was responsible not only for her own acts involving the wetlands but also the potential acts of future owners. She was enjoined from undertaking activities that, while not harming the wetlands in themselves, might tempt the guy who owns the house 20 years from now into harming them.

At one meeting we met the God of Boredom, whom we came to call Soil Engineer. He had been hired by some poor soul who was on his fourth trip to see the commission for a four-lot subdivision. The applicant also brought along a couple of fellows in suits-his attorney and his builder. Soil Engineer attempted to lull the board into submission by describing, in detail, the geological history of the lot from the Cretaceous Period to modern times. As the North American and European continental shelves separated, I found myself biting my lip to shock myself awake. I was sure that if my head slumped forward during the meeting, it would count against me when the vote on my property came.

Soil Engineer began discussing "drumlins." Don't ask me what these really are-by this stage of the meeting I was in a semi-hallucinatory state, and my recollection is that it was inside a drumlin that Frodo Baggins first encountered a barrow wight.

Fred leaned forward with a knowing look on his face. The tension in the room heightened from none to the smallest amount above none that can possibly be measured. Had Fred found, amid the nearly pure white noise of this monologue, the melody that would resolve the dispute?

"Were the drumlins formed while the glaciers were advancing or while they were retreating?" he asked.

Could this really be the deciding factor? "Retreating? Good. Approved!" No-Fred was educating an audience whose knowledge of Ice Age New England he knew to be sorely deficient. Suddenly, the applicant exploded at the commission. All over the room doodling ceased and heads picked up. He launched into a tirade about how other, larger projects had been approved, because, he implied, the applicants were wealthy developers who gave generously to the campaigns of various town officials.

Predictably, the commission was not amused. Fred graced the supplicant with a gentle smile.

"We understand that you're upset," he said, "and we'd like to help you. But we're going to need some more information from you before we can proceed."

Fred then listed inconsistencies to be resolved, measurements to be made, obscure plant species to hunt for on the land. The applicant, duly chastised, shuffled off with his contingent.

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