Unreasonable Standard

The following article by State Representative Mark McConkey appeared in the 3/5/11 edition of the Conway Daily Sun and was provided to us by the Representative for publication.

I have raised three children in Ossipee and I now reside in Freedom. My children have been raised on clean well water and have never been subjected to any chemical treatment. Clean water is a precious commodity and living over one of the largest stratified-drift aquifer’s in New England certainly warrants protection.

I am the water operator for the second largest public water supply in Ossipee and I design wastewater treatment systems that return clean water to recharge our groundwater. I chaired the Ossipee Zoning Board of Adjustment for 12 years and was a member of the Lakes Region Planning Commission Executive Board for 10-plus years. I understand that good planning is essential. Unlike several of the surrounding towns Ossipee has always had a ground water protection section contained in its zoning ordinance.

The proposed regional ground water protection ordinances for Freedom, Effingham, Sandwich Tamworth and an update to Ossipee were an attempt to provide one cohesive set of groundwater regulations that applied to all towns in the Ossipee Watershed, after all the aquifer knows no town boundaries.

As with most good intentions the final product has taken on in my opinion some unintended consequences. Just as the underlying aquifer knows no political subdivision boundaries it also cares not who is the polluter. Private residents are exempt from all of the new regulations, enforcement of the regulations and all fees associated with that enforcement. The focus is on business and those looking to develop or expand a business. I do not believe new business that generates or stores large quantities of potentially hazardous materials should be encouraged, my concern is for the economic engine and major employer in our towns and that is small business. So why were private residents excluded, I conclude that it was to gain more support from the citizenry.

Small Business in our area has historically been ecologically responsible and those potentially hazardous businesses by nature are now well regulated and monitored by the NH Department of Environmental Services. State-administered best management practices (BMP) are the normal now, not the exception. Most of our groundwater pollution to date resulted prior to 1980. I am unaware of any Brownfield sites in our target ordinance area or any businesses that have had a non compliant underground storage tanks that has not been removed. Those that compromised the ground water have been corrected or in the process of remediation.

Having familiarity with Ossipee regulations and owning businesses in Ossipee much of my attention has been with the proposed changes to this ordinance. The first draft as presented had many unintentional consequences targeted at the existing business community and if not corrected would have stifled expansion and stopped any reasonable potential development.

Most notably were the need for a special use permit and the need to develop a storm water management and pollution plan if you were not able to maintain a four-foot separation above seasonal high water table. Most of the land along Route 16 and Route 25 does not have an average seasonal high water table that is more than 48 inches below the surface. Did this mean that you couldn’t discharge storm water on your property? Must you collect your runoff and haul it away; do you have to bring fill onto the site to discharge storm water onto it? This standard was unreasonable at best.

This entire section will cost potential development or a expanding business expend tens of thousands of dollars and in the end may make most available commercial property along Route 16 and Route 25 to costly to develop or render those lands not buildable.

While this article has been removed from Ossipee’s proposal many of the surrounding towns still have the above mentioned regulation in their proposed ordinances. The Greater Ossipee Area Chamber recognized that this ordinance is anti-business and issued a letter to their member planning boards asking them to reject the present ground water ordinances.

After the first Ossipee groundwater hearing the planning board held a work session. Chairman Grover asked those present to bring forward items that might improve the ordinance. The three selectmen were present along with LRPC and me. Many items were discussed and the board agreed to include several changes. Those that we could not reach agreement on were tabled for further discussion. In fact before the meeting ended alternate planning board member Gillette asked the selectman,” if the agreed changes were made, would the selectman and I support the ordinance in its entirety?” The selectman and I agreed and we left the meeting thinking this matter was behind us. Unfortunately alternate board member Gillette at the final hearing did not bring forward any of those agreed changes.

My hesitation to whole hardily endorse this regional approach is because I know that there were individuals involved in the process that felt they know what is best for the public and pushed for many restrictions on the business community, knowing full well the consequences. Work for them “was done behind the scenes” and their agenda never saw sunlight.

My statements are verified by the Ossipee Aquifer Steering Committees (OASC) own minutes:

Feb. 12, 2010 Effingham: Discussion about how to get ordinances passed in towns. Kamal (Effingham Conservation Commission),” points out that in Effingham a lot of work behind the scenes.”
Aug. 13, 2010, Effingham: “suggested they focus on getting the tool (APO) in place and not focus on enforcement at this point in time.”
Nov. 12, 2010 Ossipee: “it was recommended that at the Ossipee public hearing the room did not need to filled, but it would be helpful to have someone to speak from the OASC. Keeping things low key has been beneficial to the process so far; perhaps having a public campaign after the meeting might work best.”

Good government cannot be exclusionary and the enlightened have no right to enforce their will on a less informed public. The Ossipee Aquifer Steering Committees should have involved the business community, before deciding their future. After two years of work by the committees, the proposed changes to the ground water ordinances were not brought forward in Ossipee until Jan. 2, 2011.

At present I along with the Greater Ossipee Area Chamber of Commerce and the majority of the Ossipee selectmen do not support the current proposed ordinance before the voters on March 8.

I pledge to work with Chairman Grover, elected members of the planning board, Lakes Region Planning Commission, The Greater Ossipee Chamber of Commerce and well-intentioned conservationists to to bring a better ordinance forward next year.

Mark McConkey is a N.H. state representative, lives in Freedom and owns businesses in Ossipee.

12 Comments

  1. Ivan 10 years ago March 7, 2011

    I don’t understand Mark McConkey’s objections to the groundwater ordinances. Preventing the kind of huge leak that happened at his own gas station, which he doesn’t mention, seems like a very good reason for not allowing more gas stations and other high-risk uses on our aquifer.

    His main concern seems to be with a narrow technicality of stormwater management. But if this really turns out to be a problem, it can be fixed in a future amendment to an ordinance. In any case, these provisions apply only to businesses using large amounts of hazardous materials, which McConkey says should not be encouraged in the first place.

    So what’s his real problem?

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  2. freedomresident 10 years ago March 8, 2011

    Can’t speak for Mr. McConkey, but suggesting a future amendment makes no sense either. If we are going to impose new laws and regulations, make sure you get it right the first time. The thought that the politicians will “fix” anything is wishful thinking.

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  3. Ivan 10 years ago March 8, 2011

    The odds that there is any problem in the ordinances with stormwater provisions as McConkey claims are very low. The ordinances are based on a model ordinance developed by NHDES and the text says the stormwater provisions follow a standard state manual on the subject.

    On the remote chance that something does need adjusting, in these or any other ordinances, it’s up to Planning Boards to recommend it to voters next time around (not politicians, thank goodness.) So-called “housekeeping” changes get made in ordinances all the time. This is no excuse to trash the groundwater ordinances on the ballots today.

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  4. freedomresident 10 years ago March 8, 2011

    Ivan, my understanding is that this ordinance has the same wording in each town. Wouldn’t you agree that the necessary changes be made at the begining instead of town planning board by town planning board? It would make the ordinance consistent and not leave any “wiggle” room for attorneys to sue a town and its taxpayers. One rule should apply to the entire aquifer.

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  5. Ivan 10 years ago March 8, 2011

    Freedomresident,
    The four brand-new ordinances in Freedom, Effingham, Tamworth and Sandwich are all quite similar but are not identical. Each town’s planning board started with the model ordinance and made adjustments according to local needs or preferences. Ossipee’s and Madison’s are minor updates of existing ordinances. And Ossipee’s doesn’t happen to include the stormwater parts that McConkey is objecting to (which makes it harder to understand what his problem is.)

    I’m not suggesting that there is a problem in any of them. But it is common practice to make minor fixes in ordinances, sometimes years after they’re adopted, when someone perceives a problem or when the planning board thinks an update is needed. This is a routine procedure. In any any case, I think the proper reaction by a planning board to one person’s complaint is not to reject the whole ordinance, but promise a further careful review.

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  6. Ivan 10 years ago March 8, 2011

    Sorry, further thought about your comment on “wiggle room” for attorneys if ordinances on a matter like groundwater are not precisely the same from one town to another:

    No wiggle room here. In NH, towns are sovereign. Each town can adopt very different ordinances on the same subject, which apply only within the boundaries of that town. Few if any ordinances are identical from one town to another. But for the convenience of businesses, it helps if they’re all at least consistent — as the groundwater ordinances are — and not contradictory.

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  7. freedomresident 10 years ago March 9, 2011

    Ivan,

    Thanks for the clarification. I understand that each town is separate, but was concerned that some attorney could argue that it is the same aquifir and therefore should be governed by the same rules.

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  8. freedomresident 10 years ago March 9, 2011

    By the way, anyone know how the votes turned out in each town?

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  9. Ivan 10 years ago March 9, 2011

    The groundwater ordinances passed overwhelmingly in Freedom, Effingham, Sandwich and Madison and failed in Ossipee and Tamworth, the two towns where there was organized opposition — including anti-ordinance mailers to all postal customers in Tamworth. In Ossipee, this only means that the 1989 groundwater protection ordinance remains in force unchanged (and un-updated.)

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  10. freedomresident 10 years ago March 9, 2011

    Would this apply to someone developing a large tract of land into housing? Or would it just apply to that developer if it were businesses? Anyone know?

    Thanks

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  11. Ivan 10 years ago March 9, 2011

    As I understand them, the ordinances only apply to a narrow class of businesses that regularly use large amounts (more than 100 gallons or 800 pounds) of state-defined hazardous materials, and then only within the mapped limits of drinking water protection areas in each town.

    The vast majority of business don’t fit this description.

    Certain businesses, like new gas stations or bulk petroleum storage, are prohibted in drinking water protection areas, although a local zoning board could grant a variance. Non-prohibited haz-mat businesses inside the protection areas would have to get a conditional use permit from the local Planning Board spelling out how they would comply with state Best Management Practices to protect the stuff.

    The ordinances specifically exempt residential property (something McConkey oddly complained about as unfair, even though few households I know keep 800 pounds or more of toxic stuff lying around.)

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  12. freedomresident 10 years ago March 9, 2011

    Ivan,
    Thanks for the clarification. I would imagine that current zoning and state regulations would take care of residential and small business developments within a tract of land.

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