Officials say petitioned zoning amendmends will stop Market Basket from building in Plymouth 1203

Published Date Written by Mike Mortensen

PLYMOUTH – A group of petitioners wants to restrict development between the Tenney Mountain Highway and the Baker River, saying that the move will boost land conservation and protect the town's future water supply. But opponents of the three petitioned warrant articles that are on next Tuesday's town ballot say such a change could squelch commercial development, including one project already under way which is being seriously eyed by a major supermarket chain.
The most far-reaching of the three amendments would prohibit the placing or removing of earth from land within 500 feet of the Baker River from the Rumney town line to where the Baker empties into the Pemigewasset River. The effect would be to restrict the use of about 465 acres, according to petition supporters.
The two other proposed amendments would add some language from the town's Master Plan into the ordinance governing the town's Environmentally Sensitive Zone (500 foot buffers along the Baker and Pemigewasset rivers and Loon Lake), and that this zone not extend across to the opposite side of Tenney Mountain Highway away from the Baker River.
Part of the 76 acre Riverside Landing development lies within this protective buffer. Site work is already under way on one phase of the project where McDonald's and Bank of New Hampshire plan to build. In addition the Market Basket supermarket chain is seriously considering building an approximately 60,000-square-foot store in the project's second phase, according to Mike McGinley, the owner and developer of Riverside Landing. Market Basket's senior management has given corporate approval to the Plymouth store, McGinley said in a media release issued Tuesday.
McGinley also said he has made overtures to the New Hampshire Liquor Commission about putting a liquor and wine store at Riverside Landing.
Supporters of development, including many town officials, say that that commercial development will enhance the town's tax base. And they say that the zoning ordinance supporters are misinforming the public about alleged dangers which such development close to the Baker River would pose.
"It's emotion over science," said town Code Enforcement Officer Brian Murphy, whose responsibilities include zoning compliance.
As one example, Murphy said the petition supporters' assertion that the amendment is necessary in order to protect the town's future water supply is erroneous since the Plymouth Water and Sewer District has already concluded that the area is not a viable water source. He said that test borings have shown that "no aquifer is known to exist beneath the land."
Petitioner Margaret Salt concedes that while there may be no hard evidence that an aquifer exists, she nevertheless feels that the land needs to be protected from development in the event that an aquifer is discovered. "We have not fully explored for an aquifer," she said, "and I would rather development take place on the other side of the road (away from the river), and not develop where there is a possible aquifer."
Mary Crowley, a key petition supporter, voiced a similar sentiment. "I would rather err on the side of caution when it comes to the environment," she said.
Petition supporters also say the stricter regulations are necessary because the land close to the Baker River is prone to flooding.
"I've seen water right up to the road several time," said Salt.
Murphy said that while the amendment would affect the ability to develop many parcels, the most immediate concern is its impact on Riverside Landing, located at the intersection of Tenney Mountain Highway and Highland Street, which was once the proposed site for a Lowe's home improvement store.
"This (petition effort) all seems to be pinpointed to one possible site," said Murphy who added that should the amendments pass "it would freeze the back end of the (Riverside Landing) project where the potential Market Basket store would be built.
Selectman Mike Conklin concurred. "The attention and the driving force (behind the petitioned warrant articles) was this site," he said.
Murphy said that plans for the Riverside Landing show that overall building and parking area sizes will be virtually identical to the Lowe's plans which were approved by the town, a decision that was ultimately upheld by the state Supreme Court.
"This is the most studied piece of land in Plymouth," Murphy said. He said that because of the development's proximity to the Baker River the developer is required by local ordinance to adhere to stricter standards that those contained in the state law and that to ensure that runoff from the site does not pollute the river, the developer is being required to build an elaborate underground septic system to contain and filter storm water.
But Crowley says that approving the zoning amendments will not stop the Riverside Landing project from going forward as envisioned by the developer. The McDonald's and Bank of New Hampshire buildings have already been approved, and the phase where the supermarket could be located is already before the Planning Board for design review. "The time for these arguments (about Riverside Landing) are passed," she said.
Crowley and other petitioners say that are not opposed to development and that they support efforts to increase the property tax base in Plymouth, where a considerable amount of property is tax-exempt. They say that their only aim is to place strict limits on the ability to develop land close to water bodies like the Baker River.
"We have perfectly good land on the other side of the road," Salt said.
But Conklin said it is the land that on the side toward the river that businesses prefer. "Nobody has come to the other side," he said. "They come to this one."
Conklin was skeptical about the Crowley's claim that the amendments would not impact Riverside Landing. He said it was likely that "if the amendments were to pass these people would challenge" the project in court.
The petitioners say the purpose of the amendments is to make the intent of the Environmentally Sensitive Zone ordinance passed in 1988 crystal clear.
The ordinance, as written, prohibits the moving of soil on the land within the zone except for incidental reasons associated with a particular piece of property. Petition supporters say that those who helped craft the ESZ ordinance intended "incidental" to mean that any movement of soil would be small or insignificant. But when the Lowe's development came before the Planning Board the board interpreted "incidental" to mean that the moving of soil had to be associated with the construction work on that particular parcel. In other words, soil could not be removed from one parcel and brought to a building project on another parcel.
That latter interpretation was found to be valid when the courts, including the Supreme Court, ruled that the Planning Board acted properly when it approved the Lowe's project.
"Incidental means (that any moving of soil that occurs) needs to be done in order to complete the project," said Murphy.
The petitioners say the Supreme Court ruling made a key provision of the ESZ ordinance unenforceable.
"The purpose of the ESZ was to protect this area," said Doug McLane, a petitioner who was on the town Conservation Commission when the ESZ ordinance was created. "What we are doing (through the amendments) is correcting the wording" so the ordinance's original intent is restored.