ANTRIM PLANNING BOARD MEETING
July 24, 2008 Meeting
Members & Staff Present: Diane Chauncey (Staff), Bradley Houseworth (Staff), Joe Koziell (Member), Steve Schacht (Ex-Officio), Missy Taylor (Member), Kathi Wasserloos (Member), CR Willeke (Alternate)
Member & Staff Absent: Scott Burnside (Member), Andrew Robblee (Chair),
Sandy Snow (Vice Chair)
Invited Participants: Bart Mayer (Town Counsel, Upton & Hatfield, LLP),
Peter Pitsas (Town Engineer, Underwood Engineering, Inc.)
Public Attendees: David Bashaw (Applicant), Barbara & Arnold G. Hutchinson (Applicants), Peter Mellen (Surveyor for Nastasi & Hutchinson),
Althea Nastasi (Applicant), Ben Pratt (Citizen), Paul Young (ZBA Member)
Public Meeting:
Steve Schacht (acting as Chair Pro-Tem for the absent Mr. Robblee) convened the public meeting at 6:05 pm to review the proposed changes to the ‘Antrim Subdivision and Site Plan Review Regulations’ suggested by the Town Engineer, Mr. Peter Pitsas. Due to the potential legal ramifications and the sensitivity of the proposed revisions, the Board invited both Town Counsel (Mr. Bart Mayer) and the Town Engineer (Mr. Peter Pitsas) to attend this meeting in order to provide their expertise and advice on what the Boards’ options are regarding potential changes to the existing major subdivision approval process, performance guarantee requirements, and construction sequence.
Chair Pro-Tem Schacht turned to Mr. Houseworth to review the Boards’ current major subdivision approval process, highlighting the various steps from conditional approval to final product (a completed major subdivision). Mr. Houseworth used a handout to explain the existing procedure and framework required by the current ‘Antrim Subdivision and Site Plan Review Regulations’ for all major subdivision approvals. The second part of the handout involved a Performance Guarantee Q & A from Plan-Link (a list serve for Planning and Zoning Boards to query other NH towns) which Mr. Houseworth had asked “are there other NH municipalities which allow a major subdivision proposal (with the construction of a new road to Class V specs) to be approved WITHOUT the posting of a performance guarantee by the applicant?
Pertinent responses came from the towns of Stratham, Thornton, Rochester, Farmington, and Belmont. The Town of Belmont included its Subdivision Regulations pertaining to conditional final approval. (This handout is available at Town Hall or electronically.)
After Mr. Houseworth finished summarizing the existing major subdivision approval process, Mr. Bart Mayer reviewed another option the Board could pursue in order to reduce the applicant’s expenses while still providing adequate protection to the Town. He stated that as he understands it, some of the Board members are struggling with the necessity of requiring security for all new major subdivisions in Town and want to see if they could get to an option which doesn’t require security and/ or limits the applicant’s expenditures to the maximum extent possible.
Mr. Mayer explained that he doesn’t see any approach that the Board can safely take without requiring some costs. However, if a new $350,000.00 road is proposed for a new major subdivision, the law does not require that the Board secure a performance guarantee for the full amount ($350,000.00) of all of the improvements. He stated that if the Board decides to allow construction in lieu of posting the performance guarantee/ security, then he has seven (7) items below that have to be considered and/ or be requirements within the ‘Antrim Subdivision and Site Plan Review Regulations’ for this potential new major subdivision development option, tentatively titled ‘Option B’:
1) The Board needs to have a requirement for a performance guarantee for erosion control/ reclamation. This is a must - you have to have it. Mr. Mayer provided an example where a new road was built on a very steep slope above Lake Sunapee, the project failed, and the sand was washing down the road into Lake Sunapee and onto public property. The Town ended up in a lawsuit. The Town called the performance bond and instead of building the road out, they decided to install erosion control measures, re-graded the road, and loamed and seeded the site to stabilize it.
2) The Board needs to make the process very clear for all applicants, specifically the fact that the construction of the road is a condition precedent (NOT subsequent) to the Boards’ final approval. This means that the construction of the road must be completed before the final subdivision plans are approved and the mylar is sent to the Hillsborough County Registry of Deeds; which officially makes the subdivision lots legal, separate tracts of land. It must be made very clear that the applicant does not have final approval just because construction is allowed to begin.
3) No building permits will be available to the applicant until the road construction is completed and the final mylar is signed and registered at the Hillsborough County Registry of Deeds. Mr. Mayer explained that most developers, when they come to realize the steps of this process, realize that this really isn’t an attractive position to be in because they can’t get any capital from the issuance of building permits until the road is constructed and the final subdivision plans are approved. He explained that therefore the applicant is left with a large capital expenditure up front, which is obviously their concern and decision to make regarding which development option they choose to proceed with.
4) The Board needs to specify a time frame for the completion of all improvements to a certain standard. Mr. Mayer explained that without this time frame requirement, the project could potentially linger for years, and then as the Town learns from its past experiences and adopts additional regulations, the development becomes grandfathered in certain respects because the construction has been drawn out for so many years.
5) The Board needs to have a requirement for a performance guarantee for the paving of the new road. Mr. Mayer explained that most public works directors would rather the subdivision road not be paved before the applicant gets into constructing homes because they are taking bulldozers out, tracked vehicles, and they end up destroying the road. He stated that he has already been involved with two (2) lawsuits regarding these very issues. He stated that the Board could set up a condition of approval or requirement in the regulations which states that the new subdivision road must be at least brought up to a gravel surface (or binder course/ base coat of pavement as suggested by Mr. Pitsas) and secure a performance guarantee for just the final paving of the new subdivision road. He stated that the Board
would want to continue to require that the applicant post an escrow account with the Town, which will be used by the Town Engineer to provide engineering construction monitoring and inspection services during the construction of the road to a gravel surface and during the paving process.
Mr. Mayer explained that this potential ‘Option B’ has now minimized the costs to the applicant, which includes:
1) a performance guarantee for erosion control and reclamation;
2) a performance guarantee for paving; and
3) the establishment of an escrow account by the applicant for the Town Engineer’s inspection services. As the Board can see, there are three (3) major costs involved in this potential ‘Option B,’ and they are far less expensive than the requirement of a ($350,000) performance guarantee for the entire road.
6) The Board needs to make sure that all local, state, and federal permits are in place before construction is allowed to begin on the subdivision. Mr. Mayer explained that any necessary NH DES wetlands permits, NH DES alteration of terrain permits, and/ or US EPA NPDES II Construction General Permit (CGP) and Storm water Pollution Prevention Plan (SWPPP) must be issued and in place before any construction is allowed to begin. Mr. Houseworth stated that it is also a good idea to include any of the conditions of these state and/ or federal permits on the subdivision plans and/ or the notice of decision as conditions of approval so the Board is assured they are followed and can be enforced by the Board of Selectmen and Code Enforcement Officer.
7) The Board could set up a standard form agreement for this potential ‘Option B’ approach, which the applicant would sign-off on. Mr. Mayer explained that the construction sequence would be as follows:
1) The escrow account is established for the Town Engineer’s inspection services,
2) The performance guarantees are secured for the paving and reclamation,
3) The pre-construction meeting is held with the appropriate individuals, and
4) The Town Engineer then knows when to show up on site for various stages of inspection as they construct the road.
He stated that once the work has been completed by the applicant and the road has been brought up to a gravel surface (or binder course/ base coat of pavement as suggested by Mr. Pitsas), then the Board needs to hold another public hearing to exercise discretion in determining whether the conditions precedent have in fact been met. He explained that some conditions precedent, which do not require judgment by the Board, can be determined to have been met without the holding of a public hearing by the Board. For example, he stated that when determining if a wetlands permit was issued, a decision could be made by the planning staff and Board without the holding of a public hearing because it is a simple yes or no.
He summarized by explaining that at this point:
- The road has been brought up to a gravel surface (or binder course/ base coat of
pavement as suggested by the Town Engineer),
- The Board still has the performance guarantee for final paving in place,
- The Town Engineer’s inspection program is more-or-less done (besides a small amount
of the escrow account left for inspecting the final paving process),
- Most of the performance guarantee for erosion control and reclamation has been
released (besides a small amount for any future erosion issues).
He stated that now the Board can:
- Sign the final subdivision plans,
- Send the mylar to the Registry of Deeds (Making the subdivision approval official),
- The applicant can sell lots and apply for building permits.
Mr. Mayer explained that it is very important that the applicant clearly understand that under this ‘Option B,’ he/ she will not be able to sell lots or get building permits until the development has reached this stage of construction and the final subdivision plans have been signed. He suggested that the Board could also limit the construction work in the subdivision to the road only and prevent them from clearing of lots before the mylar is signed.
Mr. Mayer stated that this potential ‘Option B’ system can work. However, he explained that most of the twenty-six (26) NH towns that he represents prefer to go with the approach the Town of Antrim traditionally has, which is to require a performance guarantee for all improvements and construction up front. He stated that some planning professionals (expressed in the Plan-Link Q & A handout) simply said just don’t do it; don’t even consider allowing improvements without adequate security for all proposed construction. Mr. Mayer explained that with that being said, ‘Option B’ is an alternative that is available to the Board and is an approach that can work, as long as the Board and planning staff are very careful with how the process is carried out.
Mr. Mayer warned the Board against relying on the subdivision revocation process as a tool to address road deficiencies at the outset. He also warned the Board against relying on the practice, as other Towns do, of withholding and not issuing certificates of occupancy for the new subdivision lots until the road is completed and suitable for its intended uses. He explained that he has been in court twice on this subject and in both cases the municipalities were forced to issue the certificates of occupancy, the Boards were left with no tools to use as leverage to force the applicant to finish the road, and the Towns were left with a deficient road in a new subdivision.
Mr. Peter Pitsas stated that he has only one concern with this potential ‘Option B’ approach. He stated that if you require the applicant to just construct the road to a gravel surface, and don’t require the placement of the binder course/ base coat right away, then contractors are generally going to be less careful during construction activities and you have a good chance that your gravel will be re-graded, removed, trenched, or contaminated with loam, sand, and other sediments. He explained that although placing the binder course/ base course at such an early stage of construction can raise concerns regarding potential future damages to it during the construction of the house lots, contractors are much more likely to be careful with heavy equipment on that road when the binder course is in place. Mr. Mayer
stated that he would defer to the Town Engineer on this point, but suggested that the Board hold off on final paving of the new road as long as possible, in order to minimize potential damages to it.
Mr. Pitsas explained that the Board has recently been struggling with this exact issue, of when to allow final paving to occur. He stated that most of the recent major subdivision plans had a note on them stating that final paving will not be completed until all improvements have been completed on all lots. He explained that this has recently caused problems as the economy has taken a downturn, many of these lots have not sold, and the subdivisions are not being built out as quickly as originally anticipated. Due to this, the Board has most recently agreed to require that the final paving be done no more than one to two years after the binder course/ base coat of pavement has been placed, in order to minimize destruction to the binder course from numerous winter weather events.
Mr. Pitsas also explained that the Board would have to work with the Building Inspector, Mr. Jeff Parsons, to make sure that the contractors are held accountable for any damages to the road incurred during the development of the individual lots. He stated that this road damage fee would have to be paid to the Town before a certificate of occupancy is issued. Mr. Mayer agreed with this approach but stated that the building permit would have to include a very specific condition which states that any damage done to the subdivision road will be the responsibility of the contractor and he/ she will be required to pay a certain amount when they apply for the permit for these potential damages.
Mr. Mayer summarized the discussion by stating that it is clear that the Board could now have two (2) options: 1) the security option that the Board already has and is somewhat discontent with; and 2) this new ‘Option B,’ which is lower cost but also has its burden on the applicant and may require more administrative work and staff oversight. Mr. Mayer suggested that the Board encourage applicants to obtain letters of credit vs. bonds for performance guarantees. He also recommended that the Board create a standard ‘irrevocable letter of credit with a self-calling provision’ form, which could be made past of the regulations as an appendix, so the applicants have a standard form to use.
The Board discussed the merits of Attorney Mayer’s proposal, and although no decision was reached, the general consensus was that ‘Option B’ held merit. Mrs. Wasserloos expressed regret that Mr. Burnside was not present to relay his feelings concerning the smaller developers’ opinion of the existing performance guarantee requirements.
Conceptual Consultation – Bashaw, David; File # 2008-06PB – Minor Subdivision:
Chair Pro-Tem Schacht asked Mr. David Bashaw to present his conceptual consultation for a minor subdivision proposal off Stacy Hill Road. Mr. Houseworth reminded the Board that conceptual consultations do not involve decisions or agreements by either party and are strictly designed to help guide the applicant through the minor subdivision process.
The applicant would like to subdivide 29 acres (33 Stacy Hill Rd, Map 213, Lot 11) in the Rural District into 3 additional lots as shown on the sketch. Each new lot would meet the minimum zoning district requirements of 200 feet of road frontage and 90,000 sq. ft. in size. Mr. Bashaw suggested 2 partial waivers from the ‘Subdivision & Site Plan Regulations’: (1.) That although he is proposing to create three (3) new house lots, that the proposal still be considered a minor subdivision because of the 867 feet of existing frontage and the fact that no new road will be built; (2.) Partial Survey: The 29-acre parcel is surveyed, so he is curious if the Board would accept a new partial survey of approximately 6 - 8 acres of the lot proposed to be impacted by the subdivision. The
Board discussed the following:
· Frontage -- all lots will be compliant
· Line of sight may be a problem
· Lot size will conform to regulations
· No wetlands on parcel
· Entire frontage should be surveyed
After a short discussion, the majority of the Board members seemed to think that Mr. Bashaw’s suggested waivers were reasonable and they would entertain such a request during a formal application for a minor subdivision at a future date.
Public Hearing - Nastasi/Hutchinson; File # 2008-05PB, Lot Line Adjustment/ Annexation Proposal: Chair Pro-Tem Schacht appointed Mr. Willeke to sit for the absent Mr. Burnside and opened the public meeting at the request of The Althea R. Nastasi Revocable Living Trust and Arnold G. & Barbara D. Hutchinson for a lot line adjustment and annexation of properties located at 5 South Holt Hill Road (Tax Map 101, Lot 57) and 91 Gregg Lake Road (Tax Map 101, Lot 60), Antrim, NH 03440 in the Rural Conservation District and the Lakefront Residential District. He asked Mr. Houseworth to read the public notice aloud and review the information in the packet. The application, maps,and property cards were examined. Chair Pro Tem Schacht turned the remainder of the presentation to Mr. Mellen, licensed surveyor for the
Nastasis and Hutchinsons. Mr. Mellen explained that several structures had been built on or over the existing lot line and that a portion of the Hutchinson land would be annexed to the Nastasi land. Mr. Mellen discussed the seven (7) waivers that were requested because there is no new development or new structures proposed.
Mr. Houseworth stated that Mr. Mellen did an excellent job as always completing the application, submitting a written letter for waiver requests, and creating a very thorough and detailed annexation plan. He recommended that the Board accept the application.,which was seconded by Chair Pro Tem Schacht. Roll Call Vote: Mr. Koziell, aye; Chair Pro Tem Schacht, aye; Mrs. Wasserloos, aye; Mr. Willeke, aye; and Ms. Taylor, aye.
Public Hearing: Chair Pro Tem Schacht opened the public hearing to receive any public comment. All certified letters were sent (two were not returned). No complaint letters were received nor any in person comments. There were no comments from the public attendees. The public hearing was closed.
Deliberation: The Board members asked if any of the department reviews received by the staff expressed any important concerns. There were none. Mr. Houseworth went through the checklist for minor subdivisions, lot line adjustments, or annexations.
The Board voted on the following waivers:
- #14, B.3.a (9) - Waiver request for buffers (Chair Pro Tem Schacht moved the waiver to be accepted, Mr. Koziell seconded it, and it was approved by all);
- # 15, B.3.a (10) Waiver request for driveway (Chair Pro Tem Schacht moved the waiver to be accepted, Mr. Koziell seconded it, and it was approved by all);
- #16, B.3.a (11) Location of wetlands (Mr. Kendall moved the waiver to be accepted, Mrs. Wasserloos seconded it, and it was approved by all);
- #17, B.3.a(12)Location of water bodies, stream, rock ledges, drainage ditches and bridges, the cemetery is shown in the NW corner of property (Mr. Schacht moved the waiver to be accepted, Mr. Koziell seconded it, and it was approved by all);
- #22, B.3.a(17) Location of soil test pits, etc. (Chair Pro Tem Schacht moved the waiver to be accepted, Mrs. Wasserloos seconded it, and it was approved by all);
- #23, B.3.a(18) Existing grades, drainage systems and topos, etc. (Mr. Kozielll moved the waiver to be accepted, Mr. Willeke seconded it, and it was approved by all);
- #33, B.3.a (25) Existing soils delineation (Mr. Koziell moved the waiver to be accepted, Mr. Willeke seconded it, and it was approved by all);
All other checklist items were either deemed satisfied or not applicable.
Mr. Koziell moved to approve the application of Althea R. Nastasi Revocable Living Trust/Arnold & Barbara Hutchinson, File # 2008-05PB, for a lot line adjustment and annexation of properties at 5 South Holt Hill Road (Tax Map 101, Lot 57) and 91 Gregg Lake Road (Tax Map 101, Lot 60), Antrim, NH 03440 in the Rural Conservation District and the Lakefront Residential District, with the two standard conditions of approval. It was seconded by Chair Pro Tem Schacht. Roll call vote: Mr. Koziell, aye; Chair Pro Tem Schacht, aye; Mrs. Wasserloos, aye; Mr. Willeke, aye: Ms. Taylor, aye.
Mr. Houseworth stated that the lot line adjustment and annexation proposal was approved by the Board and that a notice of decision, signed and endorsed by the Chair, will be sent to the applicants within thirty (30) days, with the two conditions.
Approval of Planning Board Meeting Minutes: Ms. Taylor moved to accept the July 10, 2008 meeting minutes as corrected. It was seconded by Chair Pro Tem Schacht. Unanimously approved by all. Ms. Taylor inquired about the possibility of more of the Planning Board packets being sent in an electronic format. Mr. Houseworth said that may be possible and that the Planning Department would consider it.
Business Meeting:
- Pierce Lake Estates II Subdivision – Final Paving of Knapton Circle was done on
7/15/08
- In’Ex Homes, LLC – Subdivision Peer Review Expense still outstanding. Mr. Philip Marrotte's letter from the Planning Department was discussed. After a short discussion, the Board requested that Mr. Houseworth send another letter to Mr. Marrotte, requesting the outstanding charges of $2,700.00 ASAP, and explain that Underwood Engineers, Inc,. has started to charge interest, which will be passed on to Mr. Marrotte.
Correspondences:
The following correspondence were reviewed and discussed:
· NH DES Comprehensive Shoreland Protection Act (CSPA) - new rules regarding when a State Shoreland Permit is required and exemptions
· Board of Selectmen 7/3/08 Meeting Minutes – 2008 six month review & analysis
· Town of Antrim moves to dismiss the Petition for Declaratory Judgment filed by Breezy Point Condominium Association regarding public access to Pierce Lake.
· NH Local Government Center (LGC) – 21st Annual Municipal Volunteer Awards. Nominations must be received by NH LGC by Friday, August 29, 2008.
Chair Pro Tem Schacht moved to adjourn the meeting, which was seconded by Mr. Willeke, and unanimously approved. Chair Pro Tem Schacht adjourned the meeting at 8:25 PM.
Respectfully submitted,
Diane Chauncey, Staff
On Behalf of the Antrim Planning Board
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