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TOWN OF NEW BOSTON
NEW BOSTON PLANNING BOARD
Minutes of March 10, 2009
The meeting was called to order at 6:30 p.m. by Chairman Stu Lewin. Present were regular members, Don Duhaime, and Douglas Hill; and, ex-officio Dave Woodbury. Also present were Planning Coordinator Nic Strong and Planning Assistant Michele Brown.
There was no one present in the audience.
Discussion, re: Driveway Regulations
The Chairman thanked everyone for attending this special meeting. He stated that he had secured a projector for tonight’s discussion to be able to interactively make changes to charts they would be discussing that pertained to the Driveway Regulations. He added that the Road Agent, Building Inspector, Fire Chief would be invited to attend the next meeting on March 24, 2009, to discuss the new way of doing things regarding the regulations and that tonight they would prepare some items to help that discussion. The Chairman felt that the background behind the changes, flow chart on the new process and example forms and templates would be helpful for the discussion and for the upcoming meeting on March 24, 2009.
The Chairman noted that his flow charts were based on the Planning Department acting as the central clearing house for driveway permits, etc., and that the Board should make sure that there were some forms or checklists for onsite inspections since the reason the Board had gotten involved with inspections in the first place was to maintain consistency and conformance and having such forms going forward would help with accountability. Douglas Hill asked for a quick synopsis on the two prior discussions regarding Driveway Regulations as he had not been present. He noted that he was not completely on board with where the discussion was leaning. The Chairman replied that during the last discussion Peter Hogan had questioned whether the Board should be treading new ground with
the regulations since other towns were not abiding by the NFPA requirements either. He added that he felt based on discussions with Town Counsel that the Board should make efforts to comply going forward and his guidance had been clear that the Planning Board needed to remove themselves from the inspection aspect along with clarifying who set the guidelines for the interior of the lot which seemed to point toward NFPA. Douglas Hill thought that driveways for new subdivisions were handled through a fairly streamlined system now and asked if the main issue dealt with lots of record. The Chairman replied that Town Counsel’s point had been that the NFPA law applied to every type of lot. Douglas Hill stated that the crux of his point based on reading the minutes of the last meeting was that not issuing building permits until a driveway was installed was fraught with many issues that arose in the driveway construction process itself. The Chairman
noted that Peter Hogan, who was not present at tonight’s meeting, was strongly in favor of this and it was a discussion that he would want to be part of. Don Duhaime noted that Peter Hogan’s point had been that once a house was built the driveway seemed to adjust to the house and not always in a conforming manner. Douglas Hill noted that a rough driveway was always put in before the house was constructed and other issues came into play like culvert installation and materials that could be affected, depending on the time of year by weather, construction vehicles, etc. The Chairman replied that he had been of the assumption that Peter's idea was that enough of a driveway had to be installed to the point of grade, not including the finish materials. Douglas Hill did not think an engineer could shoot the grade for compliance without the finish materials in place. The Chairman felt that if it was a driveway that the Board had been concerned
about from the start, i.e., side slopes, grade, etc., then that could be part of the checklist the Board was considering. Douglas Hill disagreed with the point made, noting that this could delay building permits until more seasonable weather. Don Duhaime did not think too many contractors built in the winter months. Douglas Hill replied that this was not the case and as a builder he clarified that this was true for the economy they were in and for the future. He added that constructing a driveway in the winter months such as January and February sometimes posed major issues which was the reason for bonding and requiring As-Built plans. The Chairman asked how, for example, a 12% grade could be bonded to be fixed and noted that this was similar to the Inkberry driveway scenario. Douglas Hill thought that viewing the matter in this way could make 98% of applicants suffer for 2% of the problematic driveway issues. He thought there must be a
better way. Dave Woodbury clarified that in the past he thought that a stumbling block had been that builders decided where they were going to place a house on a lot before considering the driveway and now they were asking that both locations be considered at the same time. Douglas Hill thought this was a very good point. Dave Woodbury felt that applicants should know this coming into the process along with the fact that a CO would not be issued until compliance was confirmed. Douglas Hill thought this was being accomplished already with the new regulations and noted that this was the case with the requirement of Stormwater Management plans for lots with issues, i.e., not every lot. The Chairman asked what happened when a lot ended up with a driveway with a 14% grade post construction. Dave Woodbury thought that it meant no CO would be issued and a discussion should then be had with the involved engineer’s malpractice carrier.
Don Duhaime wondered if it had more to do with developers versus engineers. Dave Woodbury thought that if a developer made a commitment in good faith to the Town, obtained a Building Permit and did not follow through, he would not get a CO but questioned what happened after that. Douglas Hill recalled that such issues were not common and he could recall only two or three cases in the past several years. He added those were also pre-approved lots on bad land and to create a broad stroke against all applicants where everyone needed to put a driveway in prior to getting a Building Permit would create many issues. Dave Woodbury thought the driveway location was the first issue that needed to be clarified when applying for a permit. Douglas Hill thought that this could be accomplished by making the permitting process more clear with what would be required if a driveway presented issues.
Peter Hogan arrived at the meeting at this time.
Don Duhaime stated that he did not think the Road Agent had the ability to think through a process as mentioned above by Doug Hill. Dave Woodbury thought the process should present itself as reasonable for any road agent, fire chief, etc., to interpret and should not be tailored around a specific individual. Peter Hogan asked Douglas Hill if his contention was that not all driveways should have the requirement of being installed prior to a Building Permit being issued. Douglas Hill reiterated that there were a lot of issues that could come into play if all driveways were subject to this requirement. Peter Hogan stated that the Board was in their current situation with driveways because people were not properly enforcing what needed to be done and therefore, the process was built around these
people since the Selectmen had been inattentive to the desires of the Planning Board to have things enforced and if they could not have that key position of enforcement enforced, then the Board would be back to a way where they will do it. He added that the Road Agent was a person and in the field was unlikely to hold the proper enforcement and rather base it on his own experience of what worked and what did not, regardless of the regulations. Peter Hogan stated that in the past the Board was more willing to take the heat where a Town employee (Road Agent or Building Inspector) was not. In addition the grades were not being inspected for compliance by the Road Agent as he said he only looked at the road entrance. Don Duhaime asked if the Fire Chief was qualified per NFPA to look at driveway grades. Douglas Hill noted that the Fire Chief could always waive the grade anyway per NFPA.
The Chairman stated that the second issue that had been clarified through this discussion was the chronology of how the issue evolved in the first place. He added that the last topic was who would be assigned to certain tasks per the NFPA. Douglas Hill asked if the Fire Chief was aware of what the Board was considering. The Coordinator replied that there had been a brief discussion with the Building Inspector, however, before the other parties were invited for the discussion there should probably be a brief one on one overview. She noted, however, that they were coming to the point where there may not be a choice of who would be the responsible entity and it was unclear who the Fire Chief could designate as his designee. Peter Hogan noted to Douglas Hill
that no towns in New Hampshire abided by the NFPA requirements for driveways and they were unfortunate enough to stumble across it given the Inkberry driveway issue. He felt that as a Board they had to be careful in making rules and regulations for exceptions and added that the Board should take interest in the interior of the lot for driveways in consideration of safety equipment. The Chairman felt that this was where the Fire Chief could come into the mix. Douglas Hill thought that in principle this sounded appropriate but questioned whether he would be knowledgeable on slope issues, etc. The Board questioned when the 10% requirement came into play. The Coordinator replied that the Town's 10% requirement was put in place in 2002 with input from the Road Agent, Fire Department, etc., and hinged on the fact that the remaining land in New Boston that was available for subdivision was not as good anymore. She noted that according to Town Counsel
the 10% requirement exists currently under NFPA. The Chairman asked why, if the Fire Chief was driving that requirement but not enforcing it, it should be required at all. He added that for driveways that looked like they would be an issue an engineered plan and As Built plan could be required as was the case now and for those that looked satisfactory then a simple inspection could be given. The Chairman further added that if enforcement using the checklists seemed arbitrary or unreasonable, he proposed the applicant could approach the Selectmen if it was found post inspection that the driveway did not comply.
Douglas Hill stated that he felt the current Driveway Regulations were fine from his standpoint as a builder and that although they could be cleaned up a bit he did not understand why the Fire Chief should be involved. The Chairman noted that Town Counsel had explained that the Board could not act as judge and jury regarding driveway regulations and compliance. Peter Hogan noted that Town Counsel may have been under the assumption that the Board was guiding the design process of the driveways, which they were not, and that could be a critical fault in his argument. Instead the Board was saying that the applicant needed to submit a plan in cases where the Board did not think a driveway would meet compliance. The Chairman thought that this was a pointed question that
should be put to Town Counsel as he did not think this was how Town Counsel had explained the issue. The Coordinator explained that the plans were designed based on regulations put into effect by the Planning Board so it did not matter who designed the plan and an applicant would then go to an enforcement person for appeal, not the Board and then if, for example, the Building Inspector said the plans did not comply they would come back to the Board to appeal the decision of the Board’s designee. Peter Hogan clarified that the Board should then not be confirming compliance on new roads either. The Coordinator and Don Duhaime stated that the Board did not do this, the Town Engineer did this according to As Builts. Peter Hogan asked why the Board did not have the Town Engineer inspect driveways also and make it a condition of approval. The Coordinator replied that in the past the Board had not been in favor of this as it would have cost the
applicant more money. Douglas Hill was more in favor of this option than constructing a driveway before a Building Permit was issued. Peter Hogan still wanted to hold to requiring grade percentage for certain problematic driveways before Building Permits were issued. The Coordinator thought that a milestone checklist would be helpful for the Town Engineer or whoever performed the inspections rather than waiting until installation was complete. Peter Hogan wanted someone with an interest in the Town to look at a driveway’s rough grade before the Building Permit was issued.
Dave Woodbury asked if the Board could agree that the jurisdiction of the curb cut was strictly the Road Agent’s or was it shared in some fashion with the Planning Board. The Chairman thought that it was exclusively the Road Agent. The Coordinator clarified that it was exclusively the Planning Board and designated to the Road Agent. She added that if the Board wished to do the issuing of the permit as some towns did it would be necessary for code enforcement to cross check, however, the Road Agent inspected the curb cuts currently in the Town’s case. Dave Woodbury stated that in regard to subdivisions the jurisdiction the Board held in considering of the NFPA seemed inconsistent, therefore, should the Subdivision Regulations be amended to give
jurisdiction to the Fire Chief? He continued that in regard to an old lot did NFPA trump the existing regulations if all was consistent? The Chairman felt the distinction came on lots and lots of record for subdivision and site plans where the only thing the Planning Board had the ability to enforce was the Stormwater Management Plan and the 10% referred back to NFPA in both cases. Dave Woodbury asked the Coordinator if this was her understanding to be the case where there were no inconsistent or overlapping items. The Coordinator agreed with the Chairman's summary.
The Coordinator noted that if the Board chose not to follow Town Counsel’s advice the separate process still needed to be laid out properly for existing lots and new lots and site plans, get inspections away from the Board to enforcement consults and the Subdivision Regulations needed to be revised so they were not contradicting the Driveway Regulations. She explained that it was not necessarily a good idea for the Town to ignore the fact that the Fire Chief should be involved per NFPA. Peter Hogan noted that anyone who challenged the NFPA was risking that they might need to comply to a 22’ wide driveway requirement. The Chairman noted that the width was waivable by the Fire Chief. The Coordinator asked if the Board would specify on a subdivision plan,
driveway permit and notice of decision, that the driveway should be constructed from the right-of-way to the house as that was the only way the Board would not run into the same issues again. Peter Hogan added that they also needed to specify which regulations would hold, those in effect at the time of the approval or when the driveway was constructed. The Board clarified that engineered plans would be required for driveways that were deemed to have a design/grade issue at the time of the Driveway Permit and before the Building Permit.
Don Duhaime thought that all the time spent on the few driveways that were causing issues were distracting them from other issues on the sites and he felt the Board should wash their hands of driveways, fix the regulations, and let the Road Agent and Building Inspector do their jobs. Douglas Hill thought that the Board could still wash their hands of the issue by not being the compliance source. He felt the Board was on top of things with the Road Agent as their designee and the Building Inspector as code enforcement. Peter Hogan felt the Board should continue with requiring the As-Builts as needed but have the Building Inspector do compliance. He added that he liked the option of having a finished grade pre- Building Permit so that there was a reasonable expectation
that a driveway could be built correctly before a foundation was installed. The Chairman clarified that this was already accomplished by the plan itself. Peter Hogan agreed and corrected his misstatement by saying that he wanted to assure that a driveway was at the prescribed As-Built before the foundation was in. Douglas Hill felt that in that case if the Board did not make an applicant do a second As-Built once the driveway was done it was like giving them a free pass to finish it as they saw fit. He reiterated that it was only 1% of the driveways that presented an issue. Peter Hogan thought that having the same person working with the CO and the grade as the one issuing the permit with the As-Built in hand, that is, the Building Inspector, was a good way to start. Douglas Hill agreed. Peter Hogan added that he would be happy not referencing NFPA as they were not requiring that driveways be built to it and since the Fire Chief was the
only one who could waive NFPA the Board would be breaking new ground in that everyone would need an exception. Douglas Hill agreed. The Chairman felt that NFPA offered the legal basis to get the requirements such as the grade and arguably, that was the law. He added that the other option was to not follow the law and do what they had been doing for several years. Douglas Hill stated that he had nothing against the Fire Chief but felt it would just be adding another responsibility for him.
The Chairman wanted to focus on the approval segment of the plan where the legally correct person reviewed the Driveway Application for width grade, etc., and once the application was approved and construction began it should all go to the Building Inspector. Peter Hogan did not think anyone but the Planning Board could accept the plan for an engineered driveway. The Coordinator explained that the whole idea of adding the Fire Chief into the mix was because the Planning Board was not legally authorized to have jurisdiction over the interior of the lot and only had jurisdiction over Stormwater Management. Don Duhaime thought the process needed the input of the other entities first before they could move ahead. The Coordinator stated that the Board first needed to
understand the process before they brought in the Fire Chief and the Building Inspector for discussion. Don Duhaime felt that the Board should stay with the Town responsibility portion of driveways, i.e., not the interior of the lot. The Chairman felt that if this was the case than the 10% maximum grade requirement, guard rails, widths, should be dropped.
Don Duhaime replied that these were all important things but they should be mandated by entities other than the Board. The Chairman stated that this was what Town Counsel was suggesting which was to give the enforcement to the Fire Chief. Douglas Hill thought that the Town had a good system for driveways that had evolved through a long process and felt that scrapping everything would create more issues. Don Duhaime stated that he did not disagree with what was in place but the Board was getting far too involved in the compliance/ enforcement for the driveway. He suggested, therefore, keeping the safety requirements and letting the Building Inspector do what he needed to do. Peter Hogan felt that it had been stated previously that this would not work. Dave Woodbury thought that Peter Hogan, Don Duhaime
and Douglas Hill seemed to have a similar opinion and needed to come together with a succinct statement. Peter Hogan and Douglas Hill wanted the Planning Assistant’s opinion as she dealt with the driveway issue on a daily basis. The Planning Assistant stated that without the proper training the enforcement aspect for driveways would be a big issue for the parties that would be involved. Peter Hogan thought that if the compliance checker was armed with an 8’ digital stick it would not be that difficult. He thought that if the Planning Board continued approving the driveways and then handed them off to the Building Inspector to deal with however he saw fit, if he then ran into problems with installation they would be his problems to fix.
The Chairman clarified that the Board was in agreement that they were not going to require grade installation of the driveway prior to the Building Permit. Peter Hogan agreed that it would go back to the Building Inspector if the grade exceeded the maximum. Douglas Hill felt that this would be easily noted on the As-Built. Dave Woodbury clarified that the Board would be ignoring the NFPA. The Chairman stated that if so, the Board knew they would have no legal basis for their requirements. Don Duhaime stated that the Fire Chief had no background for certain requirements. The Chairman stated that he did not need any because he was only verifying the application. Douglas Hill disagreed and felt that the Fire Chief would need to be involved whether
guard rails were needed and items were covered, not just on the plan, as the Board did now. The Chairman asked Peter Hogan where he derived the basis for having the Driveway Regulations. Peter Hogan replied that it was NFPA but they should not reference that. Dave Woodbury asked the role of the NFPA in the scheme that they were devising. The Chairman replied that they were going to ignore it. Peter Hogan noted that the Town’s driveways were more in compliance than those of many other towns in the State. The Chairman clarified that he felt the way to solve both issues was that when the Board was happy with the plan and the Driveway Application was completed it needed to go to the Fire Chief. Douglas Hill noted that the downside to having the Fire Chief oversee the process was that he could refuse to waive the NFPA requirement for a 22’ width on driveways.
The Chairman wanted the Board to try to reach some agreement at the next meeting before bringing other Town departments into the discussion. The Board agreed.
Don Duhaime MOVED to adjourn at 8:00 p.m. Peter Hogan seconded the motion
and it PASSED unanimously.
Respectfully submitted,
Suzanne O’Brien
Recording Clerk
Minutes Approved:
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