New Boston, NH - Planning Board Minutes 12/22/2009

Planning Board Minutes 12/22/2009

TOWN OF NEW BOSTON

NEW BOSTON PLANNING BOARD

Minutes of December 22, 2009

The meeting was called to order at 6:30 p.m. by Chairman Stu Lewin. Present were regular member Don Duhaime, alternates Mark Suennen and Dean Mehlhorn, and Ex-officio David Woodbury. Also present were Planning Coordinator Nic Strong, Planning Board Assistant Shannon Silver and Recording Clerk Valerie Diaz.

Present in the audience for all or part of the meeting were Bob Todd, LLS, Charles and Rachel Swinford, Jim Barnett, and Jon Willard.

SWINFORD, CHARLES & RACHEL

Submission of Application/Public Hearing/Major Subdivision/2 Lots

Location: 292 Tucker Mill Road

Tax Map/Lot #2/15

Residential-Agricultural “R-A” District

The Chairman read the public hearing notice. Present in the audience were Charles and Rachel Swinford and Bob Todd, LLS. The Chairman seated Mark Suennen and Dean Mehlhorn as full voting members, in Peter Hogan and Douglas Hill’s absence.

The Chairman stated that an application had been submitted in the above-referenced subdivision. He asked Bob Todd, LLS, to begin his presentation to the Board.

Bob Todd, LLS, stated that he represented Charles and Rachel Swinford. He stated that he had a revised set of plans to submit for a substitute of the second sheet of the application that addressed a pre-engineered ISWMP.

Bob Todd, LLS, indicated that he was submitting two waivers, one for the 1”=500 scale locus plan and the second for the ISWMP. He continued that he also had a couple of supplements to the application. The first supplement addressed proposed language in the deed regarding compliance with the ISWMP. The second supplement also addressed proposed language in the deed with regard to the septic system.

Bob Todd, LLS, stated that the property was located on Tucker Mill Road in the north central part of New Boston, adding that the driveway was about 2,000’ south of the Weare town line. He continued that the lot was situated in an area of large lots that was adjacent to conservation land. He indicated on the map the locations of the specific conservation land owed by the PLC and a large parcel owned by Shirley Sullivan. He pointed out the location of a residential lot between the boundary line and the road. He also noted that a large lot residential subdivision was located to the south of the property. He pointed out the location of Peacock Brook that ran through the property, northwest to southeast. He added that Peacock Brook joined the Middle Branch of the Piscataquog at a point southeast of the property. He stated that the frontage for the lot was on Tucker Mill Road which was a Class V highway gravel surface. He indicated that one house, classified as a historic dwelling, one barn, and two out buildings existed on the 40 acre lot. He pointed out the location of the existing driveway that comes off Tucker Mill Road. He indicated on the map the location of the cleared areas as well as a four acre open field. He noted that the remainder of the lot was wooded. He stated that the land form for the property was a drumlin which was typical for the northern part of New Boston. He noted that the property had Paxton soil with a 30” perched water table. He continued that the soil was more than 10’ feet deep to the bedrock. He stated that the soil was fine/sandy loam and perked at 6 minutes per inch. He noted that the soil was adequate for the proposed residential development. He advised the Board that the applicants were proposing to create one back lot. He explained that the applicants planned to sell the existing house on the property and build a new house on the 5.5 acre lot being created. He stated that the driveway would be shared for the existing house and the proposed lot. He went on to state that the 5.5 acre lot was approximately 50% open land. He also noted that the lot had a southerly facing slope over the drumlin which did not inhibit surrounding views. He indicated that a wetland buffer bordered the property line, flowed off onto the adjacent subdivision, and drained into Peacock Brook. Using the map Bob Todd pointed out the location of an additional wetland area that flowed easterly on the property that drained into Peacock Brook.

Bob Todd, LLS, noted that the location of the driveway posed a potential problem with the existing septic system. He explained that the proposed common driveway would end and the new driveway would continue to the proposed lot 80’ from the edge of Tucker Mill Road. He continued that the 50’ strip would run across the existing septic system. He noted that it was the applicant’s intention to burden the existing lot to move the septic system to a new location should it fail or when it becomes too small to service an expansion of the living space at the existing home. He stated that the proposed driveway would be in accordance with the updated driveway regulations and submitted a driveway application. He stated that a question arose with the Board with regard to the frontage of the back lot. He directed the Board’s attention to Section 202.4 of the New Boston Zoning Ordinance and stated that a back lot is required to have 50’ of frontage. It was Bob Todd’s opinion that the requirement of 50’ was a minimum. He explained that in the past the width of the access way had never varied, however, the frontage has maintained at least 50’ but has been larger in some cases. He noted that with regard to the proposed driveway, having exactly 50’ would create an angle point in the access way that he believed was not be as facilitative as it was to allow the frontage to be greater than 50’ but maintain the 50’ strip onto the property. The Chairman asked for the location of the access strip. Bob Todd pointed out the location of the access strip on the map. He stated that the frontage for the proposed lot was 76’ wide rather than the 50’ and also noted that the access strip was 50’ wide. He added that the proposed driveway would be functional and did not present any problems. He stated that the building site and the location of the proposed driveway had critical 15% slopes. He also indicated that there were a few areas that had 25% slopes. He noted that the remaining portion of the lot had less than 15% grade. He stated that the monuments had been set and were ready for inspection. The Chairman asked if the proposed driveway plans created the required 10% slope. Bob Todd answered yes. He stated that a Pre-Engineered ISWMP had been completed along with the application of BMPs. He noted that the installation of an orange safety fence would be completed paralleling the boundary line. He pointed out the location of the septic system on the map and stated that a septic system design had been completed. He also pointed out the location of the proposed well and tractor shed. He invited questions from the Board.

David Woodbury noted that the location of the back lot appeared to be adjacent to the existing property. He inquired whether or not the lot could be considered a back lot even though it was not behind the front lot. Bob Todd, LLS, clarified that the lot that was in front of the back lot was the lot that was considered to be the front lot to the proposed back lot. David Woodbury stated that the applicant was not the current owner of the front lot that Bob Todd, LLS, was referring to. Bob Todd, LLS, stated that it was not necessary for the applicant to be the owner of the front lot in order to create the back lot. The Coordinator also stated that a back lot does not need to be behind a front lot in the pending subdivision. She continued that the back lot can be behind an existing front lot.

The Chairman stated that the Board had previously discussed the issue regarding the 50’ frontage. He asked the Coordinator what the Board had decided the frontage needed to be for the previously discussed subdivision. The Coordinator indicated that the Board had decided to require 50’ for the frontage. The Chairman asked Bob Todd, LLS, if a requirement of a 50’ limit for the frontage would create a jog in the frontage. Bob Todd, LLS, answered that it would create a jog and the entrance way would need to be reconstructed. Don Duhaime asked if the lot had 50’ of frontage on Tucker Mill Road. Bob Todd, LLS, answered that the lot would have 76’ of frontage on Tucker Mill Road because of an angle point in the property line. The Chairman pointed out the frontage and jog to Don Duhaime on the map.

The Chairman asked the Board for any questions or comments; there were no further questions or comments.

Bob Todd, LLS, added that the proposed lot did not have any flood prone areas. He also noted that the lot was not subject to the Comprehensive Shoreland Protection Act because Peacock Brook was not a fourth order stream.

The Chairman stated that the Board needed to act on the applicant’s Traffic, Fiscal, and Environmental Impact Studies waiver requests. He asked Bob Todd, LLS, to explain his reasoning for the waivers. Bob Todd, LLS, stated that the subdivision application proposed to create one new residential lot which would not significantly impact traffic on Tucker Mill Road. He continued that the addition of a single family dwelling would not have a noticeable fiscal or environmental impact on the Town of New Boston. The Chairman asked for clarification on what generally was studied as part of an Environmental Impact Study. The Coordinator stated that vegetation, wildlife, how it fit into the neighborhood were reviewed with an Environmental Impact Study. The Chairman stated that he agreed with the applicant’s request for waivers of the Fiscal and Traffic Impact Studies, however, he was concerned with aspects of the runoff and asked Bob Todd, LLS, if an increase of runoff was anticipated with the new construction. Bob Todd, LLS, answered that the runoff would be filtered by over 300’ of vegetation. He also noted that the other area where runoff was most likely to occur would not drain onto the adjacent lot. He explained that the Paxton soil was a Group 3 soil which was middle of the road in terms of infiltration capacity.

The Chairman asked for comments from the Board on requiring an Environmental Impact Study to be completed. Mark Suennen asked for the stream classification of Peacock Brook. Bob Todd, LLS, answered that it was classified as Rivers of the US. It was Mark Suennen’s opinion that an Environmental Impact Study was not out of the question if the flow off the property would drain into the wetlands and the wetlands were connected to the river. He continued that the study would most likely produce results that suggested there would be no impact, however, he believed it was important to have the results in writing.

The Chairman asked Mark Suennen for his opinion on the Fiscal and Traffic Impact Study waivers. Mark Suennen stated that he did not have an issue waiving the Fiscal and Traffic Impact Study waivers. Don Duhaime agreed with Mark Suennen.

The Chairman asked Don Duhaime for his opinion on Environmental Impact Study waiver. Don Duhaime believed an Environmental Impact Study should be completed.

The Chairman asked for David Woodbury’s opinion regarding the waivers. David Woodbury stated that he would agree to waive the Traffic and Fiscal Impact Study waivers. He questioned whether it was necessary to require the applicant to complete the Environmental Impact Study. He continued that he would like to know more of a reason why the study should be completed prior to require the applicant to do so. Mark Suennen stated that it was the burden of the applicant to prove that the Environmental Impact Study was not needed rather than the Board having to prove why it was needed. He added that the waiver as written did not prove to him that it was not necessary to have an Environmental Impact Study. The Chairman stated that the explanation that Bob Todd, LLS, had given to the Board provided more information as to why an Environmental Impact Study was not needed than the written waiver that was submitted. Bob Todd, LLS, stated that should he add his justification into the requested waiver it would state that the runoff from the development would go into the wetland and would continue to be treated by wetlands until it reached its point of discharge into Peacock Brook which would be satisfactory. The Chairman added that he would like the Bob Todd’s explanation of the 300’ buffer that filtered the runoff that drained into the adjacent lot added as well. Rachel Swinford noted that the front lot’s location was elevated. Bob Todd, LLS, stated that he was unsure of where the runoff that drained onto the adjacent property discharged. He added that he could look into that matter.

The Chairman asked Dean Mehlhorn for his comments. It was Dean Mehlhorn’s opinion that the Environmental Impact Study was not needed because it was a single house lot as opposed to a full subdivision.

The Chairman addressed the audience for abutter’s questions or comments. Jim Barnett of 332 Tucker Mill Road stated that he was an abutter to the proposed subdivision. He asked if this was the first hearing on the matter. The Chairman answered yes and added that the hearing was for the submission of the application. Jim Barnett inquired as to the type of home that would be constructed. Rachel Swinford answered that she intended to build a 1 ½ story cape. Jim Barnett asked if there were future plans for development near the location of his property line. Rachel Swinford answered that she was hoping to sell the remaining lot as is and noted that she would not, therefore, have any say in future development as she would not be the owner. Jim Barnett pointed to the map and asked Bob Todd, LLS, to confirm the location that he believed to be the Barss lot. Bob Todd, LLS, confirmed the location. The Chairman asked for any further questions from Jim Barnett; he did not have any further questions.

Mark Suennen MOVED to accept the waiver and decline the receipt of a Traffic Study and a Fiscal Study for this application. DISCUSSION: David Woodbury asked if the Board was voting to accept the application. Mark Suennen clarified that the motion was made to accept the waiver and decline the Traffic and Fiscal Studies. The Chairman added that the motion did not include acceptance of the Environmental Impact Studies. Don Duhaime seconded the motion. DISCUSSION: The Chairman stated for clarification that the motion was made to accept the waiver requests for the Traffic Impact Study and Fiscal Impact Study. David Woodbury suggested addressing the studies individually because he was inclined to vote against the motion even though he was not against the first two waiver requests because of the wording of the motion. The Chairman asked the Coordinator if Mark Suennen could withdraw his motion. Mark Suennen asked if David Woodbury could amend his motion. The Coordinator stated David Woodbury could not amend the motion and Mark Suennen was required to make any amendments. Mark Suennen indicated that he would restate his motion.

Mark Suennen MOVED to accept the waiver for the Traffic Impact Study and decline acceptance of a Traffic Impact Study. Don Duhaime seconded the motion and it PASSED unanimously.

Mark Suennen MOVED to accept the waiver to decline a Fiscal Impact Study. Don Duhaime seconded the motion and it PASSED unanimously.

The Chairman asked the Mark Suennen if he believed the applicant should complete an Environmental Impact Study or if he would be satisfied with the applicant adding language to his waiver that explained his reasons for not needing a study. Mark Suennen believed that with a little bit of research and a little bit more language in the letter he would be satisfied and approve the waiver. He continued that at this point he was not given enough proof to waive the study.

David Woodbury suggested letting the matter rest if there was no requirement for the motion to be made tonight. The Chairman asked the Coordinator if voting on the waiver at the next meeting would affect any deadlines. The Coordinator indicated that it would affect the deadline for acceptance of the application. The Chairman explained that the next meeting to act on the acceptance of the application would be beyond the statutory deadline. David Woodbury asked if the requirement could be waived by the applicant. Mark Suennen and the Chairman answered no. The Chairman stated that the Board would need to waive the Environmental Impact Study or deny the application as incomplete. He asked the Coordinator if a one page explanation of the Environmental Impact satisfy the requirement for the study. The Coordinator explained that the Subdivision Regulations has a section of what the studies are but does not have a lot of detail. She continued that most studies that the office received were fairly lengthly. Mark Suennen stated that it was not required to produce a long report and that the applicant could submit a letter that was signed by a person who had the authority to deem that the lot did not pose any environmental impact. The Chairman added that the letter should contain an explanation of the reasons why. Bob Todd, LLS, asked what the qualifications would be for the person who would generate and sign off on such a letter. Mark Suennen suggested a hydrologist or a hydro-geologist. The Coordinator stated that a wetland scientist could be used. Bob Todd, LLS, asked if his office would be able to create the letter. The Coordinator believed that Bob Todd’s office could create the letter.

David Woodbury asked what the upside or downside to voting the application as incomplete. The Chairman answered that the downside would be that the application would need to be re-noticed upon resubmission. He added that the applicant would be responsible for paying the noticing fees again. The Chairman stated that the Board would be able to waive the fees for resubmitting the application but noted that the re-noticing fees could not be waived. David Woodbury stated that if was there was substantial sentiment for requiring the applicant to provide more application the Board could vote the application complete and require the applicant to produce an Environmental Impact Study. The Chairman clarified that if the Board required an Environmental Impact Study the application could not be accepted as complete because the study had not been completed. Bob Todd, LLS, noted that previous subdivisions where waivers had not been approved by the Board had the application accepted as substantially complete.

The Chairman stated that the Board could grant the waiver and accept the application as complete or not grant the waiver, therefore, making the application incomplete. The Coordinator advised that the Board could also accept the application as complete with the understanding that the additional information needed to be submitted. The Chairman advised the Board that they could vote to accept the application as complete with the understanding that the waiver for the Environmental Impact Study waiver had been denied and the previously discussed information would need to be submitted. Bob Todd, LLS, stated that he believed the aforementioned option was reasonable. David Woodbury asked if the Board had described in enough detail the letter that would be submitted in lieu of the Environmental Impact Study. Bob Todd, LLS, answered that he would address the existence of wetlands downstream before any runoff reaches the river, what effect the wetlands would have on the treatment of the runoff, and what sediments, chemicals, and organic matter would be absorbed before reaching the brook. The Chairman advised that a paragraph that addressed the other wetland should be added with an explanation why an Environmental Impact Study was not needed. David Woodbury asked if a time limit would be set for submittal of the letter. The Chairman stated that a minimum of at least seven days prior to the next scheduled hearing would be appropriate.

The Chairman asked for any questions or comments; there were no further questions or comments.

Mark Suennen MOVED to deny the waiver for receipt of the Environmental Impact Study with the expectation that we will receive it within seven days prior to the next hearing. Don Duhaime seconded the motion. DISCUSSION: David Woodbury asked for clarification of the motion. The Chairman clarified that a motion was made to deny the Environmental Impact Study and submittal was expected seven days prior to the next hearing. The motion PASSED unanimously.

David Woodbury MOVED to accept the application for Major Subdivision/2 Lots, 292 Tucker Mill Road, Tax/Map Lot #2/15 Residential-Agricultural “R-A” District, with the caveat that the letter in lieu of the Environmental Impact Study be submitted seven days prior to the next hearing. Dean Mehlhorn seconded the motion and it PASSED unanimously.

The Chairman stated that the deadline for Board action was February 25, 2010. A site walk was scheduled for January 9, 2010, at 8:30 a.m.

David Woodbury MOVED to adjourn the application of Charles and Rachel Swinford, Major Subdivision/2 Lots, 292 Tucker Mill Road, Tax/Map Lot #2/15 Residential-Agricultural “R-A” District, to January 26, 2010, at 8:00 p.m.. Don Duhaime seconded the motion and it PASSED unanimously.

The Chairman advised Jim Barnett that he would no longer being getting notices of when hearings on this matter will be held because tonight’s adjournment was considered notice of the next hearing. He stated that the next meeting would take place on January 26, 2010, at 8:00 p.m. Jim Barnett asked if the site walk was open to the public. The Chairman answered that he would need to seek permission from the property owners to attend. Rachel Swinford stated that Jim Barnett was welcome to come by her property anytime.

Public Hearing on Amendments to the Building Code proposed by the Planning Board

The Chairman opened the public hearing and advised that he would not be reading the entire public hearing notice or the proposed amendments due to lack of interested parties in the audience. He stated that copies of the proposed amendments were available for the public.

The Chairman addressed the two proposed amendments to the Building Code. He directed the Board to the last page of the proposed amendments. He asked the Board for any questions or comments; there were no questions or comments. The Board agreed to move the two amendments forward to the March 2010 ballot.

The Chairman advised that the Board could vote to accept the amendment as is or revote to defer to a second public hearing.

Don Duhaime MOVED to accept the proposed amendment as presented at this public hearing for a ballot vote in March of 2010. David Woodbury seconded the motion and it PASSED unanimously.

Public Hearing on Amendment to the Zoning Ordinance proposed by the Planning Board

The Chairman read the public hearing notice. He noted that the Board had discussed the proposed amendments on multiple previous occassions. He advised that the Board had received a letter from Dwight D. Sowerby, Esq., on the proposed amendments. The Board agreed to recess to read the letter from counsel.

The Board took a ten minute recess during which time Jon Willard arrived at the

meeting.

Mark Suennen MOVED to release the letter from Dwight D. Sowerby, Esq., to Jon Willard, Chairman of the Multi-Family Workforce Housing Committee. Dean Mehlhorn seconded the motion and it PASSED unanimously.

The Chairman stated the Board would take another ten minute recess to allow Jon

Willard to read the letter from Dwight D. Sowerby, Esquire.

The Board took another ten minute recess.

The Chairman stated that the Board had a chance to read the letter from Dwight D. Sowerby, Esquire. Mark Suennen referenced a sentence in Dwight D. Sowerby, Esq.’s, letter that read as follows, “There are at least two bills pending introduction in the new session of the legislature to amend the statute.” He pointed out that it did not make sense for the Board to move forward with proposed amendment #1 as it could be amended in the next session of the legislature. The Chairman agreed with Mark Suennen and added that it appeared that the section would need some major reworking. Mark Suennen stated that a lot of the questions and concerns were legal dancing because the Dwight D. Sowerby, Esq., could not put into writing that the proposed language would protect the town. He continued that the language was so vague that it was difficult for the Committee to create language that would stick. It was his opinion that Dwight D. Sowerby Esq. was conveying to the Board that he could not defend the proposed amendment.

David Woodbury noted that the letter appeared to have been received on today’s date. He stated that there was not enough time to give the letter adequate thought to make any decisions this evening. The Chairman stated that the Board received the letter less than an hour before reading it. David Woodbury stated that it was safe to assume that nobody was prepared to know what the parameters of the letter were. The Chairman agreed that David Woodbury had made a fair assessment.

David Woodbury stated that Mark Suennen’s comments were well taken and that it did not seem plausible to integrate the language from the letter into the proposed amendments at this evening’s meeting. The Chairman explained that if the Board decided to make changes to proposed amendments they would need to be completed in order for it to be noticed by next Wednesday. He indicated that in light of the time restrictions he was unsure over the course of the next week what substantive changes could be made. David Woodbury suggested adopting what had been previously been proposed and reassess in a year if any changes should be made. The Chairman stated that the Board could also decide to not move forward with proposed amendment #1 that would establish the new overlay district. He continued that the risk in not moving proposed amendment #1 forward would be that the Town was not complying with the statutory requirements. He noted that issues could arise with the adoption of proposed amendment #1 because it may not be defendable and workable. David Woodbury believed that the better alternative was to have something in place that was not perfect but complied with the statute than not complying with the statute for one year. The Chairman stated that he was unsure which option was better but just wanted to list all options. David Woodbury asked what type of trouble the Board could get into during the next year, should they decide to adopt the language that was already proposed. The Chairman stated that the issue was putting regulations into place that would allow a developer to submit an application and go through the process of utilizing the proposed overlay district. He continued that should the Board not move forward with proposed amendment #1, a developer would only be allowed to develop with the regulations as they currently exist. Don Duhaime commented that if the legislature was going to reinvent the wheel why should the Planning Board adopt the amendment that is going to need to be amended again next year. Mark Suennen answered that there was not any language that stated the legislature was going to reinvent the workforce housing statute. He noted that the letter was vague about the two bills pending legislation. He added that the two bills could address extending the deadline. Don Duhaime stated that he had spoken with a legislator and was told that changes were going to be made although he was not told the specific changes.

The Chairman asked for any other questions or comments. The Coordinator stated that should the statute continue to read that by January 1, 2010, an ordinance should be in place and the Town does not have such an ordinance the Town takes the risk of having the Builder’s Remedy invoked. David Woodbury stated that it was safe to say that by January 1, 2010, things would not be any different at the legislative level than they were today. Mark Suennen stated that the Builder’s Remedy could be used at any point. He continued that only if an applicant had declared that they were providing workforce housing and that the Board either by rejecting, by applying administrative burden on the application, and/or additional costs that had negated the applicant’s ability to build workforce housing could the town be sued using the Builder’s Remedy. He added the Town was not more or less liable by not having the overlay district in place. It was Jon Willard’s opinion that Dwight D. Sowerby, Esq., believed that the language was so vague that he was unsure of how it would play out. He continued that if by January 1, 2010, the Town did not implement anything that someone could sue the Town based on all the information that had been provided by the Committee with regard to barriers of workforce housing. He stated that a gentleman from NH Housing believed that “goodwill” was going be applied to towns that made an effort to breakdown barriers to workforce housing. Mark Suennen stated that should the town be sued it could be shown to the court that this process began in July 2009 and continued through November/December and based on legal opinion it was determined that further work was necessary and the amendments were not ready for the ballot. Jon Willard commented that after reading the letter from Dwight D. Sowerby, Esq., it appeared that he did not have all the information, i.e., the full audit, that provided explanations to the Committee’s recommendations.

The Chairman noted that he was not concerned with proposed amendments # 2 through 5. He indicated that his primary concern was proposed amendment #1 that established an overlay district. He noted that the Board had the option of stopping the amendment in its tracks now, accept it as it was now, or allow the Coordinator and Counsel to adjust the language in the amendment with a decision to be made to move forward at the next meeting. Don Duhaime stated that he was in favor of the Coordinator and Counsel working together to make the appropriate changes. The Coordinator noted that any changes from this evening’s discussion needed to be ready this evening to be posted by next Wednesday. David Woodbury did not believe any changes could be made given the time restrictions and holiday week. It was his opinion that the best option was to move the proposed amendment forward as is.

Jon Willard stated that after reading the letter from Dwight D. Sowerby, Esq., he believed that Dwight D. Sowerby, Esq., did not like the law as it was written. He continued that the law was being picked apart throughout the letter but the ordinances were not. Mark Suennen pointed out several instances where the letter addressed issues pertaining to the ordinances. The Coordinator pointed out that the recommendations were sent to counsel purely for his legal view of the Zoning Ordinance language. She continued that counsel did not need the background information of why the Committee made certain decisions. Mark Suennen stated that counsel was providing an unbiased legal opinion. The Coordinator believed it was possible to make some changes to the language this evening.

The Chairman stated that the three options the Board had were to stop the amendment from moving forward now, accept it as it was now, or come up with wording changes now that would be addressed at the next meeting at which point a vote would be taken to accept or stop the amendment. He stated that at a minimum the Board should at least look at incorporating some of Dwight D. Sowerby, Esq.’s, suggestions.

The Board agreed to incorporate the following suggestions from Dwight D. Sowerby, Esq., to the proposed amendments:

Adding a definition to Section 602 of the Zoning Ordinance for multi-family housing for the purpose of workforce housing developments.
Remove the title Conditional Use Permit for Workforce Housing and replace with Standards for Workforce Housing. Remove paragraph number 1. The letters a, b, c, and d would be replaced with numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11.
Replacing the language on page 2 of the proposed amendments sub-section iii with the following: “The deed restrictions shall limit the resale value of the units to not more than the purchase price or that price which would qualify the dwelling units under RSA 674:58-61, as may be amended, and applies at the time of resale whichever is greater. Any sale not meeting this standard may be enjoined.”
Removing the word “concurrent” and replacing it with “submitted” on page 3 of proposed amendments to what will become number 5.
Add a section entitled Waiver of Specific and General Conditions for ‘Workforce Housing’ project –

“The Planning Board is hereby empowered to approve a project and waive any or all of the above listed standards, but only when it has been demonstrated that construction of a ‘workforce housing project’, (as that term is defined below), is incapable of being feasibly constructed because of those standards for economic reasons. In making such a determination, however, the Planning Board shall not allow the construction of any project when the same will not comply with reasonable standards related to environmental protection, water supply, sanitary disposal, traffic safety, and fire and life safety protection. Further, the Board, in making such waiver, shall grant only the minimum waiver(s) demonstrated to be necessary to render the project economically feasible.

An applicant seeking to request a waiver under this section shall apply for the same to the Planning Board according to the procedure set forth in the Non-Residential Site Plan Review Regulations. When making that application, the applicant shall provide sufficient information to the Board to demonstrate the following, the burden for which shall be on the applicant:

The proposed project is incapable of being feasibly constructed within

the limitations identified in the specific and general criteria set forth in the above section of the ordinance for economic reasons and that the limitations do not permit any other sufficient realistic or reasonable opportunities to provide workforce housing; and,

The granting of waivers will result in the project being feasible, economically and will allow for the construction of ‘workforce housing’ units that are available to the target income group(s); and,
The applicant will identify the general and specific standards for which a waiver is being sought and will provide appropriate documentation to demonstrate the manner in which the application of such general or specific standards is causing the project to be incapable of being feasibly constructed for economic reasons; and,
The project design is such that it complies with all applicable standards related to environmental protection, water supply, sanitary disposal, traffic safety, and fire and life safety protection; and,
The project is ‘affordable’ within the meaning of this ordinance and/or the statutory workforce housing provisions found at RSA 674:58, et. seq.; and,
The applicant has provided a suitable mechanism to insure that the housing stock proposed to be constructed will be available to persons of the target income group for a period not less than 15 years.”

The Chairman restated the changes that would be incorporated into the proposed

amendments to the Zoning Ordinances. He indicated that the changes would be reviewed and voted upon at the next meeting. The Board agreed to incorporate the changes and review at the next meeting.

David Woodbury MOVED to incorporate the changes and reconsider amendment #1 at the next hearing on January 12, 2010. Don Duhaime seconded the motion and it PASSED.

Bob Todd, LLS, asked if the State and environmental requirements were correlated against the minimum lot sizes specified in the proposed amendments. Jon Willard answered yes and added that the Committee modeled the overlay after the R-1 district. He continued that a statement was made within the ordinance that all lots shall meet all other local, state and federal requirements. Bob Todd, LLS, stated that he attempted to reconcile the minimum lot size for 12 units assuming that the units could be 4 bedroom units which would be 7 acres. He continued that even under the best soil conditions with an onsite well it would not be possible for 7 acres to accommodate 12 units. Jon Willard stated that approval would not be granted in Bob Todd, LLS’s, situation and a larger lot size would be required.

Bob Todd, LLS, indicated that given the current requirements for the minimum width of a lot, a 12 unit lot would be 1,400 feet long. It was his opinion that the dimension of such a lot would not be desirable and historically the Board had discouraged a lot shaped like this. He added that there should be a sliding scale for the width of the lot as the number of units increased up to 12 so that the lot was more serviceable with less driveway. Jon Willard stated that information that Bob Todd, LLS, was referring to came from the R-1 District and noted that the criteria currently existed in the Zoning Ordinance. The Chairman asked for clarification that the situation that Bob Todd, LLS, posed would not be created. The Coordinator answered that Bob Todd, LLS’s, situation should not occur because it would function the way it currently does with the 200’ square being the frontage width. Bob Todd, LLS, stated that asked if a 7 acre lot with 12 units could have more than a 200’ width. The Coordinator answered yes. Bob Tood, LLS, stated that an applicant could choose to use the minimum of 200’ wide by 1,400’ long. The Coordinator stated that effectively Bob Todd, LLS’s, proposed situation could occur currently in any district but generally did not. Bob Todd, LLS, asked if the 12 units were attached. The Coordinator answered that the 12 units were intended to function as apartments and could all be in one building. She added that alternatively 4 buildings could be constructed with 3 units in each.

The Chairman asked for any further questions or comments; there were no further questions or comments. The Chairman advised the Board that with regard to the remaining proposed amendments a vote was required to either stop the amendment from going forward, move the amendment forward, or make changes and move to the next hearing for a vote.

David Woodbury MOVED that amendment #2 be proposed as presented at this public hearing for a ballot vote in March 2010. Don Duhaime seconded the motion and it PASSED.

David Woodbury MOVED that amendment #3 be proposed as presented at this public hearing for a ballot vote in March 2010. Dean Mehlhorn seconded the motion and it PASSED.

The Chairman asked the Board for their opinions on incorporating the suggested changes

Dwight D. Sowerby, Esq., to proposed amendment #4 that would replace the term “living space” with the term “conditioned space.” David Woodbury stated that previous meeting minutes would show that Ed Hunter, Building Inspector/Code Enforcement Officer, understood conditioned space to mean either heated or air conditioned. The Chairman stated that he had asked Ed Hunter, Building Inspector/Code Enforcement Officer, if the term conditioned space was better understood than living space and his answer was yes. David Woodbury stated that between the minutes of that meeting and the minutes of this meeting it should be clear as to the meaning of conditioned space.

David Woodbury MOVED that amendment #4 be proposed as presented at this public hearing for a ballot vote in March 2010. Don Duhaime seconded the motion and it PASSED.

David Woodbury stated that Counsel believed under the current proposed amendment there was a definition of a front yard and the proposed amendment would not have a definition of a front yard. David Woodbury did not believe that proposed Section 307 did not define any more or less than the amendment. The Chairman asked for any further questions or comments; no further questions or comments were made.

David Woodbury MOVED that amendment #5 be proposed as presented at this public hearing for a ballot vote in March 2010. Dean Mehlhorn seconded the motion and it PASSED.

The Chairman indicated that Dwight D. Sowerby, Esq., did not have any suggestions on proposed amendments #6, 7, 8, 9, 10, 11, 12, and 13.

David Woodbury MOVED that amendments #6 through #13, inclusive, be proposed as presented at this public hearing for a ballot vote in March 2010. Don Duhaime seconded the motion and it PASSED.

The Chairman stated that Dwight D. Sowerby, Esq., had made a suggestion with regard to the definition of terms “Home Occupation” and “Expanded Home Business” which were not defined in Section 602. The Coordinator stated that the term “Home Occupation” was used currently only in Open Space Developments. She continued that “Home Occupation” had a separate definition from “Home Business” because a “Home Occupation” was more minor than a “Home Business.” She continued that it had been brought to light that “Home Businesses” were not permitted in cluster developments in the R-A District. The Coordinator summarized that Attorney Sowerby’s recommendations sought clarification of the terms “Home Occupation” and “Expanded Home Business” by specifying their definitions within Section 602. David Woodbury asked if the term “Expanded Home Business” was defined anywhere. The Coordinator replied that the term “Expanded Home Business” was defined under “Expanded Home Business.” David Woodbury commented that the Board could place these definitions into Section 602. The Chairman asked if the term “Expanded Home Business” was defined within Section 602. The Coordinator answered yes. The Chairman stated that the change would be to add a definition of “Home Occupation” to Section 602 and use the words currently used in Section 401. The Chairman asked if the Board should remove the definition from Section 401. David Woodbury commented that it would be better to leave the definition within Section 401 and use the definition again in Section 602. The Chairman stated that he agreed but did not like having the same thing defined in two different places. The Coordinator asked if it would be best to define “Home Occupation” by referencing the definition in Section 401.2(f). David Woodbury agreed. The Coordinator explained that the definition would remain within Section 401 because it is the only place that permits “Home Occupation.” The Chairman summarized that the change to proposed amendment #14 would be to add a definition of “Home Occupation” in Section 602 referencing the definition of “Home Occupation” used in Section 401.2(f). The Chairman asked if there were any comments, questions or a motion to move the matter to the next meeting with the proposed change.

David Woodbury MOVED that amendment #14 be amended as discussed and moved to the second public hearing on January 12, 2010. Don Duhaime seconded the motion and it PASSED.

The Chairman noted that Dwight D. Sowerby, Esq., had no comments with regard to proposed amendments #15 and #16.

David Woodbury MOVED that amendments #15 and #16, inclusive, be proposed as presented at this public hearing for a ballot vote in March 2010. Don Duhaime seconded the motion and it PASSED.

The Chairman noted that Dwight D. Sowerby, Esq., reserved comment at a later date with regard to proposed amendment #17. The Chairman stated that the wording of the proposed amendment #17 came from the Southern New Hampshire Planning Commission and asked if the group had review from legal counsel. The Coordinator stated that the group did not but that the wording in the proposed amendment served to update it to the DES model. The Coordinator was of the opinion that Dwight D. Sowerby, Esq., did not like Conditional Use Permits. David Woodbury added that he did not believe that the proposed amendment called for any substantive changes.

David Woodbury MOVED that amendment #17 be proposed as presented at this public hearing for a ballot vote in March 2010. Don Duhaime seconded the motion and it PASSED.

The Chairman stated that there were two amendments to be reexamined by the Board, proposed amendment #1 and proposed amendment #14. The Chairman added that the Board would address the proposed amendments at 7:00 p.m. on January 12, 2010.

MISCELLANOUS BUSINESS AND CORRESPONDENCE FOR THE MEETING OF DECEMBER 22, 2009

2. Discussion, re: letter dated December 4, 2009, to Ed Hunter, Building Inspector and Planning Board, from Cheri Cywenski, re: shed placement in the Wetland Setback, 88A Colburn Road, Tax/Map Lot #1/44-CDX-1.

(Cheri Cywenski will be here to discuss with Board)

The Chairman asked the Coordinator to provide a synopsis of the above-referenced

matter. The Coordinator explained that the applicant sought permission to construct a shed

located within a designated wetland setback as the zoning ordinance permitted the Board to

allow at its discretion a non foundation structure placed within the set back. At the last meeting the Board had a few questions about how the proposed structure would be built.

The Chairman asked if there was a sketch plan. The Coordinator stated that no sketch plan was submitted by the applicant. The applicant explained that the structure was already built and would be transported to the site. The applicant further stated that a drawing had been submitted. The Coordinator commented that a drawing had not been submitted to the Board. The Chairman asked if the drawing was submitted to Ed Hunter, Building Inspector. The applicant replied that the drawing showed the wetland and property line. The Chairman replied that the drawing was not delivered to the Board and that the Board needed a moment to see if it could be located.

Discussion was suspended while the Planning Board Assistant searched for the drawing.

1. Approval of minutes of November 10, 2009, distributed by email.

Don Duhaime MOVED to approve the minutes of November 10, 2009, as written. David Woodbury seconded the motion and it PASSED. Dean Mehlhorn abstained.

David Woodbury, Don Duhaime, Stu Lewin – Aye.

3. Approved minutes from ZBA meeting 11/17/09, for the Board’s information.

The Coordinator noted that a final version was provided.

(Cheri Cywenski will be here to discuss with Board)

The Planning Board Assistant stated that she could not locate the sketch and thought it likely that the Building Inspector had taken the file with him. The Chairman asked if there was anything that could be used by the applicant to sketch on the white board. The applicant asked what the Board needed. The Chairman explained that the Board needed the information contained within the drawing concerning property lines and wetland set back information. Homer Sawtelle stated that the shed was prebuilt off site, 20’ wide x 12’ deep with a gambrel roof and center doors. He added that Ed Hunter, Building Inspector, advised that the proposed location of the shed was within the wetland setback and that a permit was needed. The Chairman asked if there was any clearing proposed. Homer Sawtelle explained that the shed would be set in an open space with no cutting. The Chairman asked if the structure would be set on blocks. Homer Sawtelle answered yes. The Chairman asked if a motion was required to permit the placement of the structure as described within the wetland setback and if the Board had set any precedent with regard to similar requests. The Coordinator explained that the only exception to date concerned the matter of the Dodge trailer where it was determined that a slab was not a foundation. The Chairman sought clarification that the slab in the Dodge matter was removable. The Coordinator answered yes. Don Duhaime asked of the height of the cinder block to be used by the applicant. Homer Sawtelle stated that the cinder block was eight inches high. The applicant added that the proposed location of the shed was very level and indicative of ledge.

Don Duhaime MOVED to allow the construction of the structure as described this evening, on blocks, within the designated setback. Dean Mehlhorn seconded the motion and it PASSED unanimously.

4a. Draft minutes from ZBA meeting 12/15/09, for the Board’s information.