Town of New Boston
Zoning Board of Adjustment
Meeting Minutes
03/15/05
Approved 04/19/05
Lull Road Corp, Inc. application for “Special Exception” to operate a gravel pit, map/lot 3/5, this is a continued hearing from 02/15/05.
Board members present: Chairman Craig, Vice Chairman Piper, Phil Consolini, Greg Mattison, Robert Todd, and Laura Todd, clerk. All members voting with the exception of Laura.
Chairman Craig opened the hearing @ 7:03 PM, asked the board to introduce themselves.
Harry Piper moved to accept the minutes from the 02/15/05 hearing (same applicant), 2nd by Phil Consolini, accepted.
Chairman Craig explained the procedure for this hearing. Applicant, municipalities, direct noticed abutters, then all others, then rebuts. He acknowledged he was not at the previous hearing, but had listened to the tapes of that hearing very carefully.
Robert Todd asked that the points made at the last hearing needed to be excluded at this hearing.. Dave Craig said it was unclear if the testimony that took place was at a public hearing, it was decided the points made would be considered.
Atty. Cleary summarized briefly, the parcel was 25.9 acres of 55 acre property zoned R/A, with an application for a gravel excavation under Special Exception. He acknowledged Bedford Design, Gove Environmental and Stephen Pershaw as giving testimony at previous hearing on criteria. He then reviewed the criteria. Said that subject property is not the area affected but the surrounding property. He presented a plan “Post Harvest Existing Treeline”, which showed harvested area and surrounding area, including the open pits. Again this is a limited exaction to 5 acres at a time with dust control measures taken, starting at the north of property to south. The minimum buffer to the closest residence is 700’, which will reduce noise. The required is 50’ buffer to property line and
150’ to dwelling. They expect to finish the project in 5 or 6 years and will have limited hours of operation. Next, he spoke to the Conservation Easement and scenic easements, which the Mardens did voluntarily. Lull Road Corp decided not to follow Mardens choice; they want to develop the property. They would however dedicate a 75’ Conservation Easement if a grantee is willing to accept.
Jim Gove of Gove Environmental Services spoke next. Using the “Post Harvest Existing Treeline” plan, he pointed out the no cutting areas near wetlands, saying no wetland were impacted from the cutting. Explained the drainage design, indicating the direction of the drainage, and addressing the concern of possible disruption of drainage back into the river. Stating that the water would continue to flow into the river after entering the detention ponds and then into the wetlands, not changing the amount of the natural flow. Next, he addressed the easement areas, conservation areas, scenic areas around this parcel, indicating them on same plan. Saying there were none to the north of the subject property and showed other uses with other pits, two pits in the area are larger that the proposed. He then showed the 75’ easement area the applicant proposed to offer. He went on to the concern that cutting would cause pollution to the river, using a U.S. Forest service study; cutting
can release nitrogen and phosphorus into the water. Phosphorous is the issue. Phosphorous is not released by the soil but by skidders trails, which actually erode and pick up sediments, which reach the water. He then reminded the board there had presented, temporary erosion controls, erosion control for spring, temporary erosion control for during construction, storm water pollution prevention plan and final plans. Pointed out there was no skidder trail right down to the water itself. Scenic value of the river and river view, was the next, he showed x-sections plans with several different points from the river. Each x-section showed pre and post conditions and the line of vision at 3’ height from the river.
Bob Todd asked what the vertical and horizontal scale of the map was. 1” = 30’ for both was the answer.
At each x-section the point of starting excavation from the river was shown, with 166’, 79’, 218’, 75’( 88’by tape), and 75’ ( 90’by tape) consecutively. During this presentation, he covered where a detention area would be created at the 79’ point. Why the peninsular is 218’, the esker area was the steepest and at 75’ at horizontal distance to the river, but by tape is 88’, and the narrow section of esker with the hemlock bog area, which is 90’ by tape. He stated no forest violation activity has occurred, they will maintain buffer, design so no discharge to river and keep scenic value. Concluded that the river would not be impacted.
Bob asked how far the excavation was from the wetland in x-section one. 120’
Dave Craig asked to be shown where the tree cutting the shortest distance from the river had happened. Gove showed an area where no gravel operation will occur, near the location of the existing house. Atty. Craig asked, if the applicant clear-cut right up to river in that location. Yes was the answer. What is the next closest clear cut to the river? Gove, closest is 75’ except in area by the house.
Dave Craig next asked about the retention pond at the rivers edge and where it would be directed. Dave Walker of Bedford Design said into the river. Dave Craig said no change in way runoff will go to the river, is that true. Dave Walker said just in this small area during excavation.
There was then discussion about whether the excavation would be visible from the opposite bank of the river. Tree cover should limit the view, so the trees should remain, but in the winter, it would be visible.
Dave Craig then asked about the alleged tree cutting violation. Jim Gove didn’t know.
Harry Piper then asked about the added or distracted drainage going back into the river, at last meeting is was stated that 400 gallons less would be going back into the river. Dave Walker said the runoff would go into the retention basin and would become drainage not runoff. DES asked them to hold as much as they could. DES is still reviewing the application. Jim Gove said the water budget is not changing.
Harry Piper question x-section 2, and the drainage area and if it was for excavation site or residential. What will happen after the excavation is finished? Dave Walker answered it will depend on the location of road, house sighting, etc.
Bob Todd then questioned the runoff at the river-facing slope of esker, which is going into river now; will ground water discharge at the toe of that esker decrease? J. Gove said no, they did a number of test pit out there to determine where seasonal high-water table was. So the actual area of apparent water will be below here. He then went into what happens with 40”- 44” of precipitation yearly. It sinks in, hits and taken in by vegetation, or runs off. Concluding there would be no change in ground water discharge.
Bob Todd said so there is less direct run-off, is that enough change to effect vegetation in narrow bank of wetlands. J. Gove then covered seepage and run-off.
Harry Piper asked Atty. Cleary what the applicant’s reaction would be if the Town of New Boston stopped through trucking on their roads. Cleary said his understanding of no through trucking was it effected destination of (A) to (B), it did not mean a property owner could no take a truck on the road from his property.
Atty. Cleary spoke to concerns of Norris Road @ Rte 114 and said all trucks will leave site and go left to Rte 77.
D. Craig asked if all trucks would then go through New Boston to Rte 13. That was not the Route described.
Timothy Golde said a full traffic impact study was done. He addressed 13 points at the hearing, which are contained in the report provided to the ZBA. He said they studied the intersections of Twin Bridge Road and Rte 114, Twin Bridge Road and Rte 77, as well as the entrance from site onto Twin Bridge Road. This study did site distance, counted cars, analyzed the worst scenario, took into account the number of accidents at the intersections, the type of project the applicant was proposing, etc. The full report can be found in the file.
Questions asked of Mr. Golde. Harry Piper asked how many this project would add to the 61 cars/trucks, at peak hour, turning left at the intersection of Rte 114 and Twin Bridge Road. Five was the answer. D. Craig asked, after doing the full traffic impact study are you recommending a left turn lane at Rte 114 and Twin Bridge Road. They do not feel it is warranted because of the project, but it would be good place for DOT to put one in. D. Craig asked if the ZBA could put a condition to require a lane be put in and the conclusion was probably not. D. Craig then asked if the applicant would put one in if it was found to be needed. There was discussion about fair share allocation.
Bob Todd asked if there was a purchase and sale agreement between Cliff Wilson and the applicant for the property to the north. Yes.
At 8:50PM, D. Craig announced a 5-minute break.
9:00 PM, D. Craig called the hearing to order. He invited the Municipalities to speak first.
Paul Morin from the Town of Weare asked if we had a quorum for the New Boston Planning Board. No was the answer. He then requested that if this application passes if our planning board would notice the Weare Planning Board of Site Plan review. Yes was the answer. He passed out a memo from the SNHPPC (see file) which said they had not had time to review information submitted to them to be able to make a recommendation. He then said that in the Weare accident incident report for the time period 2000, 2001, 2002, was 22 accidents not 6 for the intersection @ 114. He then questioned if the site distance had included Norris Road, saying there was a bank prohibiting a stop and look left.
D. Craig asked why Norris Road was not studied. Golde said this project would not be exiting Norris Road, so no reason to measure. It can be measured.
Mr. Morin said that the section of Twin Bridge Road from Newman Wilson Road to Rte 114 had been closed to through trucking. He passed out town ordinance for no through trucking.
Harry Piper asked where the definition of through trucking could be found.
Atty. Cleary said NHDOT would have regulation.
Mr. Morin said it was the town of Weare position that the applicant could not use the Twin Bridge Road to get to Rte 114.
Discussion followed about the no through trucking issue, with no conclusion as to the official definition.
D. Craig said this board no position as to whether this ordinance was legal or not.
Forest Esenwine, resident of Weare wanted to make it clear that the no through trucking was in the works before this application came before the NBZBA.
Atty. Cleary said they could use their plan B. and go up to Gould Road on return trips.
Mr. Golde said that Gould Road had not be analyzed at either the Rte 114 or Rte 77 intersections and it would about 2 weeks for that to be done.
Mr. Morin said because the SNHPPC had not had time to review this application, the town of Weare takes no position. But any thing that has to do with the Town of Weare, must be approved by the Weare Planning Board by formal application.
D. Craig asked if anyone was there from SNHPPC, and asked how long it would take for them to review the traffic study. Mr. Morin said he thought it could be done by the next hearing date.
No one was present from the Town of Goffstown or the Town of Mont Vernon.
Andrew Carlson, 98 Lull Road, passed out a handout of a USGS map with a 3 1/4 mile radius. (see file for handout) He said in 1967 there were 24 houses in the radius with no known operating grave pits, in 1985 there were 12 houses added, still no gravel pit, and 2005, 98 houses had been added. Over 3 years 175% increase. This not a huge gravel pit area even though pits are allowed. He feels a 55-hour week is not a limited operation. He is concerns about the multiple vehicles and diesel fuel. He asked if diesel fuel could be stored on site and if blasting would be allowed. No was the answer to both questions. He then reviewed the diesel/soot information he had included in the pass out.
Atty. Quarles spoke next representing abutter; this is the third time he had been before the board and suggests people submit written comments. D. Craig said we would accept written comments. Atty. Quarles had obtained plans and showed the cutting into the 75’ buffer. He said this proposal this is a moving target. He said he believe this part of the river is protected under the shoreline protection act RSA 43B and the buffer should be 150’ This section of the river meets the definition of public water under the statue. He stated if the shoreline protection act applies, they need a 150’ woodland buffer, not the applicant’s current 75’ buffer.
D. Craig asked if it was Quarles position, that cutting had been closer than 75’ and how did you come to that position. Yes, in the peninsular area, and it was eyeballed.
Bob Todd asked how he concluded that this portion of the river was on the shoreline protection act list. Quarles answered not on official list, will evaluated when ice if off and it may be listed. It is clear that the Shoreline Protection Act intended to include navigable rivers such as this one. It may be on the official list as early as April or May.
D. Craig asked if it the best evidence is somebody eyeballed that they are closer than 75’.
Yes, the property is posted no trespassing so no one can go out there.
Atty. Quarles said the applicant claims this will not change the neighborhood, he then mentioned the easement the Mardens put on their property. He stated applicant is bound by the character of the neighborhood, which is rural. There was no mention from the applicant about the State Forest on the east side, which is part of the character.. Atty. Quarles said this river is protected under the River Management Protection Program, it is designated a rural river under that program which is highest level of protection. Some the criteria from that is protection program is the, shoreline shall maintain natural vegetation, corridors are undeveloped, and should be limited to forest management and scattered housing. He said the cluster subdivision is not considered scattered housing. Atty. Quarles then
said equipment would be seen from the other bank for five years and would be heard for that period. He said this was a big impact on the natural heritage of this area. He then addressed the pollution from wood chips and skidders and dust pollution into the river. In closing, he referred to the New Boston master plan and its section of aquifers
Bill Rollins, 11 West Lull Place, made comments on drainage and how much will end up in river. He said the site had heavy vegetation sever month ago, is concerned that the trees and vegetation is gone. He said there is going to be a change and more runoff.
Donna Monbquette, 42 West Lull Place, addressed the noise, she talked about the wildlife and how tranquil the area is. she spoke of the frogs, turtles, birds and grouse in the area. A gravel operation will drown out the wildlife noise; and they will be replaced by the noise of trucks. The area will become almost uninhabitable by humans and wildlife.
Jason Martel, owner of the property, lives in Francestown but is in the process of moving into the 41 Lull Place property. He is in favor of this operation even though he will live closest to it. He stated the only way to appease everyone that has spoken was to stop the operation and replace the trees. He wonders what the end result will be.
D. Craig explained the process, saying the applicant must meet all criteria for a Special Exception. It is not our job to determine what someone should do with their property.
Harry Piper said if they meet the requirement we must approve. But, the requirements are not cut and dry.
Jed Callen , president of board of directors for PWA, passed out hand outs. He briefly reviewed PWA being a 35-year organization covering 5 towns in the watershed, with 400 members. He is also a Land Use Attorney and wants to focus on the legal standards. He believed this applicant does not meet the criteria. 155 E set the standard criteria for Special Exception that this board must apply. There are four criteria in the 155 E and three criteria in the town requirement. He pointed out the difference between the two regarding changing the character of the neighborhood. He reminded the board if one of the criteria could not be met, then the application fails. He questioned if the application should not be denied because the application only addresses the three criteria for the town and
none for the state and the plans presented have not been changed since they first submitted them and misstates the state law. No corrections have been made to the plans regarding the 75’ setback from river, even though the applicant acknowledges changes need to be made to them. He then spoke to the character of the neighborhood. He then referred to Supreme Court case NBAC vs. Weare. (a copy of this is in the file) Next, he spoke about a superior court case regarding Goshen, they upheld the town decision saying the town has a right to decide what we want for the character of the town. Jed then discussed the character of this neighborhood, the point is they bought this property recently and it had and has protected land near it. The Lang State Forest across the river has 3200’ of frontage on the river and was purchased by LCIP funds (public funds). Just south of this site the river is protected on both
sides all the way down to Gregg Mill Bridge. Then the river is protected from New Boston all the way to Goffstown. Only one river of 12 in the state designated as official status under 483;15. Designated as natural river not rural, 1320 feet on either side, because it is high quality natural and scenic resources, shoreline of natural vegetation, development of forest management, and scatter housing, water quality no lower than class (B), suitable for swimming and fishing. He then read the law; the state will designate the river and notify local boards that their land use decisions should be consistent with this set of standards and goals. The PWA local advisory counsel has come up with a management plan of the river, which was adopted, into the town management plan. He urged the board to get a copy of 483:9 to read. PWA has been collecting water quality data and it is submitted to the original copy of hand out.
Fact about the character, it is characterized by steep slopes, some south facing, which are great for wildlife. Excavating will affect the character, it is already damaged, but that can come back. The natural resources of our town is part of the character.
D. Craig polled the board to see if they needed more information. Some of the board members did need more information before they made a decision.
Gordon Russell of the PWA spoke next, he lives at Colburn Road, (see written report given to the board prior to the meeting) He spoke to the river and wildlife, saying he has been working on the river for 30 years. College students intern on the river. He said that no place that has more habitat, than that stretch of the river. There are 5 miles of the highest standard. He used the comparison; the river is like a spinal cord. If injury is done, it affects other parts. He showed the protected area, which was chosen not on a whim, but because it was valuable. He spoke of the wildlife and the disruption this would cause to them. He closed by quoting the passage at the end of his written report.
He asked that the board not let this happen.
John McGee, of the Piscataquog River Local Advisory Committee (LAC) formed in 1992, RSA 43, duties are to advise DES, state advisory committee and the municipalities, through which the river flows on matter pertaining to the management of the river; to comment on project which might alter the resource values and characteristics by which the river was designated, to develop and assist in the adoption of the local river and corridor management plan, and to report annually to the state advisory board and DES on status of compliance with local, state and federal regulations. The Town of New Boston adopted the PWA management plan in June of 2000. The LAC recommends the board deny the application for the following reasons. There are 14 designated rivers in state of NH and only one has 3 segments of natural river,
and only one is in the south central part of NH, and that is the Piscataquog River. He then passed out hand outs that show natural river segments, not many in state. The area is unique locally, regionally and at state level. The character of the area can be defined by many things, value to fish and wildlife and value to society habitat, large river corridor obtaining uncommon habitats for animals. Long slow emergent marsh. He reviewed some of the previous testimony. This river contains some of the world’s finest population brook floater mussels, which the state lists as endangered. He reviewed Lang State forest, which is there not only for enjoyment of the public, but to protect that river and the uplands. He then pointed out the x-section plans that were shown were factual, but at different points on the river a different site line would be available. Next, erosion and hydrology, high potential for problems. RSA 45 (a) 32, paragraph 3 states if you are going to
subdivide a piece of property can’t clear land, build road, alter land with out subdivision approval. RSA 227 (j) 9, timber cutting for land, must have all permits. Shoreline protection act is probably going to kick in here. This property meets the definition of public water (case of 1942) which is for the public enjoyment. LAC recommends the board denys the application.
D. Craig continued the hearing to April 19, @ 7:00 PM. same location.
Respectfully submitted
Laura Todd
03/18/05
PLEASE NOTE: The location for the next meeting will be at the New Boston Central School, Mansfield Gym due to the large number of people attending these hearing. The change of the location will be noticed in the New Boston Bulletin, notices will be put up in usual locations in New Boston. The applicant will be notified by telephone call, the Town of Weare, Town of Goffstown, Town of Mont Vernon, and SNHPPC, will be notified. The ZBA ask that all interested parties to inform others of the change.
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