Planning Board
September 20, 2005
Members: Bill Weiler (Vice-Chair), Ron Williams, David Thayer, Travis Dezotell, Clay Rucker (Alternate Ex-Officio), Deane Geddes (Alternate), Lacy Cluff (Alternate) and Ken McWilliams (UVLSRPC).
Mr. Weiler opened the meeting at 7:05 p.m.
Administrative Business
The Board reviewed the minutes from August 16, 2005 and made corrections. A motion was made to accept the minutes as corrected. It was seconded. All were in favor.
Mr. Weiler stated that he had looked up the State’s definition of a wetland and said that the Town of Newbury’s definition of a wetland was word for word of that of the State.
Case: 2005-015: Conceptual Review - Peter Smerald – Minor Subdivision – Baker Hill Road and Hynes Road – Map 037 Lot 658-130.
Mr. Smerald introduced himself and passed plans out to the Board. He explained the location of the lot and where homes were located. He said that what he was looking to do was very simple. He was looking to split the lot in half at the stone wall and then split the remainder in half. There would be 20 acres of land on the lot with the house and two 4.5 to 5 acre lots on Baker Hill. The lot would be subdivided into a total of three lots. He said that it would fit in with the area and not be disruptive.
Mr. Geddes asked about the stone wall and the road frontage.
Mr. Smerald showed where the stone wall was located and said that there was 670 feet of road frontage and that was going to be roughly divided in half.
Mr. Weiler commented that there were a lot of wetlands and recommended that Mr. Smerald review the Subdivision Regulations and the Zoning Ordinance, especially Article 5, density requirements.
Mr. Smerald said that Baker Hill Road required a 3 acre density and there was an acre of contiguous developable land.
Mr. Weiler said that he will also need to read the Subdivision Regulations.
Mr. Smerald said that he did review the Subdivison Regulations, but did not understand how the regulations applied to the existing area. He said that a two foot contour for the remaining 20 acres would be very pricey.
Mr. Weiler said that he could apply for a waiver for the 2 foot contours, but that he should carry the 2 feet at least 100 feet over the property line. He said that Mr. Smerald would need to make the request for a waiver in writing with a reason.
Mr. Williams commented that he would need to subtract out the wetlands and also would need to mark the setbacks from the wetlands.
Mr. McWilliams said that he would need to map all wetlands and steep slopes.
Mr. Weiler said that all of the items were laid out in the regulations.
Mr. McWilliams asked if the property was contiguous with any of the identified protected lands.
Mr. Smerald said that it was not.
With no further questions, Mr. Weiler closed the review.
Case: 2004-006: Angel Hawk – Major Subdivision – Nelson Hill Road and Sutton Road – Map 048 Lot 599-442.
Mr. Weiler said that the Town of Sutton has issued an approval of the proposed improvements to Nelson Hill Road with conditions to Angel Hawk (see file for the conditions).
Mr. Geddes asked if this was that the last hurdle for them.
Mr. Weiler said that they still had the issue of the lot in Sutton.
Mr. McWilliams said that that lot needed to meet all of Sutton’s requirements.
Mr. Weiler said that the Board would need to sign the plat when they were done, so the Board could check on it then.
Case: 2005 – 021: Conceptual Review - Larry and Brenda Jeanson – Minor Subdivision – Route 103A and Rollins Road – Map 018 Lot 143-105.
Clayton Platt introduced himself as the authorized representative for Larry and Brenda Jeanson.
Mr. Platt said that the plans had changed from what was submitted and submitted those plans to the Board. He explained that there was a lot that was 4.8 acres on the corner of Rollins Road and 103A that they wanted to subdivide in half. There was already a house on one and they wanted to build on the other. He said that the north lot already had a house. The plans had changed after the wetland scientist looked at the property and told them that they would have to move the line slightly to fit the septic.
Mr. Weiler asked if he had done a density calculation for this and referred to Article 5 in the Zoning Ordinance.
Mr. Platt said that he had not and realized that he had referred to the old Zoning Ordinance.
Mr. McWilliams discussed the new regulations.
Mr. Platt said that if the building needed to be 75’ from the wetlands it would be difficult. He said that they could probably get one acre of contiguous land.
Mr. McWilliams said that that excluded the setbacks.
Mr. Platt said that there was no way that they could do that. He said that that requirement would make it impossible to build on many of the small lots in Newbury. He said that it was a tremendous restriction.
Mr. McWilliams said that if the wetland was less than 10,000 square feet, it did not qualify as a wetland.
Mr. Platt said that he would need to redo the application for next month.
Case: 2005-018: Final Hearing – John R. Davis – Site Plan Review for a Welding Shop and Boat Storage – Route 103 – Map 020 Lot 046 -050.
Notice is hereby given that the Planning Board will receive submission of an application for Site Plan Review from John R. Davis for a welding shop and boat storage at 82 Route 103, Tax Map 020-046-050, on Tuesday, September 20, 2005, at 8:30 p.m. in the Town Office Building at 937 Route 103 in Newbury, NH. If the application is accepted as complete, a public hearing on the application will commence at the same meeting.
Copies of the plans are available for public review at the Town Office Building during regular business hours.
Mr. Weiler read the above public notice.
Bob Stewart, RCS Designs, introduced himself as the authorized agent for John R. Davis.
Mr. Weiler said that he was concerned that the building was located in the residential zone. A welding shop is not permitted in a residential zone.
Mr. Stewart said that Mr. Davis had a Special Exception from the Zoning Board. He read the minutes from March 31, 2003 from John R. Davis’s hearing (please see records). He said that he interpreted the Zoning Ordinance to say that if a majority of the property was located in the Business District, then it was all considered the Business District. He said that the ZBA added in paragraph 5.3.1 in there approval to allow a Cottage Industry to exist in the area that was not the Business Zone. In his presentation, he made them aware of the Planning Board’s concerns about it not being in the Business District. The ZBA felt that the entire property should be considered the Business District.
Mr. Weiler said that that was an illegal decision, they erred procedurally. He referred to the ordinance that discussed special exceptions. He said that they would need a variance to get the use legitimized in the Residential District. He said that he did not think that the Board should hear this application that was based on an illegal situation.
Mr. Stewart said that they had made efforts to do this properly. He asked where the authority lay with that statement saying that it was an illegal action given that there was a 30 day appeal process.
Mr. McWilliams said that Mr. Weiler’s point was that the application was not for a Variance. The ZBA cannot grant you something that you did not ask for. If there was no application, they cannot grant anything. He said that they would need to go back to the ZBA and apply for a Variance.
Mr. Stewart said that the ZBA recognized the issue, discussed it and made a decision. It was not as though they applied for a Special Exception knowing they needed a Variance. It was their interpretation of article 4.1.4.
Mr. Weiler said that that was the district boundaries and needed to be taken into context.
Mr. Stewart said that he understood his position and interpretation, but it says in the minutes that he clearly stated his concern at the meeting about the Planning Board not interpreting it that way. The ZBA interpreted it differently.
Mr. Weiler said that the ZBA did not have the right to make that interpretation.
Mr. McWilliams said that if that were the case, you could have a 100 acre parcel and consider the whole thing to be in the Business District.
Mr. Stewart read from RSA. 674:33 II.
Mr. McWilliams said that there was no application for a variance. They cannot make a decision on an application that was not presented to them.
Mr. Stewart Read from RSA. 674:33 IV.
Mr. Weiler said that there were no specific rules in the ordinance that allowed the Business District boundaries to be extended back into the Residential District. There needs to be condition under which a Special Exception can be granted. You can get a Variance to violate an ordinance.
Mr. Weiler said that he would like to propose to the Board that they ask the applicant to go back to the ZBA for a Variance for use. He said that the Board could review the application tonight and continue the hearing.
Mrs. Cluff and Mr. Rucker felt that this approach sounded reasonable.
Mr. Geddes said that they left the ZBA thinking that they had an approval.
Mr. Dezotell said that he felt that the intent was obvious.
Mr. Weiler said that the Board would be violating a procedure if they approved the site plan.
Mr. Stewart said the he went before the ZBA thinking that the entire property should be considered the Business District per his interpretation of the Zoning Ordinance and did not apply for a Variance. No appeal was made within thirty days. He said that it took so long to come back before the Planning Board because of a railroad right of way issue that needed to be clarified and took a long time to clear up.
Mr. Weiler asked Mr. McWilliams if the Planning Board could appeal a decision made by the ZBA.
Mr. McWilliams referred to the RSAs and found that a municipality could appeal a decison.
Mr. Weiler appointed Mr. Geddes as a voting member. He said that he would like a motion on how to handle the situation.
Mr. Geddes said that he would like to know what Mr. Davis wanted to do. He thought that perhaps he may be he willing to go back to the ZBA and get it right.
Mr. Stewart requested a 5 minutes recess to discuss the issue with his client. The recess was granted.
When Mr. Stewart returned, he stated that his client did not want to go back to the ZBA for something he felt had already been granted.
Mr. Weiler asked for a motion on how to resolve.
A motion was made to accept the ZBA’s decision. It was seconded.
Mr. Rucker asked what the ramifications would be if the Planning Board accepted the ZBA’s decison.
Mr. McWilliams said that someone should track the ZBA more carefully. He said that if the ZBA makes a decision and no one appeals it in 30 days, than it stands.
Mr. Williams said that he did not feel it was clear and felt that it would set a precedent.
Mr. Dezotell said that the intent was clear.
Mr. Weiler called a vote
4 in favor
2 opposed.
Mr. Weiler said that the Board would proceed on that basis. He proposed to continue the hearing to a time and date certain because of the late hour and the fact that there was another hearing scheduled.
Mr. Stewart objected to continuing and said that he would like to settle this. He said that he did not feel that he should have to pay a fee to continue because the Board discussed the issue so long.
Mr. Weiler said that the Board could waive the fee.
A motion was made to waive the $65 fee to continue. It was seconded. All were in favor.
Mr. Stewart asked how many days before next hearing he needed to submit any revisions.
Mr. Weiler said that any new plans should be in within 15 days of the hearing.
A motion was made to continue the hearing at 7:30 p.m. on October 18, 2005. It was seconded. All were in favor.
Case: 2005-017: Final Hearing – Michael Gobes – Lot Line Adjustment/Annexation – Route 103A – Map 018 Lot 218-255 and Map 018 Lot 213-220.
Notice is hereby given that the Planning Board will receive submission of an application for a Final Hearing for a Lot Line Adjustment/Annexation from Michael Gobes for property located on Route 103A, Newbury, NH, Tax Map 018-218-255, on Tuesday, September 20, 2005, at 9:00 p.m. in the Town Office Building at 937 Route 103 in Newbury, NH. If the application is accepted as complete, a public hearing on the application will commence at the same meeting.
Copies of the plans are available for public review at the Town Office Building during regular business hours.
Mr. Weiler read the above public notice.
Mr. Weiler appointed Mr. Geddes at voting member for this hearing.
David Eckman introduced himself as the authorized representative for Micheal Gobes.
The Board reviewed the application for completeness. A motion was made to approve the application as complete with the condition of the addition of the line for seven members to sign and the statement relative to further subdivision be included on the plat.
Mr. Eckman explained that the applicants wanted to adjust the lot line, adding a jog to put their well on the West’s property. He said that they were also remodeling and the addition would not be 15 feet from the property line and this lot line adjustment would allow them to be 15 feet.
Mr. Williams asked if they were aware that the well radius went over the property line.
Mr. Eckman said that that they were.
Mr. Williams asked if they could adequately maintain the 15 feet right of way. He said that there were issues with plowing in the past.
Mrs. West said that they had an approval from the State for a new driveway and would be discontinuing the use of that one in the future.
Mr. West said that they had two driveways, one that was existing and grandfathered and then the new one that had been approved by the State.
Mr. Williams said that that needed to be on the plan. He said that they would also want to do away with that easement.
Mrs. West said that the deed stated that it could be used until such a time that they had their own, so it would automatically be eliminated.
With no public present and no further questions from the Board, Mr. Weiler asked for a motion.
A motion was made to approve the lot line adjustment/annexation subject to the corrections of the approval block, the addition of the driveway to serve lot 2, the notation relative to no further subdivision and removing note #3. It was seconded. All were in favor.
Meeting adjourned at 10:20 p.m.
Respectfully Submitted,
Lacy L. Cluff
Recording Secretary
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