Planning Board
November 17, 2009
Approved December 15, 2009
Members Present: Tom Vannatta, Chair; Barbara Freeman, Vice-Chair; Deane Geddes; Bruce Healey; Bill Weiler; Travis Dezotell; Alison Kinsman, Alternate; Ken McWilliams, Advisor; Jim Powell, ex-officio member.
Mr. Vannata called the meeting to order at 7:00 p.m.
ADMINISTRATIVE BUSINESS: Minutes
The Planning Board reviewed the minutes of October 20, 2009 and made corrections. Mr. Weiler made a motion to approve the minutes as corrected. Ms. Freeman seconded the motion. All in favor.
CASE: Continuation – Case 2008-010: Annexation- Brad LaClair/agent: Roger Rodewald. 927-6030. Park 10 properties. Map/Lots 020-055-210, 020-069-280, and 020-057-229.
Mr. Vannata reviewed the case to date. At the October 20, 2009 meeting of the Planning Board, the Board recommended that Mr. Rodewald obtain a variance from the Zoning Board of Adjustment (ZBA), enabling him to have a building lot. Mr. Rodewald spoke with the ZBA Chair and the Selectmen concerning the Planning Board’s recommendation. Mr. Vannatta and Mr. Weiler spoke with the ZBA Chair concerning the case. Following the respective discussions, the Board concluded that there may be an alternative to obtaining a variance. Mr. Weiler noted that one of the issues of concern was access off a road to a back property. He said if the issue of access was solved, Mr. LaClair could then apply for a building permit.
Mr. Weiler researched the options open to Mr. LaClair and Mr. Rodewald and presented the document dated October 27, 2009. (See “Attachment”)
Mr. Weiler and Mr. McWilliams said the service road would have to meet Town specifications. Mr. Rodewald asked what constitutes town specifications for a service road.
Mr. Weiler reviewed the Town standards for a service road: width must be 14 feet; base course of 4 inches of sand; 4 inches of gravel; and 4 inches of crushed gravel for a total depth of 12 inches.
Mr. Powell said the Town standards for a service road are similar to the standards for a driveway.
Mr. McWilliams said additional standards for a service road include a ROW of 40 feet which is wider than the proposed plan.
Mr. Rodewald said he could come up with a road that meets the requirements for a service road but was unsure about obtaining an easement or waiver for the ROW.
Mr. Weiler referred Mr. Rodewald to page 66, Section XIII – Standards for Street Design, and page 20, paragraph 4.10 Waiver of Requirements of the Newbury Land Subdivision Control Regulations.
Mr. Weiler said the required ditch-line-to-ditch-line is 20 feet. There was general discussion about the location of the proposed service road and the ROW requirement of 40 feet.
Ms. Freeman said the reason for the required ROW is the space needed for utility poles. She asked Mr. Rodewald how the electric service was going to be brought in. Mr. LaClair and Mr. Rodewald said the electric service would be buried.
Ms. Freeman asked to see contours to ensure vehicles can safely get into the property. She suggested that the Board make a site visit with Mr. Rodewald and Mr. LaClair present. During the site visit the Board could see the boundary lines of the property, the location of the proposed road, flags for the lots, and the housing location, and the location of the existing wall. Ms. Freeman asked if the layout for the septic system and proposed house could be marked.
Ms. Freeman also asked if a perk test has been completed. Mr. Rodewald said no.
Mr. McWilliams said that if Mr. Rodewald is planning to design a service road, the Board must have the design specifications for the road, including a cross-section and a profile.
Ms. Freeman said before the Board asks Mr. LaClair for design specifications for a road, he should have the assurance from the Board that he can move forward before spending money on an engineering firm. The Board agreed.
Mr. Rodewald said his next step is to develop a site plan and septic plan.
Mr. Vannatta suggested that the Board make the site visit before Mr. Rodewald develops a site and septic plan.
Ms. Freeman made a motion for the Board to meet at Park 10 at 8:00 a.m. on November 21, 2009 to reconvene this meeting session and to continue the meeting session on December 15, 2009 at 7:15 p.m. Mr. Dezotell seconded. All in favor.
CASE: Case 2009-005: Final Minor Subdivision- Rheta Heller/agent: Allen Wilson of ALW Surveys. 863-1474. Rollins Road. Map/Lot 030-666-376.
Notice is hereby given that the Planning board will receive submission of an application for a Final Hearing for a Minor Subdivision from Rheta Heller Revocable Trust, for property located on Bartlett Road and Rollins Road, Newbury, NH, Tax Map 030-666-376 on Tuesday, November 17, 2009, at 7:15 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.
Diane Heller was present as the representative for Rheta Heller. Mr. McWilliams reviewed the application checklist with the Board. The soils report and map requirement was missing. Ms. Heller said that the lot was over five acres and did not require a perk test.
Mr. Powell made a motion to waive the requirement for the soils report and map. Mr. Dezotell seconded the motion. All in favor.
Ms. Heller said the original tree farm acreage is approximately 76 acres and the proposed subdivision is 5.3 acres to fit the terrain and create a view. The lot has 234 feet of frontage and has a driveway. Additionally, the lot meets the requirement for rural lot size of over three acres.
Ms. Freeman asked if Ms. Heller had a wetlands scientist examine the property. Mr. Wilson of ALW Surveys said an old logging road through the property represents some wet areas.
Ms. Freeman asked if the applicant needed a building envelope. Mr. McWilliams cited Section 5.10 “Building Envelopes” of the Zoning Ordinance which requires a building envelope.
Ms. Heller said that the deer wintering areas, the wetlands, and the contours indicated on the plans clearly show what area of the property is buildable.
Ms. Freeman said even though the wet areas are indicated on the plan, Ms. Heller has not shown the setbacks from those areas. Ms. Freeman also noted the presence of a seasonal stream and said the stream cuts through the property.
Mr. McWilliams said the Zoning Ordinance requires a building envelope when subdividing lots and needs to be on the plan.
Mr. Vannatta asked about the wetlands indicated on the plans. Mr. Wilson said the area containing the old woods road and the seasonal stream falls under the State criteria for wetlands.
Ms. Freeman said the Board should either waive the building envelope requirement or require the applicant to come back to the Board with the building envelope indicated on the plan.
Mr. Healey said it made sense to waive the requirement because the applicant is not building a house at this time.
Mr. Weiler said that is true of all subdivisions and that it is the Board’s responsibility to make sure the lot is buildable.
Mr. Dezotell said the applicant just needs to prove that the required building envelope of a minimum of one contiguous acre exists on the property.
Mr. Weiler made a motion to waive the building envelope requirement. Ms. Freeman seconded the motion. All in favor.
Mr. Vannatta asked for further discussion from the Board. There being none, he opened the meeting to the public session portion of the hearing.
There being no questions from the public, Mr. Vannatta closed the public session portion of the hearing.
Mr. Weiler said the density report was filled out incorrectly, specifically the sentence, “Total area of all land being subdivided”. He suggested that, based on the testimony given, the density report requirement be waived.
Ms. Freeman suggested the applicant make the correction and resubmit the plan.
Mr. Weiler said doing that would be cost prohibitive to the applicant.
Mr. Weiler made a motion to waive the density report requirement. Ms. Freeman seconded the motion. All in favor.
Ms. Freeman made a motion to approve the minor subdivision as represented on the plans with the following waivers: (1) soils report and map requirement; (2) building envelope requirement; and, (3) density report requirement. Mr. Weiler seconded the motion. All in favor.
CASE: Case 2009-006: Conceptual Site Plan Review- Richard H. Wright. 603-938-2947. 535 Route 103. Map/Lot 043-583-529. Wrightway Landscaping for a greenhouse.
Mr. Wright was not present at the meeting.
CASE: Case 2009-007: Conceptual Annexation- Walter & Marlene Graf/Robert & Carol Vonette. 603-763-9027. Map/Lots 40-458-050 and 40-387-088.
Arthur Siciliano, land surveyor, represented the Grafs, the Vonettes, and a third annexation client, Steven Epstein. He described the Graf property as being 69 acres, the Vonettes property as being 15 acres, and the Epstein property as being 99 acres.
The three parties are proposing to annex 13.69 acres of the Graf property to the Vonettes, and annex 35 acres of the Graf property to Mr. Epstein, leaving the Grafs with 20 acres.
Mr. Siciliano said all three properties front on three roads: Cheney Road, Chalk Pond Road, and Bear Road.
Mr. Weiler asked if the annexations should be on one application. McWilliams said even though there are two annexations it can be shown on one application.
Ms. Freeman suggested having two applications because of the multiple owners.
Mr. Weiler said, even though it is not yet codified, the Board needs to see the property deeds for annexations and should be ready for recording before the plat is presented.
Mr. McWilliams clarified, saying, the Board needs the deeds to record with the plat so it all takes place at the same time.
Mr. Siciliano said he has surveyed the Vonette’s property and the Graf’s property. He has not yet surveyed Mr. Epstein’s property.
Ms. Freeman said the boundaries of Mr. Epstein’s property should be surveyed.
Ms. Siciliano said he will proceed with the project as two annexations, not one.
There was discussion concerning the deeds and Mr. Weiler stated that the deeds need to be recorded along with the plat. The Town records the plat. There was additional discussion concerning the mylar and releasing it for the closing.
Mr. McWilliams reviewed the process as follows: the Board approves the annexation and signs and holds onto the mylar; the Board receives the deeds that have been transacted, signed, and are ready to record; the Board holds onto the deeds and records the mylar; the mylar is returned to the Board and now contains the recording number; and, the Board fills in the recording number on the deeds and then sends in the deeds for recording. The process keeps control of both the mylar and the deeds.
Mr. Siciliano said he intends to do one annexation representing the Grafs and Vonettes properties. He said the Mr. Epstein’s annexation will be a second application after a survey is completed.
Mr. Siciliano asked the board if they would accept the application in a 200 scale size.
Ms. Freeman suggested that he write a letter to the Board requesting a waiver. Mr. Weiler referred Mr. Siciliano to Section 4.10 “Waiver of Requirements” in the Land Subdivision Control Regulations.
ADDITIONAL BUSINESS
Mr. Weiler suggested making a change to the wording on line #1 in the Density Report Form from “being subdivided” to “before subdivision”.
Ms. Freeman made a motion to change the wording on line #1 in the Density Report Form from “being subdivided” to “before subdivision. Mr. Dezotell seconded the motion. All in favor.
Mr. Dezotell made a motion to adjourn. Mr. Geddes seconded the motion. All in favor.
Meeting adjourned at 8:30 p.m.
Respectfully submitted,
Meg Whittemore
Recording Secretary
Attachment
In the planning board’s review of this application, there came a time when it was realized that the back lot had no qualifying frontage. The obvious resolution was to send the applicant to the ZBA for a variance. On closer inspection, it was found that State law superseded the local zoning ordinance in matters involving building houses on lots without frontage. RSA 674:41, I specifies the frontage requirements for the “erection of buildings on streets.” RSA 674:41, II provides the mechanism to seek an “exception” from the requirements of paragraph I. On the advice of the planning board, the applicant was sent to the ZBA to obtain a variance. Although Mr. Rodewald asserted he understood what needed to be done, he was unable to communicate it to the chair of the ZBA. The chair called me for
advice, and I soon realized I did not understand either, hence, this review.
On the advice of the ZBA chair, I reviewed Chapter 7 of A Hard Road to Travel [published by The Local Government Center]. In Chapter 7 there is an excellent analysis of RSA 674:41. In RSA 674:41, II a variance is referred to as an exception. The four conditions required for granting an exception are scattered throughout the paragraph where they are not immediately obvious. Chapter 7 extracts those conditions and makes a handy list. The discussion points out that the second condition, that “the circumstances of the case do not require the building structure or part thereof to be related to existing or proposed streets” will almost never be met. A year-round dwelling will need access to the street for vendors and emergency vehicles. Furthermore, the lack of access will not meet the requirements of the
fourth condition, that “erection of the building or issuance of the permit will not cause hardship to future purchasers.” Thus, the variance approach will not work.
An alternate approach would be to create an access to the back lot that meets the requirements of RSA 674:41, I. The text of this section begins: “no building shall be erected on any lot within any part of the municipality nor shall a building permit be issued for the erection of a building unless the street giving access to the lot upon which such building is proposed to be placed…” It goes on to say that one of the possibilities is, “(b) Corresponds in its location and lines with: (2) A street on a subdivision plat approved by the planning board.” RSA 672:13 provides the definition of street: “Street means, relates to and includes street, avenue, boulevard, road, lane, alley, viaduct, highway, freeway and other ways.”
Section XIII of the Newbury Land Subdivision Control Regulations provides standards for street design. It starts with the statement “All proposed streets, public or private, shall be designed and constructed to conform with the provisions of this section. Approval of the Board and the Fire Chief of the Town of Newbury concerning minimum requirements for passage of safety/emergency vehicles shall also be received.” It appears that the above mentioned street would have to meet the requirements of a “service” road in Paragraph 13.11. Also the following paragraphs should be heeded:
“13.5.1 Permanently Private Road: Any ROW [right of way] that is never intended to be deeded to the Town shall be clearly shown on the Plat as a single centerline and shall be considered as having no width which is sub tractable from the land to be subdivided. This type of ROW need not divide proposed lots through which it travels to provide legal access to lots further on in the subdivision.
13.6 Covenant to Release Town etc. from Furnishing Public Streets: If the owner of the land represents to the Board, and the Board agrees, that he does not now desire or require public streets or roads within the subdivision for all or any portion of the land, he shall deliver to the Board for recording a signed Covenant entitled “Covenant Relating to Release of Town of Newbury from furnishing certain facilities in proposed subdivision of land, Newbury, NH” (Exhibit B of these regulations), and if such services are later desired or required, they shall be constructed and installed without cost to the Town in accordance with the regulations then current covering such work. Furthermore, such covenant shall become a part of every deed of transfer within the proposed subdivision.”
In conclusion, an alternative approach would be to create an access to the back lot that meets the requirements of RSA 674:41, I. This could be accomplished by recording a planning board approved plat that extends a service road to provide access to the back lot in compliance with RSA 674:41,I. It is recommended that the planning board consider offering this approach to the applicant, Mr. LaClair.
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