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Planning Board Minutes 06/01/10
Planning Board
June 1, 2010
Approved July 6, 2010

Members Present:  Tom Vannatta, Chair; Barbara Freeman, Vice-Chair; Bill Weiler, Bruce Healey, Travis Dezotell, Elizabeth Ashworth, Members; Ron Williams, Deane Geddes, Alison Kinsman, Alternates; Ken McWilliams, Advisor.

Mr. Vannatta called the meeting to order at 7:04 p.m.

ADMINISTRATIVE BUSINESS

Upper Valley Lake Sunapee Planning Commission (UVLSPC) Annual Meeting
Mr. Vannatta informed the Board of the upcoming annual meeting and dinner buffet of the UVLSPC on June 9, 2010 in Grantham, NH, indicating that Board members were welcome to attend at their own expense.

Minutes
The Board reviewed the minutes of May 4, 2010 and made corrections. Ms. Freeman made a motion to approve the minutes as corrected. Ms. Ashworth seconded the motion. All in favor.

The Board reviewed the minutes of May 11, 2010 and made corrections. Mr. Weiler made a motion to approve the minutes as corrected. Mr. Healey seconded the motion. All in favor.

Capital Improvement Program (CIP) Appointments
Mr. Vannatta reviewed the suggested CIP member appointments for the CIP Update for 2011-2016 which are as follows: Ivor Freeman, Chair; Ken McWilliams, Planning Consultant; Dennis Pavlicek, Town Administrator; Gary Budd, Selectman representative; Ray Spaul, Member-at-Large; Ron Williams, Planning Board; and Tom Vannatta, Planning Board. Mr. Vannatta stated that CIP meetings with departments will start in July 2010.

Mr. Weiler made a motion to appoint the members listed above to the CIP Committee for the CIP Update for 2011-2016. Mr. Dezotell seconded the motion. All in favor.

Mr. Weiler asked about the procedure involved in recommending an individual to make a presentation to the CIP Committee. Mr. McWilliams suggested contacting Mr. Pavlicek or Mr. Freeman.

COMMITTEE REPORTS

There was nothing new to report from the following committees: Workforce Housing,
Sign Ordinance, and Subdivision Regulations.

IN-HOUSE SEMINAR

Mr. Vannatta introduced the concept of conducting periodic in-house seminars on the roles and responsibilities of the Planning Board as a way to introduce new Board members to the processes as well as afford existing members the opportunity to review and refresh their knowledge base.

Mr. McWilliams conducted the scheduled in-house seminar. He first reviewed the information in the handout entitled “Planning Board Responsibilities – The Big Picture” that included the following information:

  • The Master Plan: update every 5 to 10 years
        Mr. McWilliams traced the origin of the subdivision and site plan review regulations and the overall responsibilities of the Planning Board to the Town’s Master Plan. He said every five to ten years the Board is responsible for updating the Town Master Plan, which is a detailed and lengthy process. He said the Master Plan provides the overall guidance for the Capital Improvements Program, the zoning ordinance, and the Planning Board subdivision and site plan review regulations. For example, if a substantial change to the Town’s land use regulations is desired, the groundwork for the change would be laid in the Master Plan and the implementation of same would appear in the Town’s zoning ordinance. He said the Master Plan functions as a guide but it is not the law. The legal documents governing the Town’s land use are found in the Town’s zoning ordinance, subdivision regulations and site plan review regulations.

  • Capital Improvements Program (CIP): update annually
        Mr. McWilliams said the CIP is updated annually and is the responsibility of the Planning Board. He said the Town appoints a CIP Committee which includes representatives from the Planning Board, Board of Selectmen, the Town Budget Committee, Town Administration and some outside Town citizens. The CIP Committee works with the various Town departments and agencies to identify the capital needs for equipment, buildings, land acquisition, etc. over the upcoming six years. He said each year the Town reviews the CIP’s recommendations in light of shifting priorities and needs within the Town. The CIP Committee then submits an annual draft report to the Planning Board every October which the Board reviews and modifies as needed before adopting it and sending it along to the Board of Selectmen for consideration. Mr. McWilliams noted that the CIP is a plan – a recommendation – from the Planning Board to the individuals involved in the Town’s annual budget process.

Mr. Healey asked when the Planning Board, as a whole, last made a change to the CIP Committee’s annual draft report. Mr. McWilliams said changes were made to the CIP draft report two years ago, adding that changes are not always made each year. He said substantial changes may be made by the Planning Board to the CIP draft report if the Board so chooses, however he said the CIP Committee typically presents a thorough draft report for the Board’s review.

Ms. Freeman noted that, over the years, the CIP Committee has developed an efficient and thorough process of preparing the draft CIP Committee report and the Planning Board must depend on the accuracy of the Town’s various department heads’ information to the CIP Committee. She said the Board will question the CIP Committee if an anticipated expenditure listed in the draft report has not been used as projected.

Mr. Vannatta said the Planning Board is represented on the CIP Committee and two members of the Board also serve on the Town Budget Committee which runs parallel to and inclusive of the CIP Committee. He added that there is a correlation between the two committees and that affords added oversight to the CIP Committee activities.

At this point in the meeting, Ms. Freeman introduced Harry Seidel, a new member of the Zoning Board of Adjustment (ZBA). She said Mr. Seidel expressed an interest in attending the in-house seminar and upcoming Planning Board meetings as a way to maintain the informational connection between the ZBA and the Planning Board. Mr. Vannatta welcomed Mr. Seidel to the meeting.

  • Site Plan Review and Subdivision Regulations: update as needed
        Mr. McWilliams said the Planning Board is responsible for updating the Town site plan review regulations and subdivision regulations and maintaining compliance with state RSAs. He said changes to the regulations require a public hearing and a majority vote of the Board to make the changes.

  • Zoning Ordinance Amendments: annual preparation
        Mr. McWilliams said the Planning Board also makes recommendations on amendments to the Town zoning ordinance each year if needed. The recommendations are put on the ballot for the Town Meeting in March of the following year. The process is rigidly controlled, has a specific timeframe for noticing the public hearings and must be voted on at the Town Meeting. He said the passage of the amendment(s) requires a majority vote unless there is a petition against the specific amendment. If that occurs, passage of the amendment goes to a two-thirds majority vote.

  • Development Proposal Reviews
        The Planning Board is responsible for regulating current development activity which includes reviewing subdivisions, site plans, annexations, minor subdivisions, and mergers. Mr. McWilliams said these routine activities account for the majority of the Planning Board’s time and noted that the aforementioned responsibilities should also be recognized as important.

Mr. McWilliams discussed the role of procedures in the site plan review and subdivision regulation process and emphasized the importance of same. He said that, generally speaking, most of the successful court challenges against Planning Board decisions are due to an error in procedural process. He said that the state RSAs are very specific about due process: how much notice must be given to an abutter; how many days the public notice must be published in the newspaper; etc.  Any violation of the RSAs governing due process opens the possibility of an unfavorable outcome if a Planning Board decision is challenged in court.

  • Subdivision Application Review Process
        There are three recommended steps to the subdivision application review process: the conceptual consultation, the preliminary design review, and the final design review.

Mr. McWilliams reviewed the components of a Conceptual Consultation as follows:
  • It is an opportunity for the applicant to meet with the Board on an informal basis during a regularly scheduled Board meeting.
  • A conceptual consultation is not a noticed meeting and abutters are not notified.
  • It is an informal discussion between the Planning Board and the applicant.
  • The applicant may present his/her project in general terms and seek guidance from the Board on how the proposed project fits in with the Town Master Plan and the Town land use regulations.
  • The discussion should be general in nature since the abutters have not been notified.
  • A conceptual consultation is optional.
  • Any discussions/decisions in a conceptual consultation are non-binding.
Ms. Freeman said the conceptual consultation may also be used to encourage the applicant to provide more information to the Board if such information is needed. Mr. McWilliams agreed.

Mr. McWilliams reviewed the components of a Preliminary Design Review as follows:
  • A preliminary design review is required for major subdivision applications in Newbury. A preliminary design review is not required for minor subdivision applications.
  • A preliminary design review is noticed as a public hearing and all people on the abutters list are notified.
  • It provides the Board, the applicant and abutters an opportunity to surface all issues and concerns regarding the proposed project and allows all parties to discuss alternatives to addressing the issues and concerns.
  • The discussion of the proposed project at a preliminary level allows for discussion of issues and possible plan alterations before expensive final engineered plans are developed.
  • There are no time limits; the Board and the applicant may continue at the preliminary level from one meeting to the next, noting specific dates and times of the next meeting if continued. Conducted this way, the continued meetings do not have to be re-noticed.
  • The preliminary review may continue until both the applicant and the Board are comfortable with moving to the final subdivision review.
  • If the proposed project has potential regional impact, the Board discusses the possibility, researches the applicable state RSAs, and if needed, notifies the town(s) and the regional planning commission(s) representing the town(s). There are specific time restrictions involved in notifying the neighboring town(s) and regional planning commission(s).
  • Schedule a site walk if it has not been conducted during the conceptual consultation process. Site visits offer a hands-on review of the proposed project and often surface additional issues/concerns that may not appear relevant on the paper plans. Special studies that may be needed are often surfaced during a site visit.
  • Notice of the application is sent to the abutters via certified mail and they must be given 10 clear days of notice. That means 10 days (including weekends and holidays) between when the notice is mailed and appears in the newspaper and the day of the hearing. Return receipt for the certified mail is not required. Abutter addresses are those as listed in the Town records not more than five days before submittal of the application. Notice is also published in the newspaper and posted in two public places (Newbury Town Office and the Newbury Post office).
  • There must be separate notices for the preliminary design review and the final design review.
Mr. McWilliams reviewed the components of a Final Application submission as follows:
  • The final application must be on the Planning Board agenda within 30 days after the application has been submitted to the Land Use office.
  • At the scheduled meeting, the Planning Board must make a decision on whether that application is complete.
  • If, at the scheduled meeting, the Planning Board decides that the application is complete, the Board has an additional 65 days in which to give the applicant a decision. That means the board has two meetings in which to review the application.
  • Since the decision-making timeframe for reviewing a final application is tight, reviewing an application as a conceptual is highly recommended and then as a preliminary design review is required for a major subdivision..
  • Reviewing an application as a conceptual and then as a preliminary design review allows the board to surface and resolve any issues that may present problems during the final subdivision review.
  • The conceptual and preliminary design subdivision reviews allow the Board to give the applicant guidance on issues, raise concerns, schedule site visits, discuss whether the project has potential for regional impact, and indicate needed additional information or studies.
  • The majority of time involved in an application review should be spent at the conceptual and preliminary site plan review level.
  
There was general discussion about the “65 day” law and its applicability to major subdivisions. Mr. McWilliams also noted that several years ago Newbury amended the Subdivision Regulations to require all major subdivision applications to go through a preliminary design review process before submitting a final application. He noted this requirement does not apply to minor subdivision applications where the only required step is the final subdivision application.

Ms. Ashworth questioned why a return receipt for the certified notices is not required since it would guarantee that the abutter actually received the notification. Mr. McWilliams said the law requires only that the town have a record that the notice was sent to the abutter, not that the abutter received it. He noted an abutter could stop the whole review process by refusing to sign for a certified piece of mail.

Ms. Ashworth asked about the abutters of a subdivision project, namely if the abutters are directly contiguous to the property being subdivided or are abutters also those individuals who are accessing a road under consideration for approval. Mr. McWilliams said Article 2.0 of the Zoning Ordinance define abutters as those whose land directly abuts the parcel in question. Also, people whose property is directly across the street or stream from that parcel would be notified as well. He said the general notice posted in the newspaper is designed to alert other property owners in the vicinity. He said some towns include property owners within a circumference from the parcel in question and notify them as abutters.

There was general discussion about the definition of abutters. The Subdivision Regulations, Section III Application Procedures, Paragraph 3.8 Application for Preliminary Design Review or Final Approval identifies who needs to be included on the abutters list as follows:

        “The abutter list shall include the following:
                1) the applicant
                2)  the abutters
                3)  the landowners whose property is located within two hundred (200)                   feet of the land under consideration
                4) holders of conservation, preservation, or agricultural preservation                  restrictions on the land under consideration
                5) every engineer, architect, land surveyor, or soil scientist whose                            professional seal will appear on any plat submitted to the Board…”.

Mr. Vannatta noted that there are two types of abutter notices: one that is sent out for the preliminary design and final review and a different notice if the project carries regional impact. Mr. McWilliams agreed saying the latter notice would be sent to the regional planning commission(s) and to the town(s) affected prior to the final review.

Mr. Weiler asked if the towns and regional planning commission should be invited to the preliminary design review as well. Mr. McWilliams said that if the Board determines that the project has regional impact during the preliminary design review, the only option is to include the towns and regional planning commission in the final design review. However, he said the preliminary design review could be continued and re-noticed to include the town(s) and regional planning commission(s) or any other party of interest.

Abutter notification and public noticing is handled by the Land Use Secretary.

Mr. Geddes asked if the applicant is responsible for supplying the list of abutters. Mr. McWilliams said yes, the applicant is responsible. Mr. Weiler added that the abutter list must be submitted within five days of the application submission.

Ms. Ashworth said it is possible that the application reaches the stage of a preliminary design review without the abutters having been noticed. Mr. Vannatta said if that happens, the hearing stops. He said the individuals in the audience will then be asked if they want to waive the fact that they were not noticed. If the answer is yes, the hearing can continue; if the abutters are not present, or they choose not to waive the non-notice the hearing stops and must be re-noticed. Mr. McWilliams added that if there is the possibility of inappropriate abutter noticing it is preferable to stop the hearing and re-notice properly than risk inviting a challenge to procedure.

There was general discussion about the definition of abutter and the timetable for noticing.

Mr. McWilliams reviewed the components of a Final Design Review as follows:
  • It is a required step in the approval process.
  • It has a rigid timeframe. Within 30 days of submitting the application to the Land Use Secretary, it must be placed on the Planning Board’s agenda.
  • The Board must determine if the application is complete, based on the Board’s application submission requirements.
  • If the application is complete, the board may proceed to the public hearing at the same meeting, if it has been noticed.
  • The noticing process is identical to that listed for the preliminary design review.
  • If the application is considered complete, the board has 65 days to make a decision on the application.
  • The 65-day time frame may be extended if the applicant voluntarily provides the Board with a time extension.
  • If the applicant is unwilling to provide an extension, the Board may go to the Board of Selectmen (BOS). The BOS may grant up to a 90 day extension for the review process.
  • If after the above time extensions have lapsed and a decision has yet to be made, the RSAs provide a detailed process for the Board to follow.
Mr. McWilliams reviewed the importance of discussing the application only at and during the public hearings when all the parties are present – the applicant, the abutters, and the Planning Board. The application should not be discussed at any other meetings or outside of Planning Board meetings.

Mr. Geddes asked if reviewing the draft minutes of the meetings constitutes discussing the application. Mr. McWilliams said no, that reviewing draft meeting minutes is only to ensure the accuracy of the meeting discussion.

Mr. McWilliams said if four Board members meet outside of the noticed meeting, an application may not be discussed. Ms. Freeman added that email should not be used for that purpose either. Mr. McWilliams agreed.

Mr. McWilliams referred the Board to the Subdivision Regulations, specifically Section III, Paragraph 3.8 for details on application submittal requirements. He added that Section VII details the application submittal requirements for annexations, minor lot line adjustments, or boundary agreements, Section VIII details the application submittal requirements for minor subdivisions, and Section IX covers the application submittal requirements for major subdivisions.

Mr. McWilliams reviewed Section II Definitions of the Subdivision Regulations, specifically paragraph 2.15 Minor Subdivision as follows:

        “Minor Subdivision shall mean the subdivision of land into a total of three or fewer lots, plats or sites within a five year period requiring no new roads, utilities, or other public improvements as defined by RSA 676:4,III.”  

He said the five year clause is important to ensure an applicant does not incrementally subdivide a piece of property without the Planning Board’s review as a major subdivision.

Ms. Freeman noted the importance of the definitions throughout the Subdivision Regulations and to pay attention to what they really mean when considering an application. Mr. McWilliams agreed, adding the definitions are listed in the zoning ordinance, the subdivision regulations, and in the site plan review regulations. He added that the definitions contained in the zoning ordinance will apply to all other regulations.

There was further general discussion about the preliminary design review checklist and the final design review checklist and what information should be supplied for each review.  Ms. Freeman noted both the preliminary and final reviews included most of the same requirements and suggested that each checklist should be reviewed for clarity on what is needed. Mr. McWilliams agreed. He indicated some additional language would be helpful to differentiate between what level of detail is needed for a preliminary and final application.

Mr. McWilliams discussed a grandfathered application noting that it is an application that is not subject to changes in zoning or other regulations under consideration by the Board during the application process. He noted that if a preliminary design review application for a major subdivision has been accepted as complete by the Planning Board prior to the notice being published for an amendment to the land use regulations, then that application is not subject to the proposed amendment.

Mr. Healey noted the following excerpt on Statutory Vesting from the Office of Energy and Planning (OEP) Handbook:

        “The Planning Board should decide what constitutes “active and substantial development” and what will constitute “ substantial completion of improvements”  and include each as part of its regulations. If the Board fails to specify and define by regulation what is “active and substantial” for a particular project, the project automatically gets the four years of protection.”

Mr. Healey said Section VI Administration, Paragraph 6.7 Four-year Exemption does not define what is “active and substantial” . Mr. McWilliams said what is “active and substantial” must be defined for each specific project at the time of approval and referred the Board to the RSA 674:39 for clarification. There was further general discussion regarding the issue of vesting in light of the recent economic downturn.

Mr. McWilliams reviewed the decision-making process of the final subdivision review noting the Board may render one of three decisions: 1) approve the project; 2) disapprove the project, with the reasons stated; or 3) approve the project with conditions. He added that if the project is disapproved, the reasons must be stated to the applicant at the meeting and becomes part of the meeting minutes. Additionally, a written notice of decision must be sent to the applicant stating the denial and the reasons why.

He said an approval of the project is stated to the applicant at the meeting and becomes part of the meeting minutes. A written notice of decision is then sent to the applicant along with the recording of the plat. The approval with conditions requires that the conditions be stated to the applicant at the meeting and becomes part of the meeting minutes. A written notice of decision listing the approval and the conditions is then sent to the applicant.

Mr. McWilliams reviewed the two kinds of conditions: 1) conditions precedent; and 2) conditions subsequent. Conditions precedent includes things that need to be completed before the project approval is final. He said such conditions may be simple administrative conditions, such as obtaining a permit, etc. Other conditions precedent may require another public hearing, such as obtaining acceptable drainage plans, etc., because completion of the conditions may affect abutters. If a public hearing is required, it must be noticed as addressing just the condition(s) under consideration. Following the public hearing and subsequent approval, the aforementioned procedure is followed.

Mr. McWilliams described conditions subsequent as those areas that might need ongoing monitoring, such as activities during construction. Such activities include adhering to agreed upon hours of construction, preservation of an existing stone wall, etc.

Mr. Weiler reviewed the appeal process as outlined on page 421 of the OEP Handbook and there was general discussion regarding same. Mr. McWilliams referred the Board to RSA 677:15 for clarification.

Mr. McWilliams outlined the suggested reading material for the next in-house seminar scheduled for the July 6, 2010 meeting.    

The Board agreed that the information presented by Mr. McWilliams for this in-house seminar was very useful and valuable.

Mr. Vannatta informed the Board that Steven Landrigan is scheduled for a hearing before the Zoning Board of Adjustment on June 14, 2010.

Mr. Weiler raised the issue concerning the definition of “Lot of Record”. He suggested placing a more definitive definition of the term in the Town’s zoning ordinance. Ms. Freeman supported the suggestion and Mr. McWilliams said the Board may make a zoning amendment proposal in the Fall for placement on the ballot for the Town Meeting in March 2011.

Mr. Weiler suggested that the Board develop wetlands impact information earlier in the process of a subdivision application review.

Mr. Weiler made a motion to adjourn. Ms. Freeman seconded the motion. All in favor.

Meeting adjourned at 8:55 p.m.

Respectfully submitted,

Meg Whittemore
Recording Secretary