NEWTON PLANNING BOARD
MINUTES OF PUBLIC HEARING
DECEMBER 8, 2009
1. Call to Order:
Chairperson Miles called the meeting to order at 7:02 pm. In attendance were: Chairperson Ann Miles; Vice Chairman Jim Doggett; Planning Board members Kim Vaillant, Barbara White and Frank Gibbs; and Alternates Chuck Whitman and Rick Milner. Minutes were transcribed by Administrative Assistant, Lisa Babcock.
Also in attendance: Brian Groth, Circuit Rider Planner.
2. Ann McKillop Araki of Boise, ID: continuation of a public hearing for a 4-lot Subdivision and Roadway at 9 Sarah's Way, Newton. The property is referenced as Tax Map 10, Block 2, Lot 10-7.
Miles recused herself and left the table to take a seat in the audience. Vice Chairman Doggett appointed Whitman to stand in for Miles and Milner to stand in for Pettit. Engineer Dennis Quintal was in attendance to represent the applicant. Ms. Araki was not present.
Mr. Quintal said that a site walk had been held on November 28th. The group walked down the existing Right of Way, viewed the area for the wetland crossing, discussed grading; viewed the existing trails and the existing culvert (which will eventually be replaced with a larger culvert).
Doggett asked for abutter comments. Atty. Seth Bostock addressed the board on behalf of the abutters. He requested that the Board consider continuing the hearing for one more meeting so that he could review the materials from the previous meetings. Atty. Bostock also said the abutters are interested in obtaining an easement for the trail system.
Milner asked Atty. Bostock if the abutters had any new information to present to the board. Atty. Bostock replied that he had only been hired that day and had not had a chance to review all of the materials. He said the abutters' primary concern is to obtain a trail easement.
Abutter Sheila Bergeron said she would like to see the letters from the Conservation Commission and the abutters included as part of the minutes. Doggett reviewed a letter from the Conservation Commission dated September 4, 2009 in which the Commission requests a 40' no cut buffer along the property line with the lot that abuts Greenie Park. Ms. Bergeron asked if a decision had been made concerning the letter.
Doggett said the letter had been discussed at the first public hearing in September and that the Board had decided that a 25' buffer was sufficient. He further explained that this is the size of the buffer required by the regulations.
Whitman also noted that the letter signed by the abutters and dated November 7, 2009 was discussed extensively at the last meeting and is well documented in the minutes.
Atty. Bostock asked if the plans and letter from the Conservation Commission had been reviewed by the town's engineer. Doggett stated that the plans had been reviewed by the town's engineer but that it was not necessary for him to review the Commission's letter since the board had already declined the request to require a 40' no cut zone.
Next, the Board reviewed an e-mail from the Conservation Commission dated November 9th, 2009. In the e-mail, the Commission requested that the trail that connects to Greenie Park be shown on the plans.
Vaillant pointed out that if the trail had been depicted on the original set of plans, the discussion regarding trails would have occurred a lot sooner. When the trails committee is in place they should be able to see trails on all plan sets that come before the board. Vaillant said she saw an extensive trail system, a bridge and a running stream on the property during the site walk.
Doggett said the town has no laws, regulations or ordinances to request this type of easement and the town can offer no assurances or guarantees to the property owners that such an easement would not lower the property value.
Vaillant said the Conservation Commission is trying to preserve trails and trying to connect those trails to destinations as suggested during the Plan NH sessions. She said this is the first plan that happened to go before Conservation that has an existing trail system that goes to a destination.
Whitman referred to a letter from abutter Andrew Bufano dated December 7, 2009 in which Mr. Bufano (who was not present) suggests that "There is another alternative to the current plan for development which could be possible and create a win-win for all parties…it is still possible for the developer to obtain the buildable lots without waivers by exploring other options." The letter did not explain what the "other options" might be. Whitman said he was unsure what Mr. Bufano was asking the Board to do with this letter.
Atty. Bostock referred to section 8.2.5 of the Subdivision Regulations which states: "Sidewalks and/or bikeways, where appropriate, shall be provided for pedestrian traffic to provide connection between the subdivision and nearby destinations." He said it is not an unreasonable stretch of the regulation for the board to require a bike path, which they have the authority to do, and make it a condition of approval. It would be a benefit to the new lots as well as the existing lots.
Whitman said it is too late in the process to be making such requests. He said the Board can't force the developer or the engineer to change their plans. Atty. Bostock disagreed and said the board absolutely has the discretion to make that requirement – it's in the regulations.
Doggett said that is a major stretch of the ordinance – sidewalks abut the front of a piece of property – but this would require that somebody maintain a trail through what would normally be their front yard. He added that the board doesn't have the authority to force something as monetarily devastating as something like this would be on a developer. It would be one thing if it were an easement along a back property line or between 2 pieces of property, however this existing trail system was created by a private individual, it has been trespassed upon, no one has a legal right to walk on that property other than the rights of trespass.
Atty. Bostock said to look at adverse possession. Doggett said there is no one here that can claim right to adverse possession. Ms. Bergeron said she has been using the trails with permission for 10 or more years.
Mr. Quintal said adverse possession requires 20 years of use in New Hampshire and the trails were created within the last 10 years or so. He also cautioned the Board that before setting up trail systems the town must determine who is going to maintain the trails, who is going to insure them, and who is going to police them. The Town currently does not have any mechanism in place for putting a public way through private property and the owner is not willing to set up an easement.
Vaillant added that the town lost part of the Peanut Trail because there was vandalism and the town was sued and the property was lost in court. The owner of what is now Walnut Farm Road approached the Conservation Commission at the beginning of the project and willingly deeded the Trolley Way over to the town. That land is deeded to the town, not covered under an easement. She noted that conflicting information had been given regarding the age of the trails.
Doggett said there were a few trails that ran across the property when he was a child, however from Vaillant's earlier description it appears that the trail system has been significantly expanded since that time. Maintaining the extensive trail system would make it impossible to build on the lot. He added that trails have been given to the town in the past (e.g. Trolley Way at Walnut Farm) but the board cannot just take property because it might be in the best interest of the town. Doggett said he does not believe that the Board has the power in the ordinance to compel something like this.
Groth said he does not think that regulation 8.2.5 can be applied because it requires sidewalks to be 6" above grade and designed for handicapped access.
Atty. Bostock said he was looking at the provisions in regulation 8.2.5 that deal with bike paths, not sidewalks so the grade wouldn't apply. He added that there are many organizations in the state that manage easements and trail systems. He said that all land use is negotiation and the board can require the land owner to discuss trail easements.
Atty. Bostock said he would like to preserve the abutters' rights under RSA 673.14 with regard to disqualification of members in that he hasn't had a chance to review whether everyone that should be disqualified is disqualified.
The Board reviewed RSA 673.14. "No member…shall participate in deciding or shall sit upon the hearing…if that member has a direct personal or pecuniary interest in the outcome which differs from the interest of other citizens, or if that member would be disqualified for any cause to act as a juror upon the trial of the same matter…"
Doggett said to the best of his knowledge no one seated at the table is an abutter or has any fiduciary or proprietary interest in the project. Atty. Bostock said he is more interested in the juror standard.
Ms. Bergeron asked if the board would consider an easement along the lot-line and whether a portion of the plan can be approved. Doggett said the developer would not provide an easement – failure to give an easement for a trail is not justification for denial of approval. He also added that the board has to approve or deny the entire project and cannot act on only a portion of the project. She then asked if the easement could be a condition of approval. Doggett said no because the board cannot make something a condition of approval if the board cannot compel the applicant to comply.
Whitman said it is clear that the abutters are not happy with this project and asked what specifically the abutters would like the board to do. Ms. Bergeron said she wanted to be sure the regulations are followed. She said it seemed that a lot of waivers were given and the regulations are not being followed. She also said that the Board can't say that trails are a priority but then when this trail system comes up the Board is not going to look at it because it's the chairman of the board's property and we don't want to ruffle any feathers. She said she was concerned for the integrity of the town board.
Atty. Bostock asked for a continuation so that he could review the materials and with the abutters present a clear direction of what they would like to have happen.
Whitman said that he felt the board had done everything in its power to listen to the abutters' concerns and address each issue. He said the town is in a state of transition because one thing that came out of the Plan NH sessions was to develop a trail system but the concept is new and the details have not yet been defined. Whitman asked if the board had the authority to mandate that the a bike trail be developed and maintained, would that impact the ability of the person who owns the property to develop it as he or she wants to? He said the board can't force the developer to give up a buildable lot.
Vaillant said it can't be mandated, but can be negotiated. She said there is a perception that the board granted the waivers because of the property owner, but as long as they were granted in good conscience and were reasonable about it…
Doggett said the board had been very thorough about the waivers. Part of the problem is that the project was brought to the board before Plan NH and people began the discussion about trails. Early on, the town may have negotiated to purchase the lot with the trails, but something like that cannot be brought into a project this late.
Atty. Bostock asked for the board's opinion as to whether regulation 8.2.5 (Sidewalks and Bikeways) applies in this situation. Milner said sidewalks and bikeways can be requested where the board deems it appropriate. He said this situation is not appropriate because the town does not have regulations or ordinances in place to regulate the maintenance and safety of a trail system at this time. He said that he weighed the land owner's right to develop the land against the abutters' desire to maintain the trails and acted as fairly as possible. He also felt it was too late in the process to request trails.
Gibbs said that a 4 lot subdivision is not large enough to support a trail system. There isn't enough land.
White said it would be unreasonable to ask for another continuation.
Vaillant said she didn't look at it as a 4-lot subdivision but rather an extension of an existing subdivision. She said the board had to represent the town, not just the developer. She said people in the neighborhood have used the trails for years and probably other townspeople did so as well. She agreed with Atty. Bostock that it could be a bike trail.
Mr. Quintal said the new property owners may want to allow neighbors access to the trails and Doggett said that trail easements could still be negotiated with future owners of the property.
Vaillant said she has had issues in the past with snowmobilers coming onto her property at night from a nearby trail. Ms. Bergeron said the Conservation Commission has installed gates at the Busch property to keep people out at night.
Milner moved to grant conditional approval for the 4 lot subdivision at 9 Sarah's Way, Tax Map 10, Block 2, Lot 10-7 subject to the issuance of all required state permits. Second by White. Motion carried unanimously with Miles recused.
Doggett closed the public hearing for a 4 lot subdivision at 9 Sarah's Way.
Miles came back to the table and Whitman stepped down.
3. Glenn Greenwood, Rockingham Planning Commission – continued discussion concerning zoning:
Mr. Greenwood said that Rowe's Corner and Newton Junction would make good village centers but each has its issues. Rowe's Corner has a lot of wetlands and Newton Junction is already substantially built up.
He suggested having a forum for each area and inviting the land owners in to get input. The board would need plan sets made up showing the existing uses in the two areas. He also suggested doing site walks.
Mr. Greenwood said a good village district has a particular identity or character. He suggested discussing the following topics during each forum: what should the character be like, what existed in the past, what worked, what didn't work and what can be addressed by zoning.
Miles asked if the town could take a new parcel of land and create a village district there. Mr. Greenwood said that was done in Windham. Doggett suggested viewing the town hall area as a potential site for a village district and also Cooper's Village.
The board reviewed a Village Center zoning ordinance drafted by David West. Mr. Greenwood said the draft allows too many different uses and suggested striking several of them.
Mr. Greenwood said that over the next months, the board should draft an ordinance to bring to the property owners and begin outreach. He said they should plan to meet on the subject in February or March. Doggett suggested April or May. Mr. Greenwood said he would develop a work program and timeline for the project.
4. Workforce Housing Workshop: Vaillant attended a workshop on Workforce Housing. She briefed the board about the workshop and supplied a copy of the handouts from the meeting. Vaillant said that the town must continue to look into the current inventory of housing stock and do its due diligence in working on the new legislation.
Groth said that according to the law, a zoning ordinance for workforce housing should be on the books by January 10, 2010.
5. Next Meeting: The Planning Board will not meet on December 22, 2009. The next meeting of the Planning Board will be on Tuesday, December 29, 2009. A public hearing will be held for the proposed change to the zoning ordinance regarding the measurement of lot width with respect to curved frontage.
6. Deal Building – Felicia Drive: The two year waiting period has ended for Felicia Drive and the developer, Al Bailey, has requested the release of the maintenance bond.
The town's engineer did a final check of the road and sent an e-mail dated 11/20/09 stating that he has no issues with the road.
Motion by Gibbs to release the maintenance bond for Felicia Drive in the amount of $12,864. Second by Vaillant. Motion carried unanimously.
7. Manifests:
Doggett moved to authorize the chair to sign the NPREA manifest dated 12/8/09 in the amount $1,719.12 and the Operating Budget manifest dated 12/8/09 in the amount $31.98. Second by Gibbs. Motion carried unanimously.
8. Other Board Business:
- Todd Fitzgerald – Pond Knoll Estates: Mr. Fitzgerald requested that the Board refund the remaining NPREA money for this project. The board reviewed a memo from town engineer Mike Vignale dated 11/24/09 in which Mr. Vignale noted several non-compliance issues with the site. The board determined that the funds could not be returned while there are outstanding issues with the town's engineer.
- Variances – White handed out some information to the board concerning the powers of the ZBA.
- Miles thanked the members for their thoughtfulness and everything each has brought to the board in their work throughout the year.
- Aerial Photographs – Gibbs suggested adding a regulation requiring aerial photos of each proposed development site.
9. Adjourn: Miles adjourned the meeting at 10:01 pm.
Respectfully Submitted,
Lisa Babcock
Administrative Assistant
Newton Planning Board
| 
