NEWTON PLANNING BOARD
MINUTES OF PUBLIC MEETING
JANUARY 12, 2010
1. Call to Order:
Chairperson Ann Miles called the meeting to order at 7:03 pm. In attendance were: Chairperson Ann Miles; Vice Chairman Jim Doggett; Planning Board members Barbara White and Frank Gibbs; and Alternate Rick Milner. Minutes were transcribed by Administrative Assistant Lisa Babcock.
Also in attendance: Circuit Rider Planner Brian Groth and Fire Chief Bill Ingalls.
Miles appointed Milner to stand in for Pettit for the evening.
2. David Morgan: Discussion regarding a Home Based Business at 7 Valley Drive. In attendance were David and Grace Morgan. Mr. Morgan addressed the Board.
Mr. Morgan stated that he had previously owned and operated Dave's Sporting Goods a gun shop in Plaistow, NH. He sold the business and retired in April. He maintains a federal firearms license and intends to continue to sell firearms and accessories to friends and former customers on a small scale from his home. Additionally, Mr. Morgan sells firearms at trade shows – approximately 3 shows per year. He also does internet sales (33 since April); most of those sales are to out of state federally licensed dealers.
He has an agreement with the person who purchased Dave's Sporting Goods that he could continue to sell to former customers on a small scale.
Mr. Morgan said that for sales to friends, they would special order something, then come to his house and fill out forms. Mr. Morgan verifies the information and contacts the FBI or state police before completing the sale.
Mr. Morgan said his house is a single family home on Valley Drive. There are 5 homes on the street. He has lived there for 5 years. Mr. Morgan has spoken to several of his neighbors about the business and gave letters to his neighbors explaining his business.
Miles explained that Mr. Morgan had attended a Technical Review Meeting and that Fire Chief Ingalls and Police Chief Streeter also attended that meeting.
Chief Ingalls said that he also has a federal firearms license and lives in a similar neighborhood. He has been selling firearms to friends for about 15 years. He sells about 3 or 4 firearms per year and has never had any issues.
Miles pointed out that the Country Pond Fish and Game Club also has a federal firearms license and is located in the same area as Mr. Morgan. Chief Ingalls said the CPF&GC sells firearms to its members.
Milner asked Mr. Morgan to verify that firearms sold over the internet are only sold to other federally licensed firearms dealers. Mr. Morgan confirmed that and explained the process by which he checks to make sure that the customer's license is current and valid.
Milner asked Mr. Morgan to estimate the number of people that would be coming to his house each year for a sale. Mr. Morgan said there were about 16 or 17 in the last 8 months and he does not anticipate that to change much. White added that the bulk of the business seems to be in internet sales and gun shows. Mr. Morgan agreed.
Miles read a portion of a letter from Police Chief Streeter dated November 20, 2009. "I advised the applicant that I do not have an issue with signing his application if he could assure me that sales and/or firearms transfers would not occur at his residence, thereby preserving the residential integrity of the neighborhood. There are no guarantees that this position would withstand legal challenge and I understand that the applicant has obtained legal counsel, but this is my opinion and posture regarding this issue until I am advised otherwise."
Mr. Morgan explained that he is required by the bureau of Alcohol, Tobacco and Firearms to have a state issued license to sell pistols and revolvers. He submitted that to Chief Streeter. He also must comply with local ordinances.
Milner said that the Chief's main concern seemed to be a "transient element" going in and out of the neighborhood. He asked Mr. Morgan how he meets the majority of his customers. Mr. Morgan said his customers are friends and former customers from when he owned the business in Plaistow. He also wanted to make it clear that background checks are done by the FBI or State Police depending upon the type of firearm sold.
Doggett said that once this is approved, it falls out of the Planning Board's hands. He asked how Mr. Morgan planned to advertise. Mr. Morgan said that in accordance with his agreement with the person who purchased his Plaistow business, he cannot advertise or compete with that business. He said he had a small sign in his garage, but took it down a few months ago.
He said he does not plan to do any advertising or have any signs, or display cases.
Groth pointed out a couple of sections in the zoning ordinance that the board should take into consideration:
Section III, C, b No toxic, explosive, flammable, combustible…or other restricted materials that are improperly used or stored onsite.
Section III, C, g No process shall be utilized which is hazardous to public health, welfare or safety.
White said that since there are already two similar businesses in the same area, she doesn't see this as a problem. (The businesses are Chief Ingalls' home occupation and the Country Pond Fish and Game Club.)
Groth asked if there are any other home occupations in the residence. Mr. Morgan said no.
Miles said she has some concerns. She said she would like to go with Chief Streeter's recommendations. She also asked if the ammunition is in some kind of contained area where it can't be a hazard. She said that the "transient" factor, people coming and going, is a concern. She said, how can the board track that? How many people coming and going are too many? She also pointed out that the business could not be sold with the home.
Mr. Morgan said he sees it more as a hobby or home occupation rather than a home business because he doesn't have people coming in to view displays – the home sales are 99.9% special order. He suggested that the board approve the business for a specific time frame such as one year and then review the business to see if there were any issues. Groth agreed that this was a good idea.
Milner said he wanted to get input from the abutters. White said maybe Mr. Morgan could give the Planning Board a list of how many guns are sold out of his house every six months to see if it's too much traffic.
White said that if there were to be a public hearing then the abutters would be noticed. Mr. Morgan said he felt it was more of a home occupation – which does not require a public hearing. He said nothing is on display, all the inventory is in boxes. Groth said for a home occupation customers can't be coming to the property.
Doggett said that it is probably a home based business. He said that probably a condition of the license is that he does run a business. Mr. Morgan said there is no maximum or minimum number of sales required to have a license but he has always understood it to mean that the license holder is in the business of selling firearms – not just adding to his personal collection.
Doggett also said that since the number of at home sales (17) is the bulk of the business (compared to at gun shows) it can be considered a home based business.
Groth said that Chief Streeter is asking that the business be restricted to a home occupation and not allow people to come to the home to pick up firearms.
Miles said that a public hearing should be held.
Milner moved to hold a public hearing for a home based business at 7 Valley Drive. Second by Gibbs. Motion carried unanimously.
Chief Ingalls asked if a precedent had been set by a previous board by granting him a home occupation to sell firearms. Doggett said he was grandfathered in because he started the business before the home business ordinance was passed.
3. Plan NH – Miles noted that the charrette books had been received. The board discussed dates for Plan NH's presentation to the public. The board discussed having the presentation on the same night as the deliberative session but decided that there was not enough time to pull that together.
The Board decided to
- Have the presentation in March at the Middle School on either the 14th, 21st, or 28th.
- Have the moderator inform the public about the date of the presentation at the deliberative session.
- Have a display and hand out prepared for voting day.
The secretary will contact the principal of the middle school and superintendant of the board's intentions and contact the moderator.
Miles asked if the school might waive the fee for using the school. Doggett said that all the other groups that use the school on weekends are required to pay the fee.
The board also decided to push the study circle back to March and see if the sessions could be held at Merrimack Bank.
4. Minutes:
Doggett moved to approve the minutes of 12/29/09 as written. Second by Gibbs. Motion carried unanimously.
5. Manifests:
Doggett moved to authorize the chair to sign the Operating Budget manifest dated 1/12/10 in the amount $71.50. Second by Gibbs. Motion carried unanimously.
6. Discussion regarding invoices for the Pond Knoll subdivision:
The secretary stated that there are two invoices from KV Partners for site visits to Pond Knoll estates – one for $169.76 and one for $299.20. Mr. Fitzgerald had originally agreed to pay the one for $299.20 but disputed the one for $169.79. However, he had submitted a letter to the Board today disputing both invoices.
Milner said that the discussion at the last meeting was that the engineer went out to the site and the Board was not aware that he was sent there and that the board should approve these visits ahead of time. He said the board could not find in the minutes where any of this was approved.
Miles explained that the procedure is that a pre-construction meeting is held with the developer, his contractor and the town's engineer. That pre-construction meeting drives the project. So, if a developer says he's going to stabilize a site for winter and then not do any further construction, that's fine. Mr. Fitzgerald had problems with rain and stabilization – similar to what happened on Katherine Drive.
Miles said if the town engineer has to go back after a significant rain and notes that the site has not been stabilized, he will go back to check it again. That's something that should not have to run through each planning board meeting. He's being driven by the pre-construction meeting, when people say they're going to do things, and the weather conditions that might impact the site. The town engineer is not supposed to go out every week, but, especially with a sensitive site like Pond Knoll, he might well go back to make sure that the stabilization that is required was put in and that it held after a storm.
White said one of the things that had been discussed was that there wasn't a pre-construction meeting because the construction was only on the three houses, not the road.
Miles said there was a pre-construction meeting and that she was present. She told the developer that he needed to fill in the construction checklist indicating when he would be performing each task and when the site would be stabilized for the winter. The developer did indicate that he would be working on the site through the fall.
Milner said at the last meeting there was some dispute as to whether there was a pre-construction meeting and that the board was not kept informed if there was a pre-construction meeting. The board's main concern was that the board had no knowledge of it and should have been informed. If a member of the board meets with someone it needs to be documented.
Miles said it is the developer's responsibility to set the schedule for work and to inform the board of that schedule. Milner said the board didn't know about the initial meeting. Doggett said no one knew that the pre-construction meeting had or had not been held. The developer said he did not have a pre-construction meeting and the board could not verify whether there had been one or not.
Gibbs noted that on the invoice from KV Partners it says "Work this period included attendance at a preconstruction meeting on October 23rd, a follow up site visit on October 30th to check on the winter stabilization progress and associated memos." Doggett pointed out that that information was not available at the last meeting. Milner said the fact that a pre-construction meeting had been held should have been brought up to the board.
The secretary had researched e-mails and minutes and stated that in the minutes of September 22nd it states: "The Board was informed that Mr. Fitzgerald had begun work on the Pond Street subdivision known as Pond Knoll Estates…Mr. Fitzgerald should arrange for a pre-construction meeting with the town's engineer." After that meeting, Mr. Fitzgerald was informed that he needed to set up a pre-construction meeting with the town's engineer and on or about October 8th, Mr. Fitzgerald did contact Mr. Vignale to arrange for a pre-construction meeting.
Gibbs said that at the time Mr. Fitzgerald had already started the work. That was part of the problem there was no pre-construction meeting at the start of the project. The meeting of the 23rd is being called a pre-construction meeting but it was not "pre" construction. Gibbs said that he's been pushing for pre-construction meetings to occur before the lumber is cut on the lot because the tractors are working on the site.
Doggett said the construction is being "phased" but was presented to the board as one project.
Miles said the town engineer is very conscientious about visiting sites – he's very respectful of the schedule.
White moved to send a letter to Mr. Fitzgerald indicating the date of the pre-construction meeting and explain that the follow-up was to ensure that the stabilization work had been completed and that he will be required to pay both amounts ($299.20 and $169.76) and also to include documentation for Mr. Fitzgerald. Second by Doggett. Motion carried unanimously.
Gibbs said that a pre-construction meeting is to set up the rip-rap for the entrance and all of that and since a logging truck is coming and going and that's when the pre-construction meeting should be held. He said developers think that pre-construction is when the road is put in, not when they start cutting trees.
Doggett suggested that the regulations be changed to say that a pre-construction meeting is required before any site work is done.
The secretary asked if a second pre-construction meeting will still be needed before construction begins on Zena Lane. Doggett said yes, that's when the bond will be established for Zena Lane.
7. Puzzle Lane Excavation:
The Board reviewed a memo dated January 6, 2010, from the town's assessor, Andrea Lewy regarding Puzzle Lane.
Miles asked if there were plans recorded for the lots. There are no plans recorded for Lot 27-4. For lot 27-3 a phase I plan has been recorded and a phase II plan was approved but not yet recorded.
White said there should be no excavation on land in current use. Gibbs said the land should be out of current use and code enforcement should stop the work.
Gibbs said the selectmen are the ones to take land out of current use. Miles said a permit to excavate is required.
White moved to issue a cease and desist ordering Mr. McDonough to stop all excavation on land in current use or lacking a permit for excavation and also to send a letter to him and cc the Board of Selectmen explaining everything that is outstanding for this property including getting the land out of current use and getting a permit for excavation. Second by Doggett. Motion carried unanimously.
8. Home Based Business at 41 Currierville Road: The board briefly reviewed a Home Based Business Information form for 41 Currierville Road. Groth said that he noticed that the sign size is too large (2 sf maximum is allowed). Mr. Lospennato will attend a technical review meeting on January 18th.
9. Sign at Newton Learning Center:
Gibbs moved to have the code enforcement officer look into the new sign at the Newton Learning Center as it appears to be on town property. Second by Doggett. Motion carried unanimously.
10. Adjourn: Doggett moved to adjourn the meeting at 8:34 pm.
Respectfully Submitted,
Lisa Babcock
Administrative Assistant
Newton Planning Board
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