NEWTON PLANNING BOARD
MINUTES OF PUBLIC MEETING
JANUARY 26, 2010
1. Call to Order:
Chairperson Ann Miles called the meeting to order at 7:00 pm. In attendance were: Chairperson Ann Miles; Vice Chairman Jim Doggett; Planning Board members Kim Vaillant, Barbara White, Frank Gibbs and Kim Pettit; and Alternates Rick Milner and Chuck Whitman. Minutes were transcribed by Administrative Assistant Lisa Babcock.
Also in attendance: Circuit Rider Planner Brian Groth, Charles Melvin, Sr. and Code Enforcement Officer Steve Duncanson.
2. Thomas Martin – Discussion Regarding Accessory Apartment at 37 West Main Street (Tax Map 6, Block 7, Lot 7).
Mr. Martin said that he owns the home at 37 West Main Street and there is an existing accessory apartment in the home. He would like to get a conditional use permit for the apartment.
Code Enforcement Officer, Steve Duncanson said he has looked at the apartment and said that it meets all of the qualifications for an accessory apartment listed in the ordinances.
Mr. Martin said the home has 3 bedrooms – 2 in the main house and 1 in the apartment. He said that his son lives in the apartment.
Milner referred to a letter from the Code Enforcement Officer to Mr. Martin dated January 11, 2010 in which Mr. Duncanson states that the unit is approximately 950sf. The ordinances allow a maximum of 800sf or 1/3 of the total gross floor area, whichever is less.
Mr. Duncanson said that a portion of the 950sf is storage space and can be excluded from the total. Doggett asked if the storage area is finished living space. Mr. Martin said it is insulated and sheet rocked, but there is no door. Doggett asked how the storage area is accessed. Mr. Martin said it is accessed through the apartment.
Miles asked Mr. Duncanson to give the board his definition of an accessory apartment. Mr. Duncanson said a separate living area with one kitchen, one bathroom, one bedroom, an exterior entrance and an interior entrance to the main dwelling constitutes an accessory apartment. He also said the owner of the home must occupy either the apartment or the main dwelling and the apartment can be leased or rented. The utilities must be common to both living areas.
Pettit asked if the storage space has windows. Mr. Martin said it does. Mr. Duncanson said it doesn't have a closet so it cannot be considered a bedroom. Doggett pointed out that it is habitable so it could be used as a living room. He said that even though it is used as storage now, it could eventually end up being turned into a bedroom. Groth said the owner wouldn't have a permit for it. He also pointed out that since both living units have to be connected by common areas, at what point do you stop counting space as belonging to the accessory apartment?
Doggett said the storage unit is part of the apartment because it is only accessible through the apartment. Mr. Duncanson suggested putting a door with a lock on the storage area to block access to it.
Miles said that if the Code Enforcement Officer says that the apartment meets the regulations, she doesn't want to second guess his professional opinion. Mr. Duncanson said the apartment meets all the requirements.
Milner said in the future someone could use the storage room as living space, effectively expanding the square footage of the apartment to 950sf, which is clearly against the ordinance. He said his opinion is that the size of the apartment is over the limit and that the board would be setting a bad precedent by allowing it.
White said that although only members of Mr. Martin's family currently live in the house, the board must consider what would happen if he sells the home.
Groth suggested making the conditional use permit conditional on Mr. Martin's ownership of the home. Several members of the board agreed that this would be a reasonable solution.
Mr. Martin asked if he could just remove the doorway. Vaillant asked if this could be an alternative solution. Would the apartment, without a door, be considered part of the main house? Mr. Duncanson said that creates the same sort of situation – with the current owner, that would be fine, but the next owner could put the door back on and it would be back to being an un-approved accessory apartment.
Vaillant said but for this particular case, for this particular owner, if the door was removed, then it would meet code. Mr. Duncanson said yes, but it would be impossible to monitor when the house was sold. The ideal situation is to get the apartment approved.
A public hearing was tentatively scheduled for March 23rd. The secretary will forward information to Mr. Martin concerning the requirements for the public hearing.
Whitman asked if this relieves Mr. Martin of the burden of coming into compliance by February 28th and being subject to the $275/day fine (as stated in the 1/11/10 letter). Mr. Duncanson said yes because Mr. Martin is actively working with the board to get the apartment into compliance.
3. Charles Morrill – Discussion Regarding Accessory Apartment at 61 Peaslee Crossing (Tax Map 7, Block 5, Lot 1).
Mr. Morrill gave a brief history of the ownership of the property. He stated that between 1977 and 1983 Richard and Virginia Cass owned the property and in 1984, the couple divorced and the property was quit-claimed to Virginia.
Around that time, Ms. Cass approached the board of selectmen to ask if she could have an apartment in the home because she was having extreme financial difficulty and would lose the home without the rent. An apartment was built and rented out.
Mr. Morrill purchased the home in 1999 and was under the impression that the apartment was legal and for the last 9 years one tenant has lived in the apartment. In 2004 Mr. Morrill was forced to move due to requirements of his job; however he still owns the home. Recently, Mr. Morrill went to refinance the home and learned through the bank that the apartment did not appear to be approved. He approached the board because he wants to get things straightened out.
He said that the 695sf apartment meets the requirements of the zoning ordinance except that it does not have direct access to the primary dwelling unit – but according to Section XXVI.17, existing structures are exempt from this condition. There isn't a connecting door, but he would put one in if the board wants him to. Also, he does not live in the home; he rents it to a couple who has lived there for 5 years.
The home has a total of 4 bedrooms (including the apartment) and shared utilities. The septic design is approved for 4 bedrooms.
He wants to rectify the situation and not have to throw out his tenant.
Vaillant said that according to the ordinance, the homeowner must live in the home. She asked if the home is sold, does the accessory apartment go away? If the structure is legal and the owner lives in the home – but later moves out and rents the home, how could the board monitor that? Mr. Duncanson said the only way the town would know would be if a complaint was made.
Miles asked Mr. Melvin if the case could be brought to the ZBA. Mr. Duncanson said hardship would have to be shown. There may be a financial hardship and there is a hardship in that his job requires him to live within a certain radius – so Mr. Morrill cannot live in Newton and keep his job.
Mr. Morrill asked if the approval could be conditional and only allowed as long as he owns the home. He said if he had known there was a problem when he bought it, he could have gone before the board at that time – when all of the conditions could have easily been met. Mr. Morrill said the zoning ordinance doesn't say that if a person moves, he must give up the apartment. He said the conditional use permit doesn't go with the person, it goes with the land.
Miles said the Technical Review Committee was discussing the concept of an "amnesty program" in order to get everyone who has an undocumented accessory apartment to come into compliance.
Vaillant said she is concerned that Mr. Morrill is coming forward to rectify the situation and the board seems unable to help him resolve the problem. Milner said that the board cannot make exceptions because everyone will be expecting exceptions to be made and the ordinances will become meaningless. He said that maybe there is something in the ordinance that needs to be changed.
Mr. Duncanson said the town of Milford is also looking into doing some kind of an amnesty program and they are researching similar work done in other towns. He suggested tabling this application for now and working on an amnesty program for the near future.
Gibbs asked if there is currently a complaint against Mr. Morrill. Mr. Duncanson said there is no complaint against him. Pettit said the Planning Board doesn't have jurisdiction here because Mr. Morrill has an avenue for relief and that's to go to the zoning board.
Mr. Morrill asked if his tenants set up a lease as cohabitants, would that solve the problem. He was concerned about the code enforcement officer taking action against him. Mr. Duncanson said that right now he has no legal action against Mr. Morrill because he has an application in to the board and is taking steps to bring the property into compliance.
White moved to table the discussion concerning the accessory apartment at 61 Peaslee Crossing. Second by Pettit. Motion carried unanimously.
4. Lewis Builders - Discussion Regarding Status of Sargent Woods Senior Housing Development.
Joshua Manning was present to represent Lewis Builders. Mr. Manning explained that Lewis Builders has acquired the Sargent Woods property and will be taking over the project.
Mr. Manning said Lewis Builders plans to get the existing homes ready to be sold. One unit has an occupancy permit, the other three do not. In the spring, Lewis Builders plans to slowly continue to build out Phase I and then proceed with the rest of the project as the economy allows. He further explained that a company affiliated with Lewis Builders owns the water rights to that project (Hampstead Area Water Company). The final description of the franchise area is the property boundary – approximately 65 acres.
The board reviewed the status of the bonds and permits. The Alteration of Terrain permit expires June 30, 2010. Mr. Manning explained that when DES issues a permit for a subsurface system it is good for 4 years. Two of the subsurface systems (CS2 & CS3) have been installed, once the system is installed and approved, the permit is no longer needed. CS4 & CS5 are part of Phase III and IV and a permit request must be re-submitted to DES.
Mr. Manning asked if the town was holding some of the bond money in an account. The Board confirmed that that is true. The drawdown was based on an engineer's letter dated March 27, 2009. Mr. Manning asked if the town had any plans to do any of the work described in the engineer's letter. Miles said the town did not have any plans to do any of the work.
Pettit said she thought the town might be required to finish the work it had drawn the money for. She recalled a similar situation with money drawn for paving Grebenstein Drive. Pettit recommended checking with the Board of Selectmen or Town Counsel to determine what should be done with the bond money.
Mr. Manning said that Lewis Builders' plan is to take care of the punch list in the March 27th letter as soon as the snow melts in the spring. Mr. Manning asked how much of a bond Lewis Builders would be required to put up for the project. Miles said the town engineer would determine the amount. She suggested that Lewis Builders give the planning board a letter stating their plans for the rest of the winter and spring. She also recommended that they set up a preconstruction meeting with the town's engineer when they are ready to get started.
Miles also suggested that they bond the street (Smith Corner Road).
Pettit said the First Tennessee Bank letters of credit are still issued to Ned Nichols (the original owner of the project). She said that subject to an inflationary adjustment from the engineer, the board could just ask Lewis Builders to replace those bonds and the town could hold the money it already has as the remainder of the bond.
Gibbs asked who the money being held actually belongs to. Doggett said that should be determined by town counsel. He said there is probably something in the sale agreement that details who gets what, but town counsel must decide.
Vaillant said that the board had already determined the bond amounts for the different phases and that should be used as the base line. She suggested giving that information to Lewis Builders.
Doggett asked if the existing occupancy permit had expired. The code enforcement officer said COs don't expire.
Mr. Manning said they are working on getting an intent to cut and will begin cutting down trees.
Pettit asked if the board wants to require a pre-construction meeting to re-start the project. Miles said yes, Lewis Builders needs to provide a time line of what work they plan to do and when they will do it, and they also need to meet with the town's engineer. Mr. Manning said they will start with the letter of intent and go from there.
Mr. Manning asked about the outstanding NPREA bill. He asked if the bill can be paid from the draw down. The Board said it could not be paid from the bond. The board said the town engineer can give an estimate of the amount that will be needed for a NPREA deposit.
5. Interstate Rigging – Ed Wallace was in attendance. He explained to the board that he recently purchased Unit # 6 at 6 Puzzle Lane. He said that his business moves and stores heavy equipment – its dead warehouse space.
Gibbs said that there should be an occupancy permit on the building and then one on each unit. There was some question as to whether or not there were occupancy permits on the building and/or units. Mr. Wallace said he was told by the building inspector to get approval from the planning board and then to go back to the building department for inspections.
Mr. Wallace said the issues with the sprinkler system have been resolved.
Gibbs asked if everything would be stored inside. Mr. Wallace said yes.
Pettit moved to revoke the Commercial Business Form approval for Richardson Steele and to approve the Commercial Business Form for Interstate Rigging. Second by Doggett. Motion carried unanimously.
The Code Enforcement Officer left at 8:22 pm.
6. Plan New Hampshire Update: Groth said that Glenn Greenwood plans to attend the next meeting to continue discussion.
Miles asked the secretary to find out why each grant was listed in the Plan NH charrette book. Vaillant and Doggett said they are interested in working on finding grants.
The Board discussed the areas to be included in the Village Centers. Newton Center should be extended down to Peaslee Crossing and Rowe's Corner to Heath Street.
The Board chose March 21st at 1:30 at the Town Hall for the charrette presentation.
7. TRC Minutes – The Board reviewed the Technical Review Committee meeting notes from 1/18/2010. Vaillant said the board should look into whether there are RSAs that may prohibit someone from running an auto shop in a residential area and to get that information to the Board before the public hearing for Mr. Lospennato.
8. Denials – The board discussed issuing denials. Pettit said in September 2006 the board voted to have the circuit rider represent the Planning Board in determining the completeness of applications and their conformance with zoning. She said that as part of that, the circuit rider would issue denials from time to time.
Groth said decisions on plans, including the issuance of denials should take place at a public hearing.
The board discussed Mr. Burns' request for a denial for a home based business sign so he could get a variance from the ZBA. It was determined that the board already requested that Mr. Burns submit a description of the sign before a denial could be issued.
9. Minutes:
Doggett moved to approve the minutes of 1/12/2010 as written. Second by Gibbs. Motion carried 4-0-2 with Vaillant and Pettit abstaining.
10. Manifests:
Doggett moved to authorize the chair to sign the NPREA manifest dated 1/26/10 in the amount $770.56. Second by Gibbs. Motion carried 5-0-1 with Vaillant abstaining.
11. Discussion regarding invoices for the Pond Knoll subdivision: The board reviewed a letter from Mr. Fitzgerald dated 1/4/10. After some discussion, the board decided that the decision to have invoices billed to the project for a pre-construction meeting paid out of the NPREA account will stand.
The board then discussed Mr. Fitzgerald's request for permission from the Planning Board to work with the Building Department to obtain an occupancy permit for the second floor of the restaurant at 85 South Main Street.
White noted a sentence in Mr. Fitzgerald's letter, "I question why a new planning board approval is required when the use has not changed." White said the fire codes have changed, that's the issue.
Pettit said they are expanding to the second floor. Vaillant said they had previously used the second floor. She said the owners voluntarily stopped using the second floor due to changes in the fire code. She noted that Mr. Fitzgerald did submit a new site plan for the whole building. She said he just needs to work out the sprinkler system issues with the fire department.
White moved to send a letter to Mr. Fitzgerald stating that the board will require that the outstanding invoices be paid from the NPREA account, going the forward the board will be clearer in its communication of meetings with the engineer, and that regarding the Hen House using the second floor, the planning board received an updated site plan and he is cleared to work with the building department and fire department to get the building up to code. Second by Vaillant. Motion carried unanimously.
12. Charles Melvin – Mr. Melvin informed the Board that he will be running for selectman and would like to be the selectmen's liaison to the Planning Board if elected.
13. Adjourn: Miles adjourned the meeting at 9:47 pm.
Respectfully Submitted,
Lisa Babcock
Administrative Assistant
Newton Planning Board
| 
