NEWTON PLANNING BOARD
MINUTES OF PUBLIC HEARING AND WORK SESSION
NOVEMBER 26, 2013
1. Call to Order: Vice Chairman Jim Doggett called the meeting to order at 7:00 pm. In attendance were: Vice Chairman Jim Doggett; Planning Board member Frank Gibbs; Alternates Sandra Estabrook, Jim Holland, and Roger Hamel; BOS ex-officio Charles Melvin; and Circuit Rider Planner Jennifer Rowden. Minutes were transcribed by Administrative Assistant Rick Milner.
Doggett appointed Estabrook to stand in for White.
Doggett appointed Hamel to stand in for Blanchette.
Doggett appointed Holland to stand in for Miller.
2. Lewis Builders Development, Inc. in Atkinson, NH, on behalf of Father and Son Realty Trust in Newton, NH, continuation of a public hearing for a site plan review of a proposed voluntary lot merger of the properties referenced as Tax Map 7, Block 4, Lot 5 and Tax Map 8, Block 3, Lot 11. The purpose of the lot merger is to expand the Sargent Woods elderly housing condominium community. The application is being submitted per the regulations found within Section XXXI Residential Open Space-Cluster Development and Section XXXII Elderly Housing of the Town of Newton Zoning Ordinance. The properties are referenced as Tax Map 7, Block 4, Lot 5 and Tax Map 8, Block 3, Lot 11.
Hamel and Holland stepped down from the Board.
Joshua Manning of Lewis Builders Development, Inc. addressed the Board. Mr. Manning stated that Lewis Builders had received Town Counsel’s letter regarding the site plan’s non-conformance to the zoning ordinance due to Lot 7-4-5-1 not meeting the frontage requirements of the ordinance. Mr. Manning presented a response letter from Lewis Builders’ counsel.
Mr. Manning stated that there was some pertinent information that the Town Counsel may not have received prior to creating his letter such as:
- the cover page of the final revision to the approved plan for the original Fitzgerald Estates project and the sheet recorded for the project show that the proposed road was to be a private road
Milner stated that Town Counsel was made aware of the documents presented by Lewis Builders. Milner further stated that, regardless of the information presented by Lewis Builders, the Board has the authority to resolve the matter in such a way that the proposed site plan conforms to the zoning ordinance.
Manning presented a history of how Lot 7-4-5-1 was created by showing the Board previously approved lot line adjustment plans.
Manning stated that the proposed site plan has a public access easement agreement between Lots 7-4-5 and 7-4-5-1 included to provide the property owner of Lot 7-4-5-1 the same access rights along the proposed private road as he would have along a public road. This is the same access easement that was included in the approved plan for the original Fitzgerald Estates.
Manning further stated that to create a town road to access Lot 7-4-5-1 would not be in the town’s best interest due to lost taxable land and increased maintenance costs for the town.
Rowden stated that the site plan as proposed cannot go forward. The proposed site plan does not conform to the zoning ordinance.
Robert Levine of Lewis Builders addressed the Board. Mr. Levine stated that Lot 7-4-5-1 is a separate lot from Lot 7-4-5 on which the development in the proposed site plan will occur. Lot 7-4-5-1 is a non-conforming lot that is not a part of the application at all.
Doggett stated that, since the proposed site plan before the Board now is a new plan different from the approved site plan for the lots, what was originally approved goes away. The Board does not have the right to adversely impact a lot contrary to the zoning ordinance.
Milner stated that Lot 7-4-5-1 is linked to the proposed site plan because the proposed private road for the Lot 7-4-5 project crosses onto Lot 7-4-5-1 and easement agreements exist between the two lots. Lot 7-4-5-1 is a part of the proposed site plan application because the proposal could not exist as presented without the connection to Lot 7-4-5-1. The Board cannot approve a plan that allows a non-conformance to the zoning ordinance.
Doggett stated that, since the original approvals go away with the introduction of a new plan for the site, the Board must do what is just and right for all tax payers and the town’s interests when considering the new plan.
Levine stated that Lewis Builders understands that the proposed site plan is a new application with a substantial revision. However, it may not be in the town’s best interest to take on the added expenses associated with the creation of a public road for the sake of one lot.
Milner stated that the Board is not necessarily suggesting that a town road needs to be built. As presented, the proposed site plan cannot be approved due to its non-conformance to the zoning ordinance. Whatever options it chooses to use, the applicant should present a proposed site plan that conforms to the zoning ordinance.
Mr. Manning, Harold Morse of Lewis Builders, Todd Fitzgerald of Father and Son Realty, and the Board discussed some options to bring the proposed plan into conformance with the zoning ordinance.
Gibbs stated that he does not see a problem with the site plan as presented.
Melvin stated that, if the site plan was approved as presented, the town could be sued in the future. The town could possibly lose hundreds of thousands of dollars because the town did not act appropriately.
Gibbs stated that other options (such as moving the access road entirely onto Lot 7-4-5) will still leave Lot 7-4-5-1 as a non-conforming lot. The best thing is to let the proposed site plan go as it is.
Rowden stated that there are a number of ways to resolve the problem with the site plan. She offered to meet with the applicant to discuss possible options to pursue.
Melvin moved to continue the public hearing to the December 10, 2013 meeting. Second by Gibbs. Motion carried unanimously.
3. Other Board business.
Hamel and Holland returned to the Board.
a. Review of performance guarantee estimate for Kinsley Corner project.
Town Engineer Michael Vignale, Charles Zilch of S.E.C. and Associates, Inc., and Bill Bartlett of RTW, LLC were present.
Doggett presented the roadway performance guarantee estimate prepared by the Town Engineer for the Kinsley Corner project.
Melvin stated that he believed that the performance guarantee estimate was high.
Gibbs asked the Town Engineer if prevailing wages are considered when the performance guarantee estimate is developed.
Mr. Vignale stated that he considered the costs that the town would incur if the town had to build the road after a developer defaulted. The figures are based on his bidding experience in recent years for town roads.
Gibbs listed several items on the estimate that he believed to be considerably high based on his construction experience.
Mr. Vignale acknowledged that a private developer could perform the construction less expensively than a town. The estimate figures are consistent with other estimates produced for other town roads in the past.
Mr. Zilch asked if the Board would consider approving the establishment of a restoration bond for a partial amount of the total roadway performance guarantee. This would allow the applicant to move forward with construction of the roadway at less initial expense and still provide the town with a guarantee to restore the land in case the developer defaulted. The remainder of the roadway performance guarantee could be provided at some later point (such as prior to recording the plan or issuing building permits).
Milner stated that he believes that the Board should remain consistent with the processes that the Board has used in the past regarding performance guarantees. The estimate for the Kinsley Corner project is consistent with past estimates. The Board should protect the interests of the town.
Doggett suggested that the Town Engineer develop a restoration bond figure that will be deposited prior to construction of the roadway. Then, prior to the issuance of foundation or building permits, a roadway performance guarantee estimate will be developed and deposited based on the amount of construction completed at that time.
Hamel moved that the Planning Board direct the Town Engineer to prepare a restoration bond estimate for the Kinsley Corner project. Second by Melvin. Motion carried unanimously.
Melvin moved that the Planning Board authorize the Town Engineer to have a pre-construction meeting for the roadway associated with the Kinsley Corner project. Second by Gibbs. Motion carried unanimously.
b. Acceptance of minutes.
Melvin moved to accept the minutes of the November 12 meeting. Second by Hamel. Motion carried unanimously.
c. Manifests.
Doggett presented a NPREA manifest to the Board. The invoices reflected payments to the Town Engineer for review of Sargent Woods expansion plan and site visits to Sargent Woods original project.
Gibbs moved to pay the NPREA manifest in the amount of $1,671.30. Second by Melvin. Motion carried 4-0-2 with Hamel and Holland abstaining.
d. Correspondence.
Rowden presented the circuit rider planner contract to the Board. The contract provides the Town of Newton with circuit rider planner services from the Rockingham Planning Commission for December 2013 to June 2014. Another contract will be provided at a later date for the remainder of 2014.
Doggett noted that the number of meetings used to calculate the amount of hours paid for in the contract is in excess of the actual number of meetings that will occur.
Melvin suggested that the figures remain unchanged. The extra meeting hours could be used for other services.
Holland moved that the Planning Board authorize the Vice Chairman to sign the RPC circuit rider planner services contract. Second by Melvin. Motion carried unanimously.
4. Adjourn: The meeting was adjourned at 9:05 pm.
Respectfully Submitted,
Rick Milner
Administrative Assistant
Newton Planning Board
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