NOTTINGHAM PLANNING BOARD MINUTES
JUNE 6, 2007
PUBLIC MEETING/HEARING
NOT FINAL UNTIL APPROVED BY THE BOARD
PRESENT: ABSENT:
Mr. Dave Smith, Chair Ms. Gail Mills
Mr. Peter Gylfphe Mr. Peter Bock, Selectmen’s Representative
Mr. Mark Harding
Mr. Bob Davidson
Mr. Mary Bonser, Selectmen’s Representative Alternate
Mr. Scott Curry, Alternate
OTHERS PRESENT:
Atty. Michael Donovan, representing Concerned Citizens for the Preservation of Nottingham Square
Atty. Christopher Boldt, DTC
Atty. Teague, Upton & Hatfield (arrived @ 7:25 PM)
Mr. Peter Landry, Surveyor
Mr. Joseph Welch, Nottingham Historical Society
Mr. Dave Garvey
Ms. Charlene Anderson
Mr. Jim Fernald, Abutter
Ms. Cheryl Smith, Conservation Commission
Ms. Deborah Stevens, Abutter
Ms. Barbara Fernald, Abutter
Mr. Dave Fernald, Abutter
Mr. Charles Bellerose, Nottingham Resident
Mr. Roscoe Blaisdell, Surveyor
Mr. Bernard Adams, Applicant
Ms. Paige Witham, Applicant
Ms. June Chase, Nottingham Historical Society
Mr. Robert Chase, Nottingham Historical Society
Ms. Regina Splaine, Abutter
Mr. Dan Splaine, Abutter
Mr. Richard Ladd, RSL Layout & Design
Ms. Traci Chauvey, Planning Board Secretary
Ms. Michelle Beauchamp, Strafford Regional Planning Commission
Chair Smith called the meeting to order at 7:05 PM.
BOND UPDATE – ROUTE 4 REALTY TRUST – BROOKS CROSSING:
Chair Smith read for the record a letter from Mr. Joseph Falzone, which stated the Planning Board would receive a replacement Letter of Credit in the amount of $203,547.19 by June 15, 2007.
Chair Smith asked Ms. Beauchamp to follow up with Ken Berry to find out if there had been a written report completed on Sophia Way since the flooding.
PUBLIC HEARING CONTINUANCE – WITHAM, JONATHAN & MARY PAIGE – LEDGE FARM ROAD – MAP 59 LOT 37 – CASE #P07-03-SUB:
The Chair opened the public meeting on Case #P07-03-SUB, Map 59 Lot 37, at 7:15 PM.
Attorney Boldt spoke in representation of the Withams. He confirmed with Ms. Chauvey that both the driveway permit for proposed Lot 37-1 and the recommendation from the Nottingham Fire Department had been received, noting that the applicant was choosing to have sprinklers installed in the homes instead of installing a cistern.
Attorney Bolt and Attorney Teague concurred that Note 5 was fine as written. At Chair Smith’s request, Attorney Boldt read Note 5 for the record. It reads, “The Town of Nottingham Tax Map 59 Lot 37 includes Parcel A & Parcel B. Parcel A & Parcel B land is under dispute with the Town of Nottingham and Jonathan and Paige Witham. Parcel A is not part of the State DES Subdivision Approval process and deemed to be an existing lot of record. Parcel A is not included in the proposed lots shown.” Ms. Bonser confirmed with Attorney Teague that at the end of the dispute process for Parcels A & B, regardless of who owns the property, there would be documentation stating that neither of these are buildable lots. Attorney Teague noted that at the end of the dispute another document
will be recorded for future reference. He also added that the Notice of Decision will also have this noted. Attorney Boldt stated for the record that if Parcels A & B are deemed to belong to the Withams, they will not be considered separate buildable lots from the parent lot. Attorney Teague clarified that if the Withams are deemed to be the owners of Parcel A, the pre-existing, non-conforming lot status would not continue because the lot will be merged.
Attorney Donovan speaking on behalf of the Concerned Citizens for the Preservation of Nottingham Square, submitted a six (6) page letter (see file) to the Planning Board. He stated he felt it was not only within the Planning Boards power to take historic resources into consideration but their responsibility based on the Nottingham Building Code and Zoning Ordinance and the Subdivision Regulations. He noted specifically, Zoning Ordinance Article II - Site Suitability for Proposed Use, Section A. 6. lists ‘historic and unique resources’, and Article III – Impact Control, Section B. refers the reader to Appendix A, which lists ‘historic district or other monument of historic importance’ as number eight. In the Subdivision Rules and Regulations, he indicated Section 1 Part C. 2. as also
being pertinent. Attorney Donovan referenced the nine (9) conditions listed in his letter and requested that they be placed on any approval given for this subdivision. Mr. Curry felt the issue was not clear since Nottingham does not have an official historic district. Mr. Smith noted that there have been three other homes built in that area that did not have conditions imposed upon them. In reference to the third condition, Ms. Bonser commented that the Square does not currently reflect one period of history but a progression in time, new homes in this period would add to that. Attorney Teague noted that Nottingham does not have standards for historic areas. Attorney Donovan, referencing ZBA minutes, stated he felt the Planning Board had the right to ask the developer to submit building plans for the Planning Board’s review. Attorney Donovan, at Attorney Teague’s inquiry, clarified that the Concerned Citizens felt that
eliminating the two easterly most lots would prevent over-crowding and leave open space in this historic area. Attorney Donovan noted for the record that the Concerned Citizens were not asking the Planning Board for a denial of the application, they were looking to work with the applicant. Ms. Bonser stated that the requests in Attorney Donovan’s letter would result in more expense and less lots for the applicant. Attorney Donovan stated it would not be a significant increase of cost.
In reference to Attorney Donovan’s letter, Mr. Curry noted that the Planning Board had been struggling Zoning Ordinance verses Subdivision with the 4K area, but had recently had clarification from Council. Ms. Bonser stated that this issue had been addressed with this application prior to clarification.
Mr. Curry questioned the Planning Board’s authority to impose such things as drainage control studies on small subdivisions. Attorney Donovan felt it would be the same authority that allows it for large subdivisions. Mr. Gylfphe, referring to the May 2, 2007 minutes, voiced concern that the impervious areas created by the development will affect Fernald Brook 2 and increase the phosphorous loading problem into Pawtuckaway Lake. Attorney Donovan stated it would not be unreasonable under the circumstances to go back to the applicant to request a drainage control study.
Mr. Curry, noting the lateness of the hour, stated he is not comfortable approving an application when a series of concerns have been raised that the Board has not had time to research. He asked the applicant if they would be willing to recess the hearing to allow the other cases to be heard. Attorney Boldt stated that each of the concerns raised by Attorney Donovan have already been addressed and the applicant was not willing to voluntarily recess. He added that the language of Section II, Site Suitability, of the Zoning Ordinances deals with Town maps, not to impose new restrictions on an applicant who has been compliant. He stated that if the board imposes things not written in the Regulations they invite a law suit and a look back at other subdivisions in the area that were not restricted. Ms. Bonser asked
if the applicant would agree to a note placed on the plat that warns prospective buyers that there is a working farm across the street. Attorney Boldt replied that the farm is already protected by statute (RSA 432:33). He stated that he is astounded that the Concerned Citizens, who have been present at the previous meetings and raised these concerns, would come through at this late date to re-raise these issues and seek to take the property rights of the Withams. He added that if a drainage study is required of the applicant then the Town better be prepared to include the Fernald Farm and the field where they put the manure for fertilizer. Attorney Donovan stated that although the application has been before the Board for many months, there were several requests for continuances and hearings were not held. He stated it is the Planning Board’s responsibility to balance the rights of land owners and to reasonably hear public testimony. Mr.
Davidson stated he feels Attorney Donovan’s letter should have been received by the Planning Board prior to tonight’s meeting.
Chair Smith opened the meeting to the public.
Mr. Dave Fernald stated that the abutters have been frustrated throughout the whole planning process. He stated that the Concerned Citizen’s did not feel that they were doing well enough representing themselves so turned to Attorney Donovan just last week. He acknowledged that they should have hired an attorney sooner. Attorney Teague stated he felt it was much too early to start talking about takings, noting there is a difference between someone coming in at the eleventh hour with vague allegations and someone coming in with specific concerns such as a drainage study. He stated there is some obligation to have expert opinion, however, it cannot be applied to just one property. Nottingham needs to have standards and look at their Regulations. He noted that it is not a property right to push the
Planning Board to rush to judgment and make a decision before they are ready. He advised the Planning Board to consider those things that have been demonstrated as real issues and move on the issues that have they feel they have already considered appropriately. Mr. Curry stated there are some issues he does not feel were adequately addressed, specifically noting the shape of proposed Lot 37-2 and the drainage study.
Attorney Boldt, referring to his prior comment about horse-trading, stated that Mr. Witham was amenable to considering those kinds of things (such as house design) depending on how things turned out. He did not simply agree to them, period. He noted that the only condition of the ZBA was that the lot could not be further subdivided. Ms. Bonser asked for a copy of the ZBA minutes. He also responded to the drainage concern, stating that Selectmen Bock had attended a site walk and stated on record that this subdivision would have no impact of additional water flowage off this property. Mr. Gylfphe asked Attorney Boldt for a guarantee that there would be no additional water flow off the property. Attorney Boldt stated he could not do that.
Mr. Welch stated he wanted to speak about the historical nature of the Square. Chair Smith stated he felt the board was clear on that issue.
Mr. Harding stated that he felt the board needed to take a good look at this application again, noting that once the Square is gone, there is no going back. He feels there needs to be a compromise. Mr. Curry stated that the Planning Board had met with their attorney on May 23rd and had received legal advice that would have impacted the way he viewed this application from the beginning. He felt there were issues raised tonight that need to be considered. Attorney Boldt informed the board that his client was amenable to place restrictions regarding architectural similarity to the adjacent buildings on proposed Lot 37-2, if they received approval tonight. Mr. Curry stated that he appreciated the offer. Mr. Harding stated he did not feel the Board had had enough time. Chair Smith stated he
felt the applicant came here tonight expecting this to be the last night and he wanted to hear the Withams’ response to Attorney Donovan’s letter. Attorney Boldt informed Chair Smith that the response is that these issues have already been addressed adding that the stone wall will stay as it is a boundary line; the applicant is not eliminating a lot; the applicant is not putting a conservation farmland easement in place; there is no basis for the underground utilities request; there is no basis for the requirement of unpaved driveways; the applicant will comply with the lighting ordinance; whether the houses will be built at least 100’ off the road will be site specific to the person buying the lot. Ms. Bonser stated that the only thing outstanding is the drainage issue and she felt the applicant should be informed tonight as to whether one would be required. Attorney Boldt asked the board for the basis for that request. Attorney Donovan
stated it is not the Concerned Citizen’s responsibility to solve drainage issues on this site. He noted that if the board was uncertain as to whether the build out of this land will create drainage onto the Splaine lot, it was the Planning Boards responsibility to require the applicant to prove that it won’t. Chair Smith, noting that he is not an engineer, stated it did not appear to him that the proposal was going to create additional drainage onto the Splaine lot. Mr. Curry noted for the record that individuals commenting on the drainage issue were not qualified to make a determination.
Mr. Gylfphe cited Section I of the Subdivision Regulations, stating this section gives the Planning Board the authority to require such things as drainage studies from applicants. Attorney Boldt replied that what Mr. Gylfphe was citing referred to scattered or premature subdivisions and that any case dealing with that phrase, also dealt with Class VI road issues. Attorney Teague disagreed stating that drainage and effects of water are forefront in everyone’s mind because there is demonstrable evidence that it can cause enormous damage and has to be considered. He feels this is something that will increasingly be taken into consideration in all developments more and more. Attorney Boldt stated he would agree when it is in the regulations. Attorney Teague stated the Planning Board has the obligation to take
into account anything that affects the health, safety, and welfare of the community.
Mr. Ladd stated that when you develop land you get additional run off, it’s a given. He stated the Planning Board would be better off putting a condition on the plat that a drainage study will be done upon issuance of the building permit. He noted for the record that he did not see anything on the plat that would prevent the control of water on each individual lot. Attorney Boldt stated they had no problem with that requirement. Mr. Welch stated that that would only provide information on the effects of each individual lot, not the site as a whole. Attorney Boldt stated for the record that each lot, by law, cannot have drainage onto another lot. Each study will identify if there will be an issue along the way. Attorney Donovan suggested a base-line study. Attorney Boldt stated a base-line
drainage study would have nothing to do with the subdivision and asked where in the Regulations that was required.
Break: 9:30 – 9:40
Chair Smith called the meeting back to order and read the recommendation from the Nottingham Fire Department for the record. Recommendation: Sprinklers for all homes built or a 15,000 gallon cistern within 2000’ of all homes. Driveways for proposed Lots 37-1. 37-3, and 37-5 be a minimum of 16’ in width with an 18’ x 50’ turnaround within 50’ of the structure. Attorney Boldt stated the sprinklers are on the plan and any driveway over 250’ will follow the recommendation regarding width and turnaround. Chair Smith requested that be put on the plat.
Ms. Smith stated the Conservation Commission was very concerned with erosion and how to protect the wetland area in the back. She indicated that the Commission did not want the Erosion & Sediment Control Plan requirement waived. Chair Smith stated the plan was in the file.
Mr. Gylfphe stated he felt the easement for the cemetery should be open to the public. Attorney Boldt stated it is not currently open to the public as it is a liability for his client.
Chair Smith stated he would like to see the septic systems in back of the homes. Attorney Boldt stated it will be noted that they will be behind unless prohibited by soil.
Mr. Curry recapped covered issues, which included the applicant stipulating to restrictive covenants regarding the architectural design for proposed Lot 37-2. Attorney Boldt stated that the covenant offer was only valid if they were approved tonight. Mr. Davidson informed Attorney Boldt that he did not appreciate being pushed to make a decision.
Mr. Dave Fernald addressed the Board stating the importance of the Square to himself and to Nottingham. He acknowledged the Withams’ rights and the difficulty of the Board’s task. He asked for balance. Mr. Curry acknowledged the change of Nottingham through development and stated that he is frustrated that there are not many regulations to preserve the things the town wants preserved. He added that he also believed the Board had made a mistake in not addressing the substandard shape of proposed Lot 37-2, noting that he felt it was unfair to the property owner to make it an issue at this point. Mr. Splaine stated the Board represents all land owners. Chair Smith stated the applicant can present whatever they want to the Board, if it meets the regulations then it goes through the process and
comes to a vote. Mr. Curry stated he is trying to be fair to both sides and asked Attorney Teague if it was unreasonable to alter the plan significantly at this point in time. Attorney Teague responded that if there is criteria that meets the subdivision regulations, the Board may request it at anytime, noting that although much work has gone into this subdivision it is not approved.
After measuring the angles on proposed Lot 37-2 and taking into account the irregular shape, its proximity to Nottingham Square and the Butler homestead, and its historical impact, Mr. Curry moved to have proposed Lot 37-2 remain part of the parent lot, Lot 37. Chair Smith seconded the motion.
Attorney Boldt stated that the lot could be reconfigured. Ms. Bonser inquired as to whether the ZBA condition of no further subdivision on the parent lot would still be applicable if absorbed proposed Lot 37-2. Attorney Boldt stated that that was not the intent.
Attorney Donovan stated if the Board was trying to achieve balance, he felt Mr. Curry’s motion addressed his clients’ most important issue.
Attorneys Boldt and Teague left the room.
Mr. Curry repeated his motion to have proposed Lot 37-2 remain part of the parent lot based on its angles, irregular shape, proximity to Nottingham Square and the Butler homestead, and historical impact.
The attorneys returned and Attorney Boldt apologized, stating he did not have authority to share their discussion since he had not even spoken with his clients. He indicated that the conversation involved the lot line dispute which is not before this board.
Chair Smith called the vote on Mr. Curry’s motion. Mr. Gylfphe, Mr. Curry, Chair Smith, Mr. Harding, and Mr. Davidson voted in favor of the motion. Ms. Bonser voted opposed. Motion passed 5-1.
At the audiences comments regarding the attorneys conversation, Ms. Bonser stated that it would be aired publicly at the Board of Selectmen’s meeting.
Attorney Boldt confirmed with the Board that his client’s had the right to review the changes and appear with another plan that may still be five (5) lots. Attorney Donovan confirmed with the Board that his clients will still have the opportunity to be heard.
Attorney Boldt stated that the applicant was willing to extend the 65-day deadline until the next meeting where they would be first on the agenda.
Mr. Gylfphe made a motion to recess the public hearing of Jonathan and Mary Paige Witham, Ledge Farm Road, Map 59 Lot 37, Case #P07-03-SUB to June 20 at 7:15 PM. Mr. Harding seconded the motion. All in favor. Motion passed 6-0.
Attorney Donovan asked for copies of any written communication between Attorneys Boldt and Teague. The attorneys agreed to copy each other on all documentation moving forward.
The applicants left the meeting.
Items outstanding for next meeting:
· Notes on plat for:
- drainage study required at the time of construction
- driveway recommendation from the NFD
- septics in back of homes unless prohibited by soil
· Attorney Teague to review easements.
· Note #5 on plat to be reworded.
· Lighting
PUBLIC MEETING CONTINUANCE – RSL LAYOUT & DESIGN FOR BLUE FIN DEVELOPMENT - KENNARD ROAD - MAP 11 LOT 7 – CASE #P06-07-SUB:
Chair Smith opened the public meeting at 10:55 PM.
Mr. Ladd handed out new plats.
Chair Smith perused the documentation provided by the Building Inspector regarding the DES approval and noted the driveway permit.
Due to the length of time this case has been pending acceptance, there was confusion regarding the list of outstanding issues. Ms. Chauvey left to retrieve the past minutes.
Mr. Curry asked Mr. Ladd if he could move the 4k area on proposed Lot 7-4 out of the 50’ setback. Mr. Ladd stated he would.
Mr. Ladd requested to be rescheduled on June 20, giving the Board time to review the new plan.
Mr. Curry made a motion to recess the public meeting of a 2-lot subdivision application from RSL Layout & Design for Blue Fin Development, Kennard Road, Map 11 Lot 7, Cast #P06-09-SUB to June 20, 2007 at 7:15 PM. Mr. Davidson seconded the motion. All in favor. Motion passed 6-0.
PUBLIC MEETING – BERNARD ADAMS – 228 STAGE ROAD - MAP 29 LOT 5 – CASE #P07-07-SUB:
Chair Smith opened the public meeting at 11:15 PM.
Mr. Blaisdell presented plats to the Board and stated that Mr. Adams owns approximately 6 acres on Route 152 that he wants to subdivide in half. He informed the Board that there is an existing house on the property and they have obtained State Subdivision Approval. He noted that the land is relatively flat and the North River runs through it.
Regarding Strafford Regional Planning Commissions Completeness Review:
Chair Smith asked Mr. Blaisdell if he had moved the 4K area. Mr. Blaisdell responded that he had not. He stated he started this project over a year ago and was not aware of the Planning Board’s new determination regarding septics. He stated that it would be costly at this point to do new test pits and move the septic. He stated he will request a waiver.
Chair Smith requested a waiver request for the driveway permit. All three driveways have been in existence ‘forever’.
Chair Smith requested a waiver request for the scale. Because of the shape, the lot fits better at a 1” = 60’ scale.
Wooded areas have been depicted on the plat.
Chair Smith and Ms. Beauchamp discussed the difficulty of obtaining an aquifer map, which is a requirement of the subdivision regulations. Mr. Blaisdell stated he would like to submit a waiver. Ms. Smith suggested Mr. Blaisdell come before the Conservation Commission. Ms. Beauchamp stated that Mr. Blaisdell would need to meet with the Conservation Commission because the property is located in an aquifer, borders a flood plain, and has a major river running through it.
The old dam has been placed on the plat.
Mr. Blaisdell stated that he does flood certifications all the time. After taking his measurements, he differed from FEMA’s representation and the plat bears his findings. He stated he would provide a flood certification. Chair Smith asked him to include the line from the flood map on the plat. Mr. Blaisdell agreed to do so.
Mr. Blaisdell reported that he is the wetland scientist.
The hydric soil setbacks are clearly shown on the plat.
The applicant will contact the Conservation Commission.
The 255 contour line is clearly identified on the plan.
Mr. Blaisdell reported that the closest fire cistern is within 2000’.
Mr. Blaisdell reported that the “abandoned” well is not truly an abandoned well and he will remove that word from the plat.
Mr. Curry made a motion to recess the public meeting on a 2-lot subdivision from Bernard Adams, 228 Stage Road, Map 29 Lot 5, Case #P07-07-SUB to June 20, 2007 at 7:15 PM. Mr. Harding seconded the motion. All in favor. Motion passed 5-0.
Mr. Curry made a motion to hold a site walk at 228 Stage Road, Tax Map 29 Lot 5, on June 13, 2007 at 6:00 PM. Mr. Davidson seconded the motion. All in favor. Motion passed 6-0.
DISCUSSION – DOROTHY BEAM:
Chair Smith opened the discussion at 11:50 PM.
Ms. Beam appeared before the board to request release of a bond that has been held in the name of Exelonics since April 2000. This bond was held to ensure landscaping on a slope at 100 Old Turnpike Road. She handed out pictures of the lot and slope for members to view.
Mr. Gylfphe made a motion to release Ms. Beams bond in the amount of $5,000. Mr. Harding seconded the motion. All in favor. Motion passed 5-0.
Chair Smith asked Ms. Chauvey to follow up with the Selectmen’s Office on the release of Ms. Beam’s bond.
OTHER BUSINESS:
Mr. Curry read for the record a letter received from Ms. Gail Mills, in which she expressed concern at the Planning Board’s lack of enforcement of the Nottingham Rules and Regulations regarding setbacks. Based on her legal research she requested four things of the Planning Board. She requested that immediate action be taken by the Planning Board to ensure all applications being accepted meet the 50’ setback. She asked that another member of the Board be recused from all discussions and votes on the 50’ setback, as well as making decisions on applications that do not fulfill the requirement, citing RSA 673:14 I. Citing RSA 676:13 1, she requested that the Planning Board contact the Board of Selectmen to instruct the Building Inspector to enforce the 50’ setback. She requested that all
non-public Planning Board sessions should begin to follow the requirements outlined in RSA 91-A:3.
Ms. Chauvey informed the Board that when she received Ms. Mills letter she became concerned at not having taken minutes at the meeting with Council held the previous week. She stated that she had addressed the issue with Mr. Brown, Town Administrator, who informed her that he had spoken with Attorney Teague and was told that minutes do not need to be taken during a session with Council. Mr. Curry responded that 91-A:3 is explicit in that a meeting with the attorney is not a meeting.
Mr. Davidson made a motion to go into non-public session per 91-A:3.I.(c) to discuss Ms. Mills’ letter.
Chair Smith stated he felt the Board needed to get more information before they could continue the discussion and therefore there was no need for the Board to go into non-public session tonight. He stated the board should set a workshop for next Wednesday and dedicate it to resolving how applications will be handled moving forward.
Ms. Chauvey asked the Planning Board to work on getting their processes and procedures down on paper to ensure consistent treatment of applicants.
Mr. Gylfphe made a motion to adjourn the meeting. Mr. Harding seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned at 12:45 AM.
Respectfully submitted,
Traci Chauvey
Planning Board Secretary
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