NOTTINGHAM PLANNING BOARD MINUTES
JUNE 13, 2007
WORKSHOP
Approved 07/15/07
PRESENT: ABSENT:
Mr. Dave Smith, Chair
Mr. Peter Gylfphe, Vice-Chair
Ms. Gail Mills, Secretary
Mr. Peter Bock
Mr. Mark Harding
Mr. Bob Davidson
Mr. Scott Curry, Alternate
OTHERS PRESENT:
Mr. Terry Bonser
Mr. Skip Seaverns
Ms. Michelle Beauchamp, Strafford County Regional Planning Commission
Ms. Traci Chauvey, Planning Board Secretary
Chair Smith called the meeting to order at 7:25 PM.
BUILDABLE AREA:
Chair Smith feels the board needs to have an interpretation.
Mr. Gylfphe reminded the members of the board that what is on the plat is only a Planning Board requirement. He stated that what is on the plat may not be what is actually built, noting that the Building Inspector looks to the Building Code and Zoning Ordinances for his guidelines. Chair Smith stated that the Building Inspector should be reviewing the plat for notes of conditions or restrictions from the Planning Board. Mr. Curry feels that the Planning Board has the power to change both zoning and subdivision regulations, however, in his 4 year tenure on the board, he feels they have not changed regulations that are too onerous. He feels they decide, inconsistently, to obey or disobey the law however they see fit, stating he has a problem with that. Furthermore, he believes that Building Inspectors, in general,
choose to enforce or ignore the laws as they see fit and he also has a problem with this. He stated that he believes that everyone should be following and enforcing the laws that are in place and if someone does not like them, which he does not in some cases, they should attempt to change them. He feels the voters have voted the members there to do planning, which the board rarely does, and to create and enforce the laws that they vote upon. He feels that consistency is important and how they apply buildable area has been consistent in some ways, even though they have been enforcing this issue consistently in some ways, it may be wrong and they should fix it. Mr. Davidson agreed, noting that surveyors and engineers approach the board with the attitude that their applications have been approved in the past when submitted with the same conditions. Ms. Mills stated she did not feel the board has a choice whether they want to do it or not, they are bound
to follow the laws. Mr. Gylfphe stated that as more of Nottingham gets developed, land gets less and less usable and the developers are trying to utilize as much land as they can. Ms. Mills stated that when applicants come before the Board, they will try to bring anything, whether it complies with the rules and regulations or not, because the Board has not been consistent and the applicants think they may be able to get something approved that shouldn’t be. Mr. Gylfphe stated that Nottingham does not have a requirement on septic systems. Mr. Curry stated it was in the regulations. Mr. Gylfphe felt that the State’s definition of structure is where the problem lies. Chair Smith stated he has asked the Building Inspector to provide the Board with the State’s definition of a structure and that definition did not provide the Board with any guidance. Mr. Seaverns stated that the Board does not need to match the State’s
definition. He noted that previously it was not allowed, then after a discussion
Mr. Curry stated that the Planning Board has the power to change both the Zoning Ordinances and Subdivision Rules and nothing has changed in at least 4 years. He stated he has a problem with the Board choosing to obey or disobey the law as they see fit. Furthermore, Building Inspectors in general also choose to enforce or ignore the rules and regulations as they see fit. Mr. Curry made the point that The Highlands, Dunbarton Estates, and Brooks Crossing, which total over 200 homes were all approved without one encroachment to the setbacks, however, recently he has seen several 2-, 3-, and 4-lot subdivisions approved that do encroach the setbacks. He stated that he is frustrated that there has been no change in four years and feels that land owners are being penalized (or not) depending on how they approach it.
Mr. Seaverns stated that he disagrees and does not believe anyone has been penalized or that they have used the rules in a wishy-washy manner. He noted that the large subdivisions Mr. Curry mentioned all came in complying with the rules and regulations, and for whatever reason, the applicant chose to do that, however, the smaller ones, for whatever reason, the applicant is choosing to make things in a manner that causes the Planning Board to think about what the regulations should be. Mr. Curry gave examples of inconsistency. Mr. Seaverns stated that the Planning Board has the power to waive all of those things mentioned by Mr. Curry and that’s what they chose to do.
Chair Smith stated the purpose of being here tonight was to decide what they were going to enforce consistently on subdivisions. He noted that his main concern is the 4K area, since it keeps coming up.
Mr. Bonser stated that even in the large subdivisions mentioned earlier, the actual subdivisions were not built to match the approved plat. He stated that the zoning ordinance allows septics to be 10’ from the lot line if you go by State law, as most towns do. He feels the Planning Board would not be seeing this problem if they brought the subdivision regulations into line with the zoning ordinances, not by bringing the zoning ordinance in line with the subdivision regulations. Chair Smith stated that he believes the Building Inspector has been handling septics is according to State regulation. Mr. Bonser stated that is what the ordinance says. Mr. Seaverns stated that is not what it says if it is read correctly. Mr. Seaverns noted that if 10’ from the property line was truly the setback for
septics in Nottingham then the area suitable for building needs to reflect the 10’ setback which makes it even bigger than what it is, and the 50’ set back for buildings also needs to included in that area on the plat.
Ms. Mills stated that she has contacted the State and been told that septic systems, no matter how well built, do leak and they do leak laterally. She stated that she has confirmed that if a property owner places his septic 10’ from the property line, the abutting property owner is limited to where they can place their well. She noted this is paramount to taking an easement on someone else’s property. Mr. Bonser stated there is not much seepage and a waiver can be signed by the abutting property owner. Ms. Mills stated the issue is not whether the septics leak but whether Town Representative are following the laws that have been put into place by the voters. Ms. Mills stated that she feels waivers should only be approved if there is a darn good reason. Chair Smith stated that this also becomes
a Building Inspector issue because the Building Inspector is allowing septics to be built 10’ from the property line. Ms. Mills agreed. Mr. Seaverns stated that the Board cannot be concerned with what the Building Inspector does, noting it is not their job to supervise that position. Ms. Mills stated she understands it is not their jobs, however, representatives in town are supposed to be working together to make the laws viable and enforceable so everyone feels they are being treated equal, which she does not believe the people feel. She feels it is incumbent upon all representatives to get together and work out the issues instead of saying “that’s not my job.” Mr. Seaverns agreed. Mr. Davidson stated the only thing the Board can do is raise the issue to the Selectmen, they cannot enforce it. Ms. Mills replied that all she was suggesting was a letter to the Selectmen. Mr. Davidson stated he feels the Board is
overburdened with other things. Ms. Mills and Mr. Seaverns noted that a Selectman was sitting at the table, as a Selectmen’s Representative. Mr. Bock suggested to the Board that the Selectmen would expedite any issue put in writing to them. Chair Smith felt the Board should send a letter to the Selectmen, the Selectmen should review the zoning ordinances and they should make a decision on how to instruct the Building Inspector to do his job, noting that he is going by a different set of rules than what the Planning Board does. Ms. Mills, not a member of the Planning Board but as a town resident, asked what those rules are. She stated she feels that it needs to look like town representatives are all working together to make this a better place. Ms. Mills stated she feels it is the Planning Boards responsibility to raise concerns to the proper officials.
Mr. Curry, addressing Mr. Bonser, asked how the 50’ set back for septics would effect the need for bigger lots. Mr. Bonser stated he believed lot would need to be bigger. Chair Smith stated that the majority of the lots coming before the Planning Board have room for the septics to be moved out of the 50’ set back, but for whatever reason, septics are purposely being placed in the 50’ set back area. Ms. Beauchamp agreed.
Mr. Curry read the definition of buildable area from the zoning ordinance and asked how that could be construed by someone that septics do not have to meet all existing setbacks. Chair Smith noted that some people believe a septic system is not a structure. Mr. Curry pointed out that the definition specifically states, “…in which a building and septic system can be placed that will meet…” Chair Smith stated that if a septic system is not considered a structure then there are no existing setbacks in the ordinances for it. Ms. Beauchamp read for the record the State’s definition from the 2000 International Building Codes of a structure, which reads, “That which is built or erected.” Ms. Chauvey stated she feels that the septic needs to be identified separately from
structures, noting that if the Planning Board decided to consider a septic as a structure, she believes they will start seeing issues with driveways, fences, etc..
Mr. Harding, addressing Ms. Beauchamp, asked what she would suggest based on what she has experienced in other communities. Ms. Beauchamp stated she cannot make a recommendation. Chair Smith asked what other communities are doing. Ms. Beauchamp stated that the abutting communities follow the 10’ set back set by the State, except when there are wetlands, however there are other communities who have zones that require different set backs. Mr. Curry read the definition of ‘structure’ from Newmarket.
Chair Smith asked if anyone wanted to make a motion on the definition of structure. Ms. Beauchamp informed the board that they could talk about it all they want but they cannot change it until 30 days before the Town vote. Chair Smith stated that the Board needed to determine how to hand septic system/4K areas tonight so that they do not have the same issue moving forward with the new subdivisions coming in front of the Board. Chair Smith felt if a motion was made and voted on regarding septic system/4K areas, it would be an indication of how the Board felt. Ms. Beauchamp stated she did not believe the Board should be adopting anything without a public hearing. Mr. Curry agreed. Ms. Beauchamp stated she would rather have the Board tell her where they want to go with this so that she could go through all
the regulations and pull everything that would need to be changed at the same time. She stated she felt that doing it piece by piece is how the regulations became inconsistent in the first place.
There was confusion among some of the board members as to where Ms. Mills was trying to go with this issue. Ms. Mills clarified that she understood that it was possible that the septic system would not be placed where the 4K area on the plat was placed. She stated she did not care where it was moved to as long as it was not in the 50’ setback area. Placing it within the 50’ setback area goes against the Nottingham Subdivision Rules and Regulations.
Chair Smith polled the Board on whether or not they felt a septic system was a structure. Mr. Gylfphe and Ms. Mills voted for a septic to be considered a structure. Mr. Curry, Chair Smith, Mr. Bock, Mr. Harding, and Mr. Davidson voted for a septic not to be considered a structure.
Chair Smith then read Section IV F in the Subdivision Rules and Regulations. Chair Smith, Ms. Mills, and Mr. Curry felt this section was clear in what it says; septics shall not be permitted within any setback area. Chair Smith indicated he did not see a problem with what has been coming in (i.e., 4K areas placed within the setbacks) other than it goes against the Subdivision Rules and Regulations. Mr. Curry stated he felt that going against the Rules and Regulations was the problem. Chair Smith suggested removing the words ‘wells and septic facilities’ from Section IV F. Ms. Beauchamp informed the Board that her research of this regulation indicated that the Planning Board that was in place at the time was attempting to obtain suitable lots. They wanted everything to be contained within a
decent area. She stated they did not want dog-legs or other oddly designed lots. Chair Smith stated he felt this could drive larger lots, which could create some sort of hardships on subdivisions. Ms. Beauchamp responded that she felt the Board should be proposing rules and regulations based on the town’s Master Plan, not the developers that come before the Board.
Mr. Seaverns stated that the power before the Board, this evening, was to decide what the Nottingham Subdivision Rules and Regulations says to them as a Board and to handle all future subdivisions accordingly until such time that they could hold public hearings to propose changes.
Mr. Curry stated that Section IV F clearly states that septic facilities cannot be placed within any setback area. He would like to remove that from the subdivision regulations, however, that is for another time. Chair Smith stated he feels that since the board voted not to consider a septic facility a structure, it did not need to meet the setback requirements according to the zoning ordinances. Ms. Beauchamp stated that the Planning Board could not change Nottingham Building Code and Zoning Ordinances and the definition of the word structure does not exclude septic facilities as it does boundary walls or fences. Mr. Seaverns noted that it does not exclude driveways, either, noting that as it is written, it is not all encompassing. Mr. Bonser asked why the Board would not propose the change at this time.
Ms. Beauchamp and Chair Smith stated that could not be done until December or January.
Ms. Mills suggested a Saturday workshop. Members of the board were not agreeable to that. Mr. Curry suggested a sub-committee to research and propose changes. Mr. Seaverns volunteered himself and Ms. Beauchamp. Ms. Chauvey asked Ms. Beauchamp for clarification on her role as the town’s Contracted Planner, stating that she has heard Ms. Beauchamp state that she cannot make recommendations and/or tell the Board what they should do. Ms. Chauvey added that she felt a Planner should be offering recommendations based on professional experience. Mr. Davidson agreed that he did not understand Ms. Beauchamp’s role and would like to receive advice. Ms. Beauchamp stated that if the Board provides her with a direction they wish to go, she can advise them, however, when the Board is split, it is not
her duty to push them in one direction or the other. For example, if the Board told her they wanted to have a historic district, she would research it, bring the Board examples of what other towns have done, and make a recommendation on which she believes would be best for Nottingham. Mr. Bock stated that he feels this is a question of direction and guidance; an issue not particular to this board, not limited to this time. He stated this is a difficult and complex situation. He feels that Ms. Beauchamp has outlined the information but she needs the members of the board to step up to the plate and make a decision. Ms. Beauchamp reminded Ms. Chauvey and members of the board that she had made recommendations to fix the regulations back in March, noting that still nothing has been accomplished. Mr. Curry stated he did not feel it was Ms. Beauchamp’s job to tell them what to do as they are elected to learn on the job, which is why people spend
years on the board, and to make informed judgments on what the Board thinks the community members want. Ms. Chauvey stated that she was not at all insinuating that Ms. Beauchamp should tell anyone how to vote. Mr. Davidson stated that as lay-person when it comes to planning, he was looking at it more as an advisory position. Ms. Mills stated she believes they have received that. Ms. Chauvey replied that she feels that the Board is always provided with the options available to them, but on many occasions she has not heard a professional recommendation for the Town of Nottingham and supporting facts for that recommendation. Chair Smith stated that the Planner could be coming from a big city and that is not what Nottingham wants. Ms. Chauvey replied that it is the Planning Board’s responsibility to hire someone they feel would do the best job for Nottingham.
Ms. Chauvey apologized to the Board, stating she did not mean to start a discussion in another area. She stated she is frustrated and excused herself from the meeting.
Mr. Gylfphe made a motion to adjourn the meeting. Ms. Mills seconded the motion. Discussions were continuing so Chair Smith tabled the motion.
At Mr. Harding’s inquiry, Ms. Beauchamp stated she had been working in planning for seven years. Mr. Harding stated he would appreciate more of a push to get things accomplished. Ms. Beauchamp stated she felt she had pushed them to review the buildable area issue prior to the March vote and it was brushed off. Ms. Mills indicated it would help her to have the issues together in front of her instead of having to flip back and forth between zoning and subdivision. Ms. Beauchamp informed Ms. Mills that she had provided that to the Board in a two page document back in November. She noted that she had also provided them with a list of what other towns were doing, at that time.
Ms. Beauchamp stated she felt the Board needed to make a decision as to whether they intend to follow the subdivision regulations tomorrow or not; that is what this workshop should be about. Members of the board agreed. Chair Smith stated he did not feel there is a decision to be made; it is written the way it’s written and that’s all there is to it. Ms. Mills asked if they intended to follow the rules and regulations as written. Mr. Curry felt the question is what do they mean. Mr. Seaverns stated that the written word is what they are having trouble with therefore, the Board could not get beyond this until they got rid of the written words as they presently exist. Ms. Mills replied that they needed to come to some kind of decision. She stated that if subdivision overrules zoning when
more restrictive then it is clear to her that the septic system/4K area needs to meet the 50’ setback.
Chair Smith polled the Board on whether they agreed that the septic system/4K area should meet the 50’ setback. By a show of hands, the Planning Board unanimously agreed.
Ms. Beauchamp asked the board if they planned to follow that until they could propose changes in December. Mr. Seaverns suggested the Board put together a document clearly stating their decision that could be posted and read at the next meeting. Ms. Mills asked Ms. Beauchamp if she would draft the letter. Ms. Beauchamp asked for guidance on what the Board wants the document to say. Chair Smith stated it should inform the public that at a workshop meeting held on June 13, the Planning Board unanimously voted to enforce Section IV F of the Nottingham Subdivision Rules and Regulations as written.
Ms. Mills noted that the Board had made a great accomplishment.
Chair Smith opened a discussion on the two attorneys leaving the room to discuss something during the last public meeting. Ms. Mills stated she had researched this issue because she had received four phone calls about it and she had been informed that it was legal. Chair Smith acknowledged it was legal, noting that there was another attorney present and that the action was directed by someone on the board.
At this time, Mr. Curry made a motion to invoke a non-public session in accordance with RSA 91-A:3 II(c), which states, “Matters which, if discussed in public, would likely affect adversely the reputation of any person…”, which he felt applied in this case. Mr. Davidson seconded the motion. Mr. Bock stated that he was not present for the meeting but would like to stay for the non-public session, if no one was opposed. Motion passed 7-0.
At 10:25 PM, the Planning Board came out of non-public.
In regards to minute taking, Mr. Curry raised the issue of non-public verses a session with Council. Chair Smith stated he had spoken with Attorney Teague for clarification on this issue. He had been informed that the Planning Board was allowed to meet with Council on general advice with having minutes taken but that the public was also allowed to attend. He further stated that he asked Attorney Teague to put something in writing for the Board to have on record. Mr. Curry stated that he would like to follow up on that with either the Local Government Center or the Office of Energy and Planning because his understanding is that it is not a public meeting, rather it falls under the lines of attorney-client privilege. Chair Smith acknowledged that Mr. Curry may be correct in his understanding but the he understood
that the Board could invite whoever they chose. Ms. Mills stated that the Local Government Center had advised her that a contracted party, such as Ms. Beauchamp could be invited, but once the public gets invited it looses its status as attorney-client privilege.
Mr. Curry made a motion to adjourn the workshop. Ms. Mills seconded. All in favor. Motion passed 7-0.
Meeting adjourned at approximately 11:00 PM.
Respectfully submitted,
Traci Chauvey
Planning Board Clerk
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