NOTTINGHAM PLANNING BOARD MINUTES
SEPTEMBER 5, 2007
PUBLIC MEETING/HEARING
Approved 10/10/07
PRESENT: ABSENT:
Mr. Dave Smith, Chair
Mr. Peter Gylfphe, Vice Chair (left at 8:35 PM)
Ms. Gail Mills, Secretary
Mr. Mark Harding
Ms. Mary Bonser, Selectmen’s Rep. alternate
Mr. Bob Davidson
Mr. Scott Curry, Alternate
OTHERS PRESENT:
Ms. Lucille Howard, Applicant
Mr. Richard Ladd, RSL Layout & Design
Mr. Reed Murphy, Abutter
Mr. Tom Sweeney, Abutter
Ms. Cheryl Smith, Nottingham Conservation Commission
Mr. Leonard Giles, Applicant
Ms. Pearl Cook, Applicant
Ms. Michelle Beauchamp, Strafford Regional Planning Commission
Ms. Traci Chauvey, Secretary to the Planning Board
Chair Smith called the meeting to order at 7:06 PM. He asked Mr. Curry to sit in the vacancy left by Ms. Jones.
MINUTES
Minutes of August 15, 2007:
Ms. Bonser noted a typo on Page 2, fourth line down under the heading Cistern Discussion, the sentence reads, “…cistern is was part of….”
Mr. Curry made a motion to approve the minutes of the August 15, 2007 meeting with the above correction. Mr. Gylfphe seconded the motion. Mr. Harding, Ms. Mills, and Ms. Bonser abstained. All others voted in favor. Motion passed 4-0, with 3 abstentions.
PUBLIC MEETING – SUBDIVISION APPLICATION (acceptance, compliance, and final approval of a 6-lot subdivision) – RSL LAYOUT & DESIGN FOR LITTLE RIVER REALTY TRUST, LUCILLE HOWARD, TRUSTEE – 375 STAGE ROAD – MAP 17 LOT 25 – CASE #P07-08-SUB:
Mr. Ladd submitted two sheets of a plat to both the Planning Board and the Conservation Commission representative. He also submitted to the Board a plat that depicted both parcels and the entire subdivision. He submitted a copy of the State Subdivision application for this applicant, noting that the application for the Giles property would be submitted by the end of the week.
Chair Smith asked if all well radiuses had been corrected. Mr. Ladd stated that they had all been corrected with the exception of the Howard’s well. Ms. Beauchamp asked if an easement had been submitted for this well. Mr. Ladd stated that it had not.
Mr. Curry noted that there was no legend on this plat. Mr. Ladd stated that a complete legend will be on the full final set, noting that the plat he presented tonight is only a working drawing.
Chair Smith read for the record a letter from James Franklin, who surveyed Lot 23 in 1998 stating that the 1998 plat incorrectly showed Map 17 Lot 20 as being owned by RZM Real Estate Trust. It further states that although the town assessor had assessed it to RZM Real Estate Trust, his research indicated that Whitcher was the owner based upon the description in Book 1046 Page 110. Mr. Murphy, owner of Lot 20, identified himself and stated he did not understand. At Ms. Bonser’s request, Mr. Murphy pointed out on the plat the land that he believes is his. Chair Smith stated that this issue should be discussed after acceptance of the application and during public comment.
Chair Smith stated he did not feel that the large plat presented tonight showed all the details the Board needs for application acceptance, adding that as the Board went through the outstanding issues they would decide if there was enough on the plat for acceptance.
Mr. Curry noted that the proposed access road connecting with Route 152 still did not appear to be a 90 angle. Chair Smith stated that Mr. Ladd had explained that the curb cut of the road forced vehicles to be at a 90 angle when entering or exiting Route 152. He noted that access needs to be at a 90 angle but the regulations do not specify how far back the road needs to be at 90 degrees. Mr. Ladd stated that the shape of the curb cut allowed more than adequate room for the stacking of two cars to be at a 90 angle when entering or exiting at that intersection. He added that if the Board wanted to see it changed, he was open to discussion. Mr. Curry, speaking to members of the board, stated that he felt all large subdivisions had been required to meet this regulation in the past. Mr. Gylfphe noted that the
lower entrance of Brooks Crossing is not a 90 angle. Mr. Curry concurred and asked members if they felt the Board should request a change for this entrance. Ms. Bonser inquired as to whether this should be part of the acceptance discussion or design review. Ms. Beauchamp informed Ms. Bonser that according to regulations, it is considered part of acceptance. Mr. Gylfphe noted that the State’s engineer had reviewed and accepted the access. Ms. Beauchamp stated that the review was based on 8 lots (per the application), adding that she had had a conversation with Steve Ireland (DOT) who had informed her that if the subdivision had been presented as a whole (29 lots) an additional review of the access may have been required. Mr. Ladd, speaking to Ms. Beauchamp, stated that DOT had been provided with both sets of plans. At Chair Smith’s inquiry, Mr. Ladd stated that the access would go back (off of Route 152) for approximately
60’ before it turned to the right. At Mr. Harding’s inquiry, Mr. Curry stated that he wanted to know if the board felt the plat should be more consistent with other developments that have gone through the process or if they wanted to accept the intersection as drawn on the plat because it had received State approval. Mr. Gylfphe stated that there are many roads in other towns that do not intersect at 90 angles, including State highways. Mr. Curry acknowledged this, stating that Nottingham has this requirement in their regulations where other towns may not. Mr. Curry asked for a poll of the board. Mr. Harding stated that he felt if the regulations state 90 degrees, it should be 90 degrees. Chair Smith stated that he felt the board was being side-tracked by the drawing on the plat because the center line cannot be seen, noting that the traffic will enter and exit Route 152 at a 90 angle, unless they cross the yellow line. Ms.
Beauchamp asked if there was a particular reason Brooks Crossing had been allowed the less than 90 angle. Mr. Curry could not recall and Chair Smith stated that it was possible it appeared to be a 90 angle on the plat. Mr. Curry noted that Patriot’s Lane is another road that does not join at a 90 angle. Mr. Curry, acknowledging Mr. Harding’s earlier comment, stated he felt the regulations should be followed.
Mr. Curry made a motion to have the developer show the entrance of the subdivision at a 90 angle per Nottingham Regulations, noting that the road did not need to be reconfigured, it simply needed to be shown as a 90 angel.
At Ms. Mills’ inquiry, Mr. Curry clarified that he was asking the developer to clearly show a 90 angle where the road connected with Route 152. He acknowledged Chair Smith’s earlier comment regarding the drawing of the center line but noted that a slight changing of the road would make proposed Lot 25-1 a better lot. Ms. Bonser confirmed with the other members that if the town engineer did not like the grade of the road at the 90 angle then the board would allow a waiver to be submitted for the road’s currently proposed design. All members concurred. Chair Smith noted that proposed Lot 25-1 did not meet the regulations as designed. He referenced Subdivision Regulation Section V B.1.c., requiring all lot lines to be at right angles to the road. Mr. Davidson asked if the motion should
include the fact that if the town engineer has a problem with the road, the developer has the option to move it back to its currently proposed design. Mr. Curry informed Mr. Davidson that they were only looking to meet the regulations for acceptance at this time, noting that once the application has been accepted the board may, depending on the town engineer’s report, ask the developer to change the road once again.
Chair Smith called for a second and a vote on Mr. Curry’s motion. Mr. Harding seconded the motion. All in favor. Motion passed 7-0.
Mr. Curry listed outstanding issues: the legend, the wooded areas, the Wetland Scientist’s stamp, the waiver request and easement for the well, and the change to the road entrance. Mr. Ladd noted that the easement was drawn on the plat; however he could not provide an easement deed because there is currently only one owner and an easement cannot be given to yourself. Mr. Curry stated he thought that it would be ok to wait on the easement.
Mr. Curry noted that if the location of the brook was in question, it would also need to be corrected for acceptance. Ms. Beauchamp stated that the importance of her comment in the review had been based upon the deed references to the brook. Mr. Ladd stated that the Howard deed did not reference the brook and handed out copies of a warranty deed containing a description of Tract 2, which is Lot 20, RZM Realty Trust. Mr. Curry called out the coordinates while Mr. Ladd drew them on the hung plat. Mr. Ladd noted for the record that not all of the ‘landmarks’ in the warranty deed were in tact and stated that he had drawn these parts of the boundary lines in a straight line to the next available ‘landmark’. Tract 2 did not cross the brook. Mr. Ladd added that Lot 20 is identified as
having 33 acres and the lot that he had just drawn on the plat, with the assumed pieces of boundary lines, was 32.5 acres. Chair Smith informed Mr. Ladd that this was not the forum for settling a boundary dispute. Mr. Ladd agreed, stating he wants the board to know that he stands behind his findings.
Mr. Curry made a motion to recess the public meeting for acceptance of a 6-lot subdivision from RSL Layout & Design for Little River Realty Trust, Lucille Howard, Trustee until September 19, 2007 at 7:15, due to the lack of completeness. Mr. Harding seconded the motion.
Ms. Bonser asked for a review of outstanding issues. Mr. Curry stated for the record that the outstanding issues are the well easement (due at a later date) and waiver, wooded areas on the plat, complete legend, and the depiction on the plat of a 90 angle for the road entrance. Ms. Bonser asked if members still had issues with the 1998 plat. Chair Smith stated he felt that the issue was resolved as far as acceptance is concerned.
Chair Smith noted that the plat that had been used for this case would also be used for application acceptance for the following case (P07-09-SUB). Ms. Beauchamp noted for the record that SRPC had not reviewed the plat presented tonight. Mr. Curry stated they were going to recess Case #P07-08-SUB, but continue to use this plat for application acceptance for Case #P07-09-SUB.
Chair Smith called a vote on Mr. Curry’s motion and Mr. Harding’s second. All in favor. Motion passed 7-0.
PUBLIC MEETING – SUBDIVISION APPLICATION (acceptance, compliance, and final approval of a 23-lot subdivision) – RSL LAYOUT & DESIGN FOR LEONARD GILES REVOCABLE TRUST OF 2000 – NORTH SIDE OF GEBIG ROAD – MAP 17 LOT 31 – CASE #P07-09-SUB:
Mr. Curry noted that this application had had the same issues with well radiuses. Mr. Ladd stated all wells, with the exception of four, meet Nottingham requirements. He stated that he was requesting waivers for Lots 31-4, 31-8, 31-10, and 31-14 and that the request for these waivers pertains to Nottingham’s regulations, adding that when the houses, septics, and wells are designed, they would meet the regulations in that they would all fit within the buildable area. He informed the Board that although he could put the well, septic and home in the buildable area upon design, he could not place them all there on the plat while depicting the 4K area, which is larger than the septic area. He stated that he has to show the 4K area based on State regulations. Mr. Ladd stated that the State allows the 4K area to
be 10’ from the lot line; however Nottingham’s regulations call for 50’, a loss of 40’. He added that all 4K areas have two test pits. Chair Smith stated that the septics for proposed Lots 31-8, 31-9, and 31-10 appear to be outside of the buildable area. Mr. Ladd, after reviewing the plat, stated that things had shifted on the plat when updated and he would correct them for the next meeting. Ms. Bonser noted for the record that the board has discussed the fact that the septic system is going to end up wherever it does when it is installed, stating that she does not have a problem with the waivers. Chair Smith stated that according to State RSA, the Building Inspector needs to follow Nottingham’s Subdivision Regulations, which currently is a setback of 50’ for septics. Ms. Bonser stated that the board had determined that septics are not structures. Mr. Curry felt that the Planner should review the new plat
for other things that may have shifted. Mr. Ladd inquired as to whether or not the well radiuses could cross the boundaries. Mr. Curry stated that they have been asking other to move them within to be in compliance and would request the same of this applicant.
Mr. Curry made a motion to recess the public meeting for acceptance of a 23-lot subdivision application from RSL Layout & Design for Leonard Giles Revocable Trust of 2000, Gebig Road, Map 17 Lot 31, Case #P07-09-SUB, until September 19, 2007 at 7:15 PM due to the plan set before the board not being complete and to give the Planner time to review the plats. Ms. Mills seconded the motion.
Chair Smith suggested to Mr. Ladd that he make the recommended changes and submit new plats to the Planning Board Office prior to the next meeting to provide the Planner time to review the changes. Mr. Ladd stated he would submit them next Tuesday. Ms. Beauchamp asked Mr. Ladd if he was going to provide language for access to the cemetery. Mr. Ladd stated he would, if needed. Ms. Beauchamp inquired about the driveway permits. Ms. Chauvey stated that the Building Inspector is in receipt of the applications; however he had an issue with the one for the road.
Mr. Ladd stated he had tried to contact the Nottingham Fire Department but was told that they could not discuss the subdivision with him at that time. Chair Smith confirmed that the Planning Board’s process is to contact the fire department once the application has been accepted. Mr. Ladd stated that it would be nice to know before-hand if they were going to require cisterns. Ms. Beauchamp informed Mr. Ladd that there is a Fire Protection Map in the Planning Office and that he could check that to see where things are currently located so that he could get an idea of what may be required.
Chair Smith called the vote on Mr. Curry’s motion and Ms. Mills second. All in favor. Motion passed 7-0.
PUBLIC MEETING – SUBDIVISION APPLICATION (acceptance, compliance, and final approval of a 2-lot subdivision) – COOK, PEARLE – 9 SMOKE STREET – MAP 24 LOT 1A – CASE #P07-10-SUB:
Chair Smith opened the public meeting at 8:40 PM.
Peter Landry spoke in representation of Ms. Cook and her daughter and son-in-law, stating that they currently live together at 9 Smoke Street. He stated they want to subdivide the existing 6.5 acre parcel to create the lot he had identified on the plat as Lot 1A-1 containing 4.4 acres, and leave the existing house lot with approximately 2.11 acres. He noted that the newly proposed lot sits just to the northeast of the existing house. He stated the frontage is on Smoke Street, noting that the existing lot will have 362’ of frontage and the new lot will have approximately 450’ of frontage. He stated the topo sheet depicts a 200’X200’ square for the buildable area, but they would be revising it due to slopes greater than 25º. He stated he would submit a revised plat which would show a
minimum of 60,000 contiguous sq. feet. Chair Smith confirmed with Mr. Landry that the lot he was referring to was the existing house lot.
Mr. Landry reported that the Impact Statement had been submitted with the application and that they have initiated State Subdivision approval and received a response that the review has been completed and DES is waiting for the dredge and fill permit. He reported that they had received a permit for the driveway.
Strafford Regional Planning Commission’s Compliance Review: (See attached)
Ms. Beauchamp stated that the reason the issue of ‘buildable area’ is continually brought forth is because she cannot ignore the regulations regardless of the discrepancies. Mr. Landry stated that ‘buildable area’ is defined nowhere in the Zoning Ordinances other than in the definitions, noting that ‘buildable area’ is referenced in the Subdivision Regulations. He stated that Ms. Beauchamp was attempting to use ‘buildable area’ where ‘fit for building’ has always been used. Ms. Beauchamp stated that the Subdivision Rules & Regulations call for the ‘buildable area’ to be shown, not ‘fit for building’. She further stated that the definition states the area of specified dimension must meet all existing setbacks. Mr. Landry
stated that he believed the “all existing setback” requirement came from Section IV F of the Subdivision Regulations. Ms. Beauchamp informed Mr. Landry that those words are in the definition of ‘buildable area’ in both the Zoning Ordinances and the Subdivision Rules & Regulations. Ms. Beauchamp stated that she has interpreted this definition to mean that the buildable area cannot include either the 50’ or 75’ wetland setback. Referring to the last plat that was in front of the board, she stated that the 60,000 sq. ft. contiguous area had followed the wetland setback. She believes that the 200’X200’ area should also not include the setback. She added that she has to include this in her report; noting that she cannot ignore what is in the regulations. Chair Smith stated he feels the ordinance was not written in a manner to suit its purpose. Ms. Bonser stated she believed they were written
based on ordinances that were not passed. Mr. Landry reported that he was going to redo the plan to show a 60,000 sq. ft. contiguous area; however the area goes to the lot line and, under Ms. Beauchamp’s interpretation, does not meet regulation.
In reference to the comment for Section IV F, Mr. Landry stated that the 4K area is nowhere in Nottingham’s regulations. Chair Smith stated that Nottingham’s regulations reference the State, and the State’s does say a 4K area is required. Mr. Landry replied that Nottingham requires two test pits and the State’s does not. Chair Smith agreed, stating that that part of the Town’s regulations are more restrictive. Mr. Landry asked if the Board was using State Regulations or not. Chair Smith stated that the Town has to go along with State regulations. Mr. Landry asked if 10’ off the lot line was ok for septic placement. Ms. Beauchamp stated that the Town regulations use the State regulations as a minimum. At Mr. Landry’s inquiry, Chair Smith confirmed that
the Planning Board wants to see the 4K area because the State calls for it to be depicted. Mr. Landry noted that, in the past, the Board has allowed just two test pits. Mr. Landry stated that the Letter of Determination from the Planning Board has made this issue more confusing. Chair Smith stated that the definition of structure came from Zoning. Chair Smith further stated that this determination was made with the hope of driving change to the subdivision and zoning regulations. Mr. Landry, wondering how to proceed, stated it sounded to him as though the Planning Board had determined that they can go along with the State on this. Chair Smith stated that Nottingham’s Subdivision Rules and Regulations specifically called out a septic as needing to meet the 50’ setback. Mr. Landry stated that he has been doing plans in front of the Nottingham Planning Board for seven years, and although nothing has changed by regulation, he is
expected to do things differently tonight. Chair Smith stated what has changed is the following of the regulations as written, rather than following them the way the Board wants them to be. Mr. Landry did not agree. Mr. Landry asked if he was being told that the 4K areas need to be 50’ from the lot line, noting that the Building Inspector will allow them to be 10’ from the lot line. Chair Smith stated that the Building Inspector is not supposed to allow it to be 10’ from the lot line if it is on a subdivision plat. Mr. Landry informed the board that on the plat they were looking at, test pits 1 and 2 did not meet the 50’ setback for a 4K area, noting that there is an existing leach bed. Chair Smith informed Mr. Landry that he did not need to show a 4K area for the existing house lot, since it already had a septic. Mr. Landry indicated he thought he had just been told that because the State required it, so did the
Planning Board. Ms. Beauchamp stated that the existing septic is grandfathered and not of concern to the Planning Board; however if he is to show it on the plat then it needs to conform. Mr. Landry agreed to remove the test pits and 4K area from the existing house lot. Ms. Beauchamp asked Mr. Landry if intended to move the 200’X200’ ‘buildable area’ for the proposed lot out of the wetlands. Mr. Landry replied that he did not. Ms. Beauchamp asked the Board if they were ok with this. Mr. Landry stated he cannot meet the 50’ setback as they are being applied to the ‘buildable area’, noting that he felt this may be an issue for the Zoning Board of Adjustment. Chair Smith stated that this is a proposed 4.4 acre lot with minimal wetlands, noting that it does not meet the regulations. Mr. Curry did not feel the wetlands were minimal, indicating the wetlands to the western and southeastern sides.
Ms. Bonser stated that the setback they were enforcing was in the subdivision regulations. Ms. Beauchamp stated that the definition of ‘buildable area’ in zoning calls out the setbacks. Mr. Landry stated that the plat meets the zoning requirements. Chair Smith disagreed. Mr. Landry stated that it meets ‘fit for building’. Ms. Beauchamp stated that the subdivision rules called out ‘buildable area’. Mr. Landry stated that Nottingham is throwing out the zoning ordinances to enforce the subdivision regulations, noting that if you can meet the subdivision regulations, you would meet the zoning requirements hands down. Ms. Bonser asked if the application could be advanced with a waiver as opposed to sending the applicant the Zoning Board of Adjustment. Mr. Curry stated that he did not understand why that could not be done based on past practice. Chair Smith stated they have always allowed the
200’X200’ and the 60,000 area to go right to the property boundary. Ms. Beauchamp asked the board for clarification on the purpose of their Letter of Determination. Ms. Mills stated she had thought the Board had agreed they were going to start following the regulations. The members agreed that the purpose of the letter was to let applicants know that the Board intended to start following the regulations regarding septics as written. Mr. Curry stated that a waiver should not be granted. Mr. Landry indicated that he believed granting waivers was part of the process. Chair Smith stated that the definition is in the Zoning Ordinances and that the Planning Board does not have the authority to waive Zoning. Ms. Bonser stated that Mr. Landry would apply for a waiver from subdivision. Chair Smith again stated that the definition is in the Nottingham Building Codes and Zoning Ordinances. Chair Smith stated that if this is how
they plan to apply the rules then they will have to supply all applicants with an application for the Zoning Board. Ms. Beauchamp stated that she did not agree, noting that there are many lots that meet the regulations. Referring to the last two cases, Mr. Landry stated that the board had just seen a 29-lot subdivision and he did not believe that one lot would meet the regulations. Ms. Beauchamp stated that only four of the 29 lots did not meet regulations. Mr. Landry asked Ms. Beauchamp if she had reviewed the ‘buildable area’ for all 29 lots. She replied in the affirmative, noting that they had been reviewed on the original plats submitted but not on the plat submitted this evening.
Ms. Beauchamp stated she had an issue with the 4K area. She asked Mr. Landry if he intended to move it or submit a waiver. Mr. Landry stated that he had more than a 200’X200’ area to build on this lot, noting that he was showing a 200’X200’ area, as required, adding that he did not intend to move the 4K area. Ms. Beauchamp asked if there was a reason for the way it was laid out. Chair Smith asked Mr. Landry if he could get the 60,000 sq. ft of contiguous area without including the setbacks. Mr. Landry replied that he did not believe he could. He added that he could slide the 200’X200’ area to include the 4K area but he did not see why he had to since the 4K area was 50’ from the lot line. Ms. Beauchamp stated that her concern was in regards to constraints on
the land. Mr. Landry stated that he intentionally placed the 4K area where he had. He again voiced the opinion that he felt this issue may need to go to the Zoning Board of Adjustment to get straightened out, noting that this discussion had lasted more than 45 minutes. Ms. Bonser stated there is no reason why the 4K area cannot be where Mr. Landry had placed it, adding that she wished to move on from this issue. Chair Smith stated they were still working on the 200’X200’ area. He stated he was aware of how they have been handling the 200’X200’ area, however, if they were going to handle it differently, Mr. Landry needed to go to before the Zoning Board of Adjustment. Ms. Mills stated she felt the Board needed to back the Letter of Determination, noting that they would find themselves in trouble if they continued to waver. Chair Smith stated that the 200’X200’ area had nothing to do with their Letter of
Determination. He informed Mr. Landry that the septic system was all set, noting that the 4K area for the existing lot should be removed.
Chair Smith again confirmed with Mr. Landry that neither a 200’X200’ area or a 60,000 sq. ft. contiguous area could be placed on the lot without inclusion of some of the 50’ setback. Mr. Landry stated that he did not believe that many lots that come before the Planning Board could meet that requirement. He asked how to proceed. Mr. Curry stated he agrees that in the past they have allowed the ‘buildable area’ to include the 50’ setbacks. Ms. Mills stated she also knows that they have done that in the past; however, since she has been on the Board she has been working toward following the regulations. She feels they could end up with serious problems, and possibly in court, if they continue to disregard what is on the books. Ms. Bonser stated that there is a problem with
that because the ordinances do not agree with each other. Ms. Mills stated that they need to work with what they currently have and work towards changing the inconsistencies. She felt the Board opens themselves up to big problems when applicants are not consistently treated equally in regards to the regulations. Chair Smith stated his opinion was that the Board was going to open themselves to more problems if they tried to institute change at this point. Ms. Bonser agreed, adding that they have been doing things the same way for 20 years and they have had no problems. Ms. Mills replied that she had contacted Concord to ask them about the Board’s procedures and following regulations and she was informed that it did not matter how long the Board had been doing it this way, the ordinances needed to be followed. Ms. Bonser indicated that she felt Ms. Mills would have gotten a different response if the people she had spoken with took a look at
Nottingham’s regulations. Mr. Davidson stated that these issues are/have been brought on by the Board itself, and agreed that it may open the Board up for serious problems if they attempted to change the way they have practiced in the past. Chair Smith stated that the definition of ‘buildable area’ is in the Zoning Ordinances and the Planning Board does not have jurisdiction over that, adding that it would have to go before the ZBA. Ms. Bonser stated that she believed sending Mr. Landry to the ZBA would only clear it up for this case. Mr. Landry informed Ms. Bonser that if the ZBA granted an administrative appeal instead of a variance it would pertain to all cases that follow. Mr. Curry stated that there is conflict between Zoning and Subdivision and he believed if they changed their process then they were changing Zoning. Chair Smith stated he did not agree because applicants also have the option of 60,000 sq. ft., noting that
that could drive the lots to more than two acres. Ms. Bonser agreed that it could drive the lots to be bigger. Mr. Curry felt that, in effect, that changes zoning. Chair Smith felt the Board should continue with the Completeness Review and vote at the end.
SRPC’s review noted that the applicant had applied for a wetlands permit to impact 1,004 sq. ft. of wetland for the driveway crossing. Mr. Landry asked Ms. Beauchamp if she had seen the dredge and fill application, noting that he had not. Ms. Beauchamp stated she had not seen it either, adding that she had gotten the information from the DES web site. Mr. Landry stated that he would have to get back to the Board on the question of the culvert since he had not seen the application.
Mr. Landry stated he was planning to set an iron pin in poorly drained soils and he was not planning to place a granite bound in very poorly drained soils.
In response the to comment regarding RCRD Plan No. 01344, Mr. Landry explained that when doing a search by plan number at nhdeeds.com, the site does not recognize a zero at the beginning of a plan number. He stated that the plan that comes up when searching this plan number is actually Plan #1344. He stated it is a known glitch in the system and there is no way to force recognition of the beginning zero.
SRPC’s review stated that the County Soils Map reflects a larger amount of poorly drained soils for proposed Lot 1A-1. Mr. Landry indicated that he believed the County Soils Maps are inaccurate.
Mr. Landry stated that he could not find a recorded easement for the NH Electric Cooperative transmission lines.
Ms. Beauchamp stated that the reason she inquired about the current use of the property was due to a photo taken in 2005. Chair Smith stated he believed the property had been clean up since that time. Mr. Canney, Ms. Cook’s son-in-law confirmed that it had been cleaned up. Mr. Landry replied that the current use is residential.
Mr. Landry asked if he understood correctly that as the plan sits now, the members of the Planning Board did not feel it met their requirements. Mr. Curry stated that was correct for some members. Mr. Landry stated that his applicant would like to see the plan moved along and that she would rather he move the 200’X200’ area to include the 4K area than take the time to go through the Zoning Board. Mr. Canney stated that he felt that he was being used as a guinea pig. Chair Smith stated that he did not care for it either, however, he felt that the Planning Board needs to follow the regulations. Chair Smith asked when the ZBA was meeting next. Ms. Chauvey stated that they were meeting on both September 11 and September 18, noting that she did not have enough time to notice this case for the
September 11 meeting and would not be able to put another case on for the 18th without speaking with the ZBA Chair first. She also stated that notice has already been published for the September 18 meeting. Ms. Bonser asked the applicant if she was planning on doing something with this proposed lot this year. Ms. Cook replied that she was. Chair Smith stated that the Zoning Board is required to hear an application within 30 days and that they usually make a decision the night of the hearing. Ms. Bonser stated that this would put the applicant into October, not the time to start pouring concrete. Ms. Mills asked when the proper time to start following the regulations is. Ms. Bonser responded that the Board has been doing it just fine for the last 20 years and they have been doing it correctly. She further stated that the ordinances are screwed up and she does not feel people should be victimized because of that. Ms.
Mills stated that she does not feel people are victimized by following the regulations. Ms. Bonser stated that although Ms. Mills is not being victimized, she strongly feels others are. Mr. Curry asked for a vote for the record of how all members stand on this issue.
Chair Smith asked if the members felt that the Planning Board could go to the ZBA for an administrative decision. Ms. Beauchamp stated that they have no cause in that the application would be for an appeal to an administrative decision and the Planning Board has no administrative decision to appeal. Mr. Landry stated that he needs to go before the ZBA. He stated that he was being informed that his clients could not build on their land because the Board had decided to start enforcing what should have been enforced, but has not been for 20 years. Ms. Beauchamp informed Mr. Landry that the Board has been enforcing the regulations for the last couple of applications and that one subdivision has made it through the process. Mr. Landry stated that he was going to start looking at the applications because he does not
think that the 200’X200’ or 60,000 sq. ft. continuous area is meeting the setback. Ms. Mills asked Mr. Landry if he was threatening the board. Mr. Landry stated that he was not, he just wants to see it for himself. He stated that he has been bringing plans before the Board for eight years and he has done nothing different with this one, nor have the regulations changed. Mr. Curry stated that this issue is not clear. He further stated that if the Board decides to enforce it then they are following the regulations and if they decide not to enforce it they are still following the regulations because the regulations are in conflict with each other. He added that the Board has been aware of this conflict for at least three years, if not the past four. He stated that he has been looking to fix these things, unfortunately, all the Planning Boards over the past 4 years have not been able to fix them. Mr. Curry stated that this is
partly why they put the money aside to hire a Planner and the Board is still not there, yet. Ms. Bonser stated that she felt that the manner in which they were trying to correct it was not correcting the problem. She added that it is hurting the applicants.
Ms. Mills made a motion to deny the application because it does not meet the definition of buildable area as written in the Nottingham Building Codes and Zoning Ordinances. Mr. Curry seconded the motion for discussion.
Chair Smith called for discussion. Mr. Curry stated that he was going to vote in favor of the applicant, not because he felt they should not be following the regulations but because the issue is that it is not clear to him what they are enforcing. He stated it also seems clear to him that, in some cases, the Board would then be requiring at least 300’ of frontage and potentially more than two acres. He feels that in doing that they are effectively changing the Zoning laws and that this is something that needs to go before town vote. Mr. Davidson stated that he sees all sides. He is concerned that the ZBA cannot make a decision on this issue because two regulations are conflicting. He stated that he also will vote no on sending the applicant to the ZBA. Chair Smith stated that he also felt that
the Board has been handling it the same way for a very long time and he believes if they change the handling for this case the Board will open themselves to more problems. Ms. Mills stated she understood that the issue is cloudy, however, she still feels that the Board needs to take a stand to follow the regulations. Ms. Bonser stated she believed the Board had taken a stand and it is the opposite of what Ms. Mills was attempting to do.
Chair Smith called for a vote on the motion made by Ms. Mills and seconded by Mr. Curry. Mr. Curry, Chair Smith, Ms. Bonser, Mr. Harding, and Mr. Davidson voted against the motion. Ms. Mills voted in favor of the motion. Motion failed 1-5.
Mr. Landry asked if he needed to prepare a waiver. Mr. Curry stated that a waiver was not needed.
Ms. Bonser made a motion to accept the plan as presented by Mr. Landry. Mr. Curry seconded the motion.
Chair Smith stated that in order to stay consistent with the last application, Mr. Landry would need to remove the 4K area on the existing lot. Mr. Curry asked Ms. Beauchamp if she could foresee any issues for compliance. Ms. Bonser felt that the application should get through acceptance before starting discussion of compliance. Mr. Curry stated he was asking this now so that there could possibly be acceptance and approval at the same meeting. Chair Smith felt that this was premature. Ms. Mills stated she did not want to give the applicant any expectation when there was still so much outstanding. Mr. Curry confirmed with the other members that it was not feasible, in their judgment, that this application could be handled in one more meeting. Ms. Bonser stated that if the application was accepted with
caveats tonight, then the process could move forward. Ms. Mills asked for clarification as she was under the impression that the application was not complete. Chair Smith stated it was a technicality in that there is too much information on the plat. Chair Smith stated he did not feel they should accept it. Mr. Davidson agreed. Mr. Landry stated that the applicant is still waiting for wetlands approval and that they had time to come back in a couple of weeks.
Mr. Curry made a motion to recess the public meeting for acceptance of a two-lot subdivision application for Pearl Cook, 9 Smoke Street, Map 24 Lot 1A, Case #P07-10-SUB until September 19, 2007 at 7:15 PM. Mr. Davidson seconded the motion. All in favor. Motion passed 6-0.
OTHER BUSINESS:
MUNICIPAL LAW LECTURE SERIES: Ms. Chauvey asked the Planning Board if they were planning on attending the Lecture series and if so, were they going to reschedule the October meetings. She was informed that they would be attending and to change the October 17 meeting to October 10.
RESIGNATION: Chair Smith read for the record a letter of resignation from Mr. Curry effective immediately.
Chair Smith made a motion to regretfully accept Mr. Curry’s resignation as a Planning Board Alternate. Ms. Mills seconded the motion. Ms. Mills, Chair Smith, Mr. Curry, Mr. Harding, and Mr. Davidson voted in favor. Ms. Bonser voted against. Motion passed 5-1.
WORK STUDY: Ms. Mills stated that she had all the paperwork needed for the work study program that had been discussed at the end of last year, beginning of this year. She added that she had been trying to get someone to sign the papers since last January and felt at this point that it needed to go to the Board of Selectmen. Chair Smith stated he had thought that had fallen by the wayside due to the requirement of a supervisor with a Master’s degree. Ms. Mills informed
Chair Smith that that requirement had been under the internship program, which was no longer being looked at. Ms. Bonser stated that the Planning Board should vote to send it to the Selectmen for approval. Ms. Mills stated that the board had already voted and she has been trying to move it in that direction since January. She noted that this is the time of year that students sign up for work study and she felt the paperwork needed to be sent back to UNH as soon as possible. Ms. Mills was instructed to pass the documentation on to Ms. Chauvey to forward to the Board of Selectmen.
PLANNING BOARD MEMO:
Ms. Mills asked if the Board had received a response to a memo that was sent to the Board of Selectmen regarding the Building Inspector. Chair Smith stated he believed the Selectmen had discussed the memo. The Board asked Ms. Chauvey to send another memo to the Board of Selectmen asking them to provide a response to the first memo and the dates of the meeting at which it was discussed. Chair Smith asked Ms. Chauvey to obtain copies of the minutes for those dates.
DEERFIELD ROAD CISTERN:
Chair Smith read for the record the letter from Chief Vilchock of the Nottingham Fire and Rescue Department and the recommendations from RCCD. Chair Smith asked Ms. Chauvey to contact the developer to ask if they had had an engineer who could certify installation, and if so, to obtain any and all records of inspections and a certification. He further instructed her that if there had not been an engineer, she was to type a letter informing the developer that he would have to remove and reinstall the cistern or the subdivision would be revoked. Ms. Chauvey asked Chair Smith to contact her tomorrow afternoon to see if he needed to come in to sign the letter.
GERRIOR LANE TRUST – THE HOMESTEAD DEVELOPMENT:
Ms. Chauvey stated that Mike Daigle had called her on August 16 and she had informed him that the Planning Board had sent a letter requesting someone’s presence at the meeting of August 15 to update the Board on the progress of the development and the intent to renew the bonds. Mr. Daigle stated that the letter had gone to the wrong address and she informed him that she had sent it to the address that he had provided to her. She further informed him that the only other opportunity for someone to appear before the expiration of the bond would be at this meeting. Mr. Daigle responded that he would speak with ‘Peter’ and either himself or ‘Peter’ would get back to her about appearing tonight. She had not heard from either of them and no one had appeared.
In reference to the discussion at the August 15 meeting in which the Board had asked her to write a letter to the bank to pull the Letters of Credit, Ms. Chauvey informed the Board that she had reviewed the Letters of Credit, researched and prepared the three legal documents required by the Letters for drawing of the funds and had sent them to Council for review. These three documents were included in the members’ packets this evening.
Ms. Chauvey informed the board that she had not received an answer from Council as to whether or not the maintenance bond should also be called. Ms. Bonser asked for clarification on what the maintenance bond covered. Ms. Chauvey explained that it was put in place to cover damage to the road during the development in Barrington (considered Phase II). Ms. Bonser felt the Planning Board should vote to call this Letter also since there would be development at some point and no other way to cover the cost if the road was damaged. Ms. Bonser informed the Planning Board that the Board of Selectmen had already discussed and voted on the calling of the bonds at their last meeting. She had been elected, by unanimous vote, to follow through on the signing of the documentation to call the Letters.
Ms. Chauvey also informed the board of a situation that took place regarding the review of the documents that had frustrated her. She stated that she had faxed the documents to the Planning Board’s attorney with what she believed was a three-week lead time; however, during an unrelated conversation with him on August 21 she found out he would be leaving for vacation mid-day on August 23. She inquired about the documents, to which he had responded that he would review them and get back to her the morning of August 23. She informed the board that she did not hear back from him and, therefore, placed a call to his secretary that afternoon explaining the situation with the documents and that she had expected to hear from him before he left. His secretary informed Ms. Chauvey that the attorney had left but would be
calling in later that day, stating that she would ask him about the documents and get back to Ms. Chauvey. Ms. Chauvey informed the members that she did not hear back from the attorney’s secretary. Ms. Chauvey called his secretary again on the afternoon of August 29, and was informed by her that the attorney had said he was sorry but did not have time to review the documents. Ms. Chauvey informed his secretary that the Letters of Credit were due to expire on September 15 and that the documents she had faxed needed to be reviewed for drawing of the funds so they could be presented to the Planning Board for a vote on September 5. The secretary stated that the attorney was due back September 4th. Ms. Chauvey informed the secretary that the documents could not wait as they were legal documents which she had prepared, adding that if she had not prepared them correctly, time was needed for them to be redone. Ms. Chauvey informed the
board that, at this point, the secretary, aware of Ms. Chauvey’s displeasure, offered to ask another attorney in the firm if he could review the documents. Ms. Chauvey reported that the other attorney agreed to review the documents. He responded back to Ms. Chauvey within 1 hour, stating that they were well done and he was placing them in his own reference file for future use. Ms. Chauvey stated that the Planning Board’s attorney followed up with a phone call to her the next morning to apologize and informed her that, although the bank may balk and request something more or different, the documents she had prepared adequately covered what was requested in the Letters of Credit. Ms. Chauvey stated to members of the board that she felt the Planning Board’s attorney should have passed these time sensitive items on when he realized he did not have time to review them prior to leaving on vacation. Chair Smith stated that he has
also experienced more and more difficulty in communicating with the Planning Board’s attorney. Ms. Bonser noted that some issues are time sensitive and need to be addressed in a timely manner. Chair Smith suggested that the Planning Board send a letter to Upton & Hatfield to address the issue. Ms. Beauchamp asked if the attorney worked for the Planning Board or the Town. Chair Smith stated he believed that he worked for both. Ms. Beauchamp suggested that the situation be addressed by the Board of Selectmen. Ms. Bonser agreed, stating that the Planning Board should send a memo to the Selectmen outlining the issues and stating that the Planning Board is not happy with the attorney’s performance. Chair Smith felt the memo should state that the Board wanted to search for a new attorney. Other members suggested requesting Attorney Mayer. Chair Smith was not sure if that was appropriate since he was from the same
office as the Planning Board’s current attorney. Ms. Beauchamp stated that the issue is not with the law office of Upton & Hatfield, but possibly that the Planning Board’s present attorney was overloaded with clients. Ms. Chauvey stated that she was only informing the Board of a situation because she felt they should be aware of possible issues. Ms. Bonser felt the reaction was appropriate, stating that the situation had been handled unacceptably and unprofessionally by the Planning Board’s attorney. Board members concurred that Ms. Chauvey should send a memo to the Selectmen.
Returning to the issue of the Letters of Credit, Ms. Bonser stated that she felt the Board should vote to call the Letters.
Chair Smith made a motion to follow through with the appropriate steps to call in Letter of Credit #0307306-0201 in the amount of $102,319.96 due to expire September 15, 2007, for Gerrior Lane Trust, as presented by the Board of Selectmen. Ms. Mills seconded the motion. All in favor. Motion passed 6-0.
In regards to the maintenance bond, Ms. Chauvey asked the Board if the road could be bonded by the future developers. Ms. Beauchamp stated that Nottingham only does bonding during the subdivision phase and that the subdivision for Gerrior Lane Trust has already been approved; drawing of the Letter of Credit would close the subdivision phase of this development. She explained that the lots have been created and future developers would only be coming in to develop the individual lots, not to apply for a subdivision.
Chair Smith made a motion to follow through with the appropriate steps to call in the maintenance bond Letter of Credit #0307306-0203 in the amount of $24,133.44, due to expire September 15, 2007, for Gerrior Lane Trust, as presented by the Board of Selectmen. Mr. Harding seconded the motion. All in favor. Motion passed 6-0.
SOPHIA WAY: Ms. Chauvey informed the Board that she had spoken with Mary Currier from RCCD, who had informed her that they (RCCD) had received excellent records fromr Beals & Associates regarding repairs after the flooding, however they had not received additional documentation which Beals had informed them would be coming from Severigno. Ms. Currier had stated that she would follow up with Beals.
DISCUSSION OF RSA’s: Ms. Chauvey excused herself as Secretary to the Planning Board and asked if she could speak to the Board as a resident of Nottingham. Chair Smith invited her to speak. Ms. Chauvey stated that wanted to speak as resident about the Planning Board’s process, or lack of official process, regarding applications for subdividing and/or building on private roads. She is aware that this issue has come before the Planning Board by way of preliminary hearing and design review cases several times over the past year. She stated that she feels she has seen the Planning Board loose direction every time this issue comes before them and further feels this is a hindrance for both the Planning Board and the people/residents appearing before the Board in these cases. She stated that one
case in particular has pushed her not only as an employee but as a resident to start researching the NH RSAs and Town regulations. She stated that although she has been able to find rules and regulations governing the issuance of building permits for private roads, she has not been able to find anything regarding subdivisions on private roads. She noted that she has studied RSA 674:41 in its entirety and believes that it pertains only to the issuance of building permits. She believes that she has a good understanding of this RSA and that it does not address subdivision, at all. Ms. Bonser stated that the lot has to be a pre-existing lot; that the intent behind the Nottingham rule, which is included in RSA 674:41, pertained to existing lots and was not meant to allow subdivisions on private roads. Ms. Beauchamp agreed. Ms. Chauvey stated that the RSA does not address subdivision at all; it strictly pertains to the issuance of building permits. Ms. Bonser stated the rule was
intended to state that if someone owns a pre-existing lot on a private road, they are eligible to obtain a building permit. She further stated it was also intended to not allow subdivisions on private roads. Ms. Chauvey again stated that RSA 674:41 only addresses the issuance of building permits, not subdividing. Ms. Beauchamp advised Ms. Chauvey to read A Hard Road to Travel. She also referred Ms. Chauvey to e-mails she had sent to the Planning Board several months ago on this issue. Ms. Chauvey stated she had read the e-mails and the interpretation from Attorney Sanderson (Local Government Center) but again felt that all that information had pertained only to the issuance of building permits on private roads. Ms. Chauvey stated that she is not finding RSAs pertaining to subdivisions on private roads. Ms. Bonser, noting that she is not a lawyer and her interpretation may be incorrect, stated that she has seensome law that if there
has been previous subdivisions on a particular private road then the road, up to the point of the previous subdivision, is open for subdividing. Chair Smith stated that he felt that was kind of in the RSAs. Ms. Beauchamp agreed. Ms. Chauvey stated that if that law does exist then in some cases there is no reason to send the applicant to the ZBA. Ms. Bonser, using Barderry Lane as an example, stated that there have been subdivisions done all over that road. Ms. Chauvey stated that she feels the process of sending all cases to the ZBA is a costly hindrance to the applicants, and wastes time for both the Planning Board Members’ and the Zoning Board Members. Ms. Bonser suggested getting legal advice on the proper procedure. Ms. Beauchamp informed the Board that Paul Sanderson from LGC is the leading attorney for subdivisions. Ms. Bonser asked if he could come in to do a private workshop for the Planning Board. Ms. Beauchamp
stated that they do offer private workshops, noting that there may be a fee involved. Ms. Bonser stated she felt the Board needed to go in this direction but inquired what to do in the mean time. Chair Smith asked Ms. Beauchamp to see if Attorney Sanderson could come to the next scheduled meeting in which this issue was involved.
Ms. Bonser stated she needed to leave.
Ms. Mills made a motion to adjourn. Mr. Davidson seconded the motion. All in favor. Motion passed 6-0.
Meeting adjourned at 11:10 PM.
Respectfully submitted,
Traci Chauvey
Planning Board Secretary
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