NOTTINGHAM PLANNING BOARD
July 1, 2009
PUBLIC SESSION
Approved & Amended
Type of Meeting: Scheduled Workshop with Guest Speaker
Method of Notification: Posted at the Nottingham Municipal Building & Nottingham Post Office
Meeting Location: Nottingham Municipal Building
PB Members Present: Scott Canney, Chair; Arthur Stockus, Secretary; Bill Dean, Vice Chair; Mr. Peter Gylfphe, Ms. Susan Mooney, Ms. Mary Bonser; Selectmen’s Representative, Robert “Buzz” Davies; Alternate Member
PB Members Absent: Traci Chauvey; Alt. Member, Cheryl Smith; Alt. Member
Others Present: Lisa Sears; Land Use Clerk, Burton Simmons, Sharon Simmons, Marjorie Smith, Nelson Smith, Jim Fernald, Skip Seaverns, Charlie Reid, Ken Levenson, Terry Bonser
Chair Canney called the meeting to order at approximately 7:03 pm. Mr. Davies was seated for the open seat. Chair Canney announced the first agenda item.
Jim Fernald- Concept review for possible subdivision on Map 52, Lot 4-2
Mr. Fernald showed the Board a sketch of his 115 acre property on Pawtuckaway Lake. He explained that he would like to cut off a house lot (lakeside) for his son. He explained the location of his existing house and half mile long driveway and approximately where he would like to put a minimum sized lot along the lake for his son’s house. He asked if it was possible to not have any frontage on Deerfield Road but instead have him share his driveway then break off to the proposed lot. Members of the Board suggested that the lot could have the required 200’ of frontage on Deerfield Road by including a narrow strip all the way back to the lake( a back lot subdivision). Mr. Fernald stated he didn’t want to do that mostly due to cost.
The Board explained that he would have to go before the Zoning Board of Adjustments (ZBA) to ask if he could create a new lot without the required 200’ of frontage. They briefly discussed the width of his existing driveway, but it was noted that his driveway is not a road no matter the width. The Zoning Ordinance states that all lots must have 200’ of frontage on a Class V road or better. The Board explained that he must go before the ZBA.
Before the Board moved the next case, Ms. Bonser recused herself noting that she is an abutter to the next case. She moved to a seat in the audience. Chair Canney explained to the Board members that Mr. Dean had attended the ZBA meetings related to this case and he could be perceived as having bias against this case. Mr. Dean noted he was concerned for the ground water/run off from the water on Mr. Smith’s property because his partner’s house is down stream to Mr. Smith’s land. Mr. Dean stated that he felt he was not biased and could hear the case fairly. Ms. Bonser stated that she believes when there is any appearance of bias then the member should step down in order to preserve the integrity of the Board. Mr. Dean stated that he has spent time looking at the files and has gotten the hard facts and
believes he can be fair. Mr. Smith stated that he didn’t think there would be a problem with Mr. Dean staying on the Board. Chair Canney called the case:
Case # P09-03- SUB: Nelson E. Smith, Sr. – 91 McCrillis Road – Map 25 Lot 16-2 – Application for a 2- lot Subdivision (acceptance, compliance review, and final approval)
The Board reviewed the memo from the Building Inspector and the set of plans. It was noted that the surveyor’s name on the application has changed and the new surveyor had been notified and the proper fees had been paid. Mr. Smith explained that the State Subdivision Approval is under way and they had been on a site walk with in the last few days. The Board was ok with the scale of the plans at one inch equals 40’ because it was actually more legible than the required one inch equals 50’ scale. There is a typo on the plans in the numbering of the lots that will be corrected before they are approved.
Discussion was on how five feet of the corner of the existing house is in the new setback. They discussed possible solutions to it and Mr. Smith seems to think that the easiest solution would be to remove that part of the deck instead of going back to the ZBA or narrowing the driveway. Ms. Mooney asked about new wetlands crossings. Mr. Smith noted there were none; they reviewed the wetland areas on the plan.
Mr. Dean expressed his concern for the existing septic system on the new lot. He was concerned that there could be accidental damage to the leach field and the possibility of that any damage leaking off Mr. Smith’s property and into the groundwater and abutters wells. Mr. Smith explained that the system is currently working and has been State approved as a 3bdrm/dumping station which was larger than required, at the time. He noted that he has never disturbed the area when any work was done on the property. Mr. Dean suggested that the system have an inspection. Ms. Bonser noted an inspection on a State approved existing septic system would be irrelevant. Mr. Dean stated that he believes that per the Zoning Ordinances, this would be something the Board should be concerned about. Mr. Smith noted that once the State has
approved the system then it was no longer a concern for the Board. He also explained his extensive experience with installing septic systems, noting he is NH Licensed Septic Installer Number 49.
Mr. Dean again stated his concern for the system since the State approval, and the amount of equipment on the property that may have damaged it. He stated that he would like to have it inspected so to make sure that Mr. Smith, the new owners, abutters, and himself; who is downstream of the property, were not going to have any trouble with it later on. He believes it is the responsibility of the Board to make sure that it is in good working order.
Mr. Colby read from the Town’s Zoning Ordinance that Mr. Dean cited. Mr. Colby noted his discussion with DES and that this was not a new plan therefore this section does not pertain to this case. Mr. Dean believes that everyone would be much happier if it were checked.
Mr. Gylfphe stated that septic systems work in a vertical flow and not a horizontal flow. He noted if a system fails then the flow usually comes up (vertically) and does not run downstream. Mr. Smith again stated that the system has been approved and in (light) use since 1983. Mr. Smith noted he was open to having it inspected if the Board feels it necessary.
Mr. Levenson approached the Board to view the plans. Mr. Levenson is a direct abutter to the new lot. Mr. Reid also reviewed the plans. Mr. Levenson asked about the use for the lot citing that they have been told various things. Mrs. Sears explained that this is for one, new residential buildable lot. Mr. Smith explained that he tried to split the lot and the new house was going to be for his son or daughter, he wasn’t sure. He stated that his construction business has dwindled down and has been trying to return the land to an agricultural property. Mr. Levenson was concerned that it will end up being a large storage area for Mr. Smith’s construction equipment.
Point of Order: Ms. Sears asked the Board if they would like to accept this application before this discussion continued. They did not.
It was noted that as part of the ZBA’s decision that he must stop all commercial operations upon approval of the new lot. Mr. Levenson also explained that there has been large industrial machinery being run on the lot that creates what he believes is noise pollution. He presented a type of graph showing the abutters surrounding the property that have complaints/litigation in regards to this property. He noted that he had concerns that whatever is approved would be honored. He was told that this Board doesn’t have any bearing on past issues or noise complaints. Mr. Smith read his Notice of Decision from the ZBA including all the requirements he must follow after the approval of the subdivision from the Planning Board. Mr. Levenson was told that if those conditions were not honored then he would have to address
the Code Enforcement Administrator or the Board of Selectmen and not this Board. Mr. Levenson stated that Mr. Smith has had little regard for his abutters.
Mr. Reid had concerns about Mr. Smith’s use of the property and attempted to show old photos. Mr. Reid believes that Mr. Smith is operating a junk yard on the property. Chair Smith asked if he has filed a complaint with Code Enforcement or the BOS. Mr. Reid did not reply. He was told that this type of issue was not what a Planning Board handles. Mr. Reid also claimed that the property is a stump dump, junk yard and continued to raise past issue over wetland violations and hours of operation. He was also concerned with the future water quality of the area. Mr. Reid was told that these types of complaints do not fall under the jurisdiction of the Planning Board. Mr. Dean believes that these concerns do fall under the Planning Board because they could be considered as safety/health issues.
Mr. Dean explained that he spent the better part of a day recently researching the facts of this case. He said his two main concerns were for potential water pollution and one of trust and honesty on the part of Mr. Smith. Chair Canney noted that DES has visited this property. Mr. Smith agreed noting that there are no outstanding violations with DES or the Town of Nottingham, on his property.
Chair Canney noted that Mr. Reid could bring his concerns to the Board of Selectmen. Mr. Smith again noted that he has no State violations and he is still in the process for the State subdivision approval. Ms. Mooney asked about the State testing of the soils. Mr. Smith again stated that the State has no violations with his property, and the State and the Town has all those records.
Mr. Smith noted that Mr. Dean stated he reviewed the files but neglected to comment on the fact that any and all violations have been taken care of. He stated that he is tired of going through this with Mr. Reid and others. Mr. Smith again stated that there are no stump dumps or hazardous waste on his property and that the State agreed.
MOTION by Mr. Gylfphe to accept this application for Nelson Smith as written.
SECOND by Mr. Stockus
Mr. Davies asked to review the memo from the Building Inspector. It was noted that they can accept the application without the State subdivision approval.
VOTE 6-Aye. 0- Opposed 0- Abstained MOTION PASSED
Mr. Gylfphe stated that he respectfully requested that Mr. Dean recuse himself from this case. He had concerns with Mr. Dean’s amount of time spent on this case and appearance of bias. Mr. Dean stated he was not against the case but was for it provided that septic system was not going to contaminate and that all parties deal honestly with each other. He stated that he would not recuse himself.
Ms. Bonser noted that she believes that Mr. Dean’s concerns should be made as a resident or as a person who has an interest in the outcome of the case but not as a member of the Board. She stated that if he had a track record of treating all cases in the same passionate way he is handling this one then she would believe other wise. She added that the reason you recuse yourself was for the integrity of the Board. Mr. Dean believes he can act in the same manner than any other person would for the case. Mr. Reid again tried to discuss past issues but Mr. Stockus asked the Chair for a Point of Order noting that his point had been made already and that they were not part of what this Board can consider. Mr. Reid continued to question the Board. Chair Canney noted that this was a simple 2 lot subdivision and that the
purpose of this public hearing was for the Board to get all the information needed for this case.
Mr. Smith again stated he was concerned that Mr. Dean spent a lot of time pulling records put didn’t pull the facts that all the past issues had been rectified. He noted that tonight was for a subdivision and not for issues of the past. He suggested that the Board come to the property to see for themselves. Mr. Dean again explained his research but stuck with only what was relevant for tonight. He stated that he was “much more in your camp that you realize”.
Mr. Stockus stated that he agrees with Mr. Gylfphe in that Mr. Dean has exceeded his authority in this matter. He started to make a motion but Mr. Colby added and read RSA 673:14 for clarity. Mr. Colby also noted that in the past the town counsel has suggested that a board member should recuse themselves whenever there is the slightest appearance of bias.
MOTION by Mr. Stockus request that Mr. Dean be recused from this application, per RSA 673:14.
SECOND by Mr. Gylphe
VOTE 5-Aye. 0- Opposed 1- Abstained MOTION PASSED
Mr. Dean refused to recuse himself. The Board discussed a site walk but no date was set yet. The Board would like to have it after the State subdivision has been completed. Mr. Smith would like to discuss with his counsel if he can forbid some members of the public from going on his property. Mr. Smith will provide copies of all paper work for the past issue for the Board to review. Ms. Mooney suggested that Mr. Landry the surveyor attend the site walk. Mr. Smith agreed.
Mr. Levenson asked if the Board regulates the intended use of the land. Chair Canney noted that they do not, but this was an application for a residential/agricultural 2 lot subdivision. Mr. Smith must follow those regulations but sound pollution is not one of them. Mr. Seaverns noted that one of the reasons for setbacks is for sound. The Town of Nottingham does not have any sound ordinances.
MOTION by Mr. Gylfphe to recess this case until July 15, 2009.
SECOND by Mr. Davies
VOTE 5-Aye. 0- Opposed 0- Abstained MOTION PASSED
Review of the minutes
The Board tabled the minutes.
MOTION by Mr. Davies to adjourn.
SECOND by Mr. Stockus
VOTE 5-Aye. 0- Opposed 0- Abstained MOTION PASSED
Respectfully Submitted,
Lisa L. Sears
Land Use Clerk
These minutes are subject to approval at a regularly scheduled Planning Board meeting at which time the above minutes are corrected or accepted.
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