Town of Sanbornton, NH - Planning Board Minutes Draft 6/21/07

Bob Ward stated that an interview for a candidate for possible nomination by the Planning Board as representative to the Lakes Region Planning Commission was scheduled for later in the evening. The interview will be with Ralph Carter who has expressed his interest in this appointment. Mr. Ward also stated that he had received a letter expressing similar interest from Bill Whalen. Mr. Whalen was not able to attend the meeting to be interviewed but wishes to schedule something for a later date.

Bob Ward stated that the Town Administrator had placed an advertisement in the Daily Sun requesting volunteers for this position. Dick Gardner asked who has the appointing power in this instance. Bob Ward stated that candidates have to be nominated by the Planning Board and that the Board of Selectmen has the final power to appoint from the pool of candidates nominated by the Planning Board. Dick Gardner stated that he feels the interview with the Planning Board is an unnecessary hurdle for individuals that are known to the Board. Bob Ward stated that this process needs to be consistent and not show what may be interpreted as favoritism. The ad in the newspaper could bring forward several more candidates. Each one will need to be interviewed to remain fair and consistent. Evelyn Auger suggested having a pre-selected set of questions to be asked of each individual. Steve Ober stated that he felt this was a good idea. Bob ward will prepare a lost of questions for interviewing purposes.

Bob Ward stated that the process of digitizing the Master Plan is in its final stages and is expected to be available on the Town’s website by July 1^st. This format will be very helpful with future revisions. Mr. Ward asked the Board how soon they would like to formally initiate the process of revising the current Master Plan. He further stated that he will request the Town Administrator to place an advertisement in the paper asking for volunteers to serve on the committee. A notice to the pertinent Boards and Committees also needs to be sent out asking for appointment of a member to serve on the Master Plan Committee. Bob Ward also suggested that the members of the Planning Board think of private and civic organizations which may be helpful to this process and to have a list of them available for the July meeting.

Bob Ward stated that this is a 3-Lot subdivision located on 355 Stage Road (NH Route 132) on Tax Map 9, Lot 23 with 12.79 total acreage. Mr. Ward stated that everything on the application is in order, and appears to be complete, and that the applicant will be seeking a couple of waivers. This application has been in process for quite some time as there were numerous extensions requested by the applicant which were granted while the applicant obtained a wetlands crossing permit for driveway access.

Les Mills of Granite State Surveying stated that there are three proposed lots for this subdivision. This land contains an existing barn and house and the remainder is forested or wetlands. The first lot, Lot 23, contains the existing home and will be approximately 4.0 acres. The second lot, Lot 23-1, will contain the existing barn and will contain approximately 3.86 acres. The third lot, Lot 23-2, will contain approximately 4.93 acres. The area is zoned General Agricultural which requires a minimum lot size of 3 acres with 220 feet of road frontage. The plan presented exceeds these requirements and contains setbacks for prime wetland buffers. The applicant is proposing to use an existing driveway for a common driveway serving 2 lots. The only “curb cut” would be for one new driveway and permits have already been obtained from NH DES for a wetlands crossing and from NH DOT for a driveway. Test pits and perc tests have been done and the septic systems for Lots 23-1 and 23-2 have been approved by the NH DES.

Bob Ward stated that he has concerns about the minimum buildable lot size for the wetlands overlay zone. This requires a 50% minimum buildable area. Lot 23-1 with proposed lot size of 3.86 acres would require 1.93 acres to be buildable, the synopsis shows this buildable area to only be 1.12 acres leaving it .8 acres short. Lot 23 requires 2.0 acres to be buildable, it only shows 1.35 acres which is .65 acres short. Lot 23-2 with proposed lot size of 4.93 acres would require 2.47 acres to be buildable, shown is only 0.56 acres which are buildable, that is short by almost 2 acres. The second concern is the requirements for conservation land. This subdivision is over 10 acres and is required to have 5% set aside for conservation. This is not shown on the plan. Les Mills stated that he has looked for the Towns definition of “buildable area” in the Town Zoning Ordinance and in the Subdivision regulations and has found none. If the entire lot is taken into consideration when figuring the buildable area then all of the lots are in compliance with the regulations. Lot 23 contains 1.56 acres which are not wetlands, Lot 23-1 contains 1.73 and Lot 23-2 contains 1.87.

Chair Bormes opened the Public Hearing to abutter’s questions and comments. The abutters present stated that they saw no issues with this request. DES has OK’d the wetlands crossing and the Town Ordinances have been adhered to correctly. As there were no more questions or comments from abutters, Chair Bormes closed the hearing to public comment and opened it for comments from the Board. Cindy Merchant asked where the 5% set aside for conservation would be located. Bob Ward explained that the conservation set aside requirement could be filled in three different ways, (1) create a separate parcel, (2) overlay over two or more parcels and (3) any other options agreed upon. Evelyn Auger stated that strips along the sides of the stream would be perfect to fill this requirement. Mr. Mills stated that he would propose and document the easement for the Board’s review.

Bob Ward stated that the applicant is seeking a waiver for topographical mapping east of the wetlands boundary. Mr. Ward also stated that the subdivision plan submitted shows one corner lot bound marked with an iron pin. The Town’s subdivision regulations require these to be marked with granite bounds. Lee Mills asked what the Town’s policy is if these bounds fall within a stone wall. Bob Ward stated that, if at all possible, the bounds need to be granite but if they fall within a stone wall, drill holes with iron pins can be used. He further stated that the conservation covenants need to be presented and also need to appear on the final plat.

Mr. McDonald, representing the applicant, stated that this proposed subdivision is on Town sewer and does not require a septic design. Chair Bormes opened the Public hearing to abutters for questions and comments, there were no abutters present. Chair Bormes closed the Hearing to public comment and opened it to comment from the Board. Dick Gardner stated that the lots are oversized for the zone and he sees no issues. Carmine Cioffi stated that all the requirements have been met and the he also sees no issues. Bob Ward pointed out that in the notes section of the plan the minimum lot size needs to be changed to 2 acres for it to be correct on the final plat.

which is at the “yield plan” stage and has been remanded back to the Planning Board by the Superior Court in order to make a determination not based on compromise but to base the review of the yield plan on the Subdivision Regulations and the Zoning Ordinance for the Town of Sanbornton. There is no need to determine the completeness of the application as this is a continuation. Notice was provided to abutters and all have responded. No additional fees were required so at this point it is a matter of reviewing the plan on its merits.

Bob Ward stated that he had received a set of plans on May 1^st from the applicant. These are basically the same plans as previously submitted and considered. The proposal is still for 15 lots in a conventional subdivision “yield plan”. The configuration of lots has not changed and neither has the configuration of the road. The only thing that has been added is that the proposed house site on each lot is shown. Also, the actual location of the proposed leach field has changed for lots 1,6,12 and 13. Based on review using the Town’s Subdivision Regulations and Zoning Ordinance, all of the errors, omissions or shortcomings of the plan have been highlighted in orange on the proposed plan.

There is a question about vesting on what applies in terms of minimum zoning requirements. There has been a zoning change in this zone, General Residential. At Town Meeting 2006 the minimum lot size was increased from 1.5 acres to 2.0 acres and the minimum road frontage, either on a State highway or Class V Town road, changed from 175 feet to 200 feet. Most of the lots on this yield plan are under the current minimum 2.0 acre requirement which went into effect in March of 2006. Dick Gardner stated that he did not understand the reason that a 2 acre lot would be an issue. Bob Ward stated that this was indicated for reference and vesting purposes only and feels that unless told otherwise, the 1.5 acre minimum stands.

Bob Ward stated that this entire “yield plan” is based around a road plan that has a fatal flaw based on a letter submitted by NH DOT’s supervisor for access permitting in Region II. A letter was provided from Mr. Roger Eaton of NH DOT to the applicant’s engineer at MJS Engineering and indicated that there are “current site constraints pertaining to road geometry, cuts, fills, stone walls, abutting lands etc. that may prevent any subdivision”. These statements refer to the access for the southerly road coming out onto Route 127. The letter further states that “there is currently a problem with sight distance in both directions” and that (reconstruction of Route 127 (at the developers expense) would be required, if at all possible”. “No second drive would be allowed if sight distance criteria cannot be met”. Mr. Ward stated that the impact of this letter is that under the current physical conditions the access point does not meet State requirements and standards and would not be permitted. Based on that, it appears that as proposed, this scheme for a double access loop road is not feasible.

Bob Ward stated that based on the guidance provided by Judge Smukler, this “yield plan” needs to be reviewed not in an arbitrary way and not in compromise but a determination by the Planning Board must be made on its merits. Judge Smuckler provided the following guidance: “Sanbornton’s Zoning Ordinance provides that the maximum number of permitted lots shall be determined by density (frontage and acreage requirements allowed in the underlying zoning and/or overlay district for a conventional subdivision). The clear meaning of this Zoning Ordinance requires the Board to decide whether the proposed number of lots could fit on a conventional subdivision plan, taking into consideration the underlying zoning and overlying districts.” Mr. Ward stated that based on the letter from DOT this road plan is not feasible and asked the Board if they would decide, by consensus, if this road layout would be acceptable. If the Board were to determine that the letter is sufficient to find the road layout unacceptable this would become a one entrance development scheme. The 1000 foot dead-end road limit would then become an issue as this would change the entire yield plan. The Board will need to make a decision on the road plan. Is it acceptable, real and buildable on its merits or is it not?

Bob Ward stated that there are other issues such as plan requirements and abutter issues such as incorrect abutters listed, a property which was omitted and abutter ownership inconsistencies. There is also an issue with a house site encroaching into the 30 foot road setback requirements for lot 1. These are secondary but important issues if the Board determines that the road plan is acceptable. Mr. Ward stated that in final analysis, the Board would be prudent in looking at other plans or studies which it may require in reviewing this plan. These should include a grading and drainage plan to see if a road is feasible and what its impact would be. There also needs to be plans for storm water management and erosion control. The starting point is, however, whether or not this road plan is, in fact, a two entrance or a one entrance road plan.

Dick Gardner stated that the Judge’s order indicates that the applicant may submit further information in supportive theory of this “yield plan”. Chair Bormes asked Mr. Thompson and Attorney Philpot to join the discussion at this time. Attorney Philpot indicated some points-of-order on previous protocol with the Board. He stated that in past hearings, Chair Bormes had recused himself and therefore he is requesting that Chair Bormes continues that recusal. Chair Bormes stated that he had previously recused himself because there was a possibility of court action and felt that in order to maintain the integrity of the Board he should step down. He further stated that at this time he feels he can sit on the Board and judge the case on its merits. He stated that he will leave the question of his recusal to the Board and follow its decision. Steve Ober stated that he did not understand what the reason for recusal was in the past. Mr. Thompson responded that Chair Bormes did not state any reason for recusal, he just recused himself. Attorney Philpot stated that he remembers Chair Bormes reason being some sort of a personal conflict with Mr. Thompson. Dick Gardner asked if this was a legal issue, if once recused is the individual always recused? Attorney Philpot responded that was not the case but if Chair Bormes has a valid reason then he should state it. Attorney Waugh asked if Chair Bormes ever stated that he was disqualified? Chair Bormes stated that he had not, he only stepped down to maintain the integrity of the Board at that time. He further stated that any issues were resolved by the courts and feels he can be a fair judge of the merits of this case at this time. It was decided by the Board that Chair Bormes would retain his seat on the Board for this hearing.

Attorney Philpot reminded the Board that the road issue was not part of the reason why the Board made the finding that went on appeal. He further stated that the minutes of that meeting reflect that there was considerable discussion about the DOT letter. The letter was not a result of submitting a formal application. There was a request by the Board to touch base with NH DOT which generated the letter. There was discussion in the minutes regarding sight distance and how that could be addressed with cuts and fills. The Board did not take up that issue in its decision. Furthermore, the court’s order deals with the Subdivision Regulations and the Zoning Ordinance. This is a DOT situation and is purely theoretical. This is just a “yield plan” to come before the final product which will remain limited to 15 lots. He further stated that the road issue is not an appropriate objection for denial. Yield plans do not require DOT approval, this will be dealt with on the actual plan for subdivision.

Attorney Philpot stated they are just trying to get to the next stage and believe that this “yield plan”, as presented, achieves that and proves that the 15 lots can be done. This is not a request to the Board to be locked into 15 lots. Chair Bormes stated that it is the applicant’s task to prove to the Board that this is a “doable” project as is. If a road can not go there then it is not doable. Evelyn Auger stated that she does not want to see tons of money going into the planning of a project but into the actual doing of that project. It does need to be proven that they can get 15 lots but it shouldn’t require having to invest in an engineering design to prove it.

Attorney Waugh asked if the plan that was available in court showing the steep slopes was available, as this had not been previously submitted to the Board. Dean Clark of DMC Surveyors stated that this was not indicated on the present plan which was made available to the Board. Attorney Waugh then asked if the lots comply with the overlay districts of Steep Slopes and Wetlands. Have calculations been done as to what percentage of the proposed lots are wetlands or steep slopes so that the Board can see what lots are buildable? Attorney Philpot suggested having the engineer meet with the Town Planner so they could identify what materials in the existing file would be helpful to the Board. Chair Bormes stated that Judge Smuckler said that a “yield plan” has to be doable and suggested trying the road a different way. Attorney Philpot stated that their position hasn’t changed. He further stated that the DOT letter is not a denial of two curb cuts onto the State road. It is a “snapshot” based upon the Board”s request that the State look at it from a theoretical standpoint. Attorney Philpot then stated that, for the record, they would not be filing a theoretical application for this with the State. The State does not work on theoretical applications. Also, no applications for theoretical wetlands crossings would be submitted for the same reasons.

Attorney Stanley Robinson, representing Stuart Dyment, stated that this is the same argument that was in Superior Court. Judge Smuckler wants a “yield plan” that would be acceptable as a subdivision plan. The Judge’s decision requires a full blown plan on the road, not a conceptual, as it needs to be doable. The purpose of a cluster development is to make more open space. This plan is the total opposite. The Superior Court will never approve a decision based on a theoretical subdivision plan.

Attorney Philpot requested a rebuttal to Mr. O’Neills comments pertaining to a property encroachment. Mike Severt responded for Attorney Philpot stating that retaining walls could be used to keep the road on the property without encroaching onto other properties. Chair Bormes stated that he has seen the properties in question and does not see how this would work and given the property layout and also stated that easements for water runoff onto abutter’s properties would need to be obtained also. Attorney Philpot requested a rebuttal to Chair Bormes comment and deferred to Mike Severt for response. Mr. Severt stated that regulation requirements to detain drainage would remain on the property with the use of swales and retention basins with a zero net increase. Retaining walls could be used so as to not cut into the abutting properties. This would also help to achieve the sight distance requirements referred to in the DOT letter. Chair Bormes closed the hearing to public input and opened Board discussion.

Bob Ward stated that the only pro of a proposed, hypothetical street which is internal to the development plan. View and center line profiles for that hypothetical road are present but there are no grading or drainage plans for it. Attorney Waugh again suggested having an engineer and the Town Planner go through the files to see what is present and what needs to be duplicated to make sure that everything is available that the applicant wants considered. Chair Bormes stated that a permit is needed for the road cut or maybe a new plan should be submitted. Dick Gardner stated that is a topic for discussion among the Board and needs to be voted on. Evelyn Auger stated that the letter from DOT says “current conditions” and therefore this is not a refusal. Peter Dascoulias stated that this is doable, it is where it is located that is the question. He believes that what the Chair is saying is that more information needs to be provided, perhaps an engineering study instead of a DOT permit. This all goes back to the fact that a “yield plan” needs to prove that a certain number of conventional lots are doable. Dick Gardner stated that he believes that the judge meant that the Board has to make discretionary decisions. The judge did not question the decision, only the process of making it. Carmine Cioffi stated that the burden of proof lies with the applicant, not the Board. Attorney Waugh recommended that a member of the Board write a proposal based on the full merits for discussion. He stated that the next step is to obtain the remaining information and to then write a motion with his assistance to present. Dick Gardner made a motion to close the public hearing, seconded by Steve Ober. All in favor, motion passed. Public Hearing closed at 9:47 pm. It was announced by Chair Bormes that this public hearing is continued until August 16, 2007. Any additional information needs to be submitted by July 31, 2007 as per the Planning Board policy.

Dick Gardner asked Ralph Carter how long he has been active with the Lakes Region Planning Commission. Mr. Carter stated that he has been involved with the LRPC for 10 years and is interested in continuing now at this level. Dick Gardner stated that he feels that Mr. Carter would be a good representative for the Town of Sanbornton. Carmine Cioffi agreed. Mr. Carter stated that he would be willing to attend periodic Planning Board workshops to update the Board. Dick Gardner made a motion to nominate Ralph Carter to the Board of Selectmen as a representative for the Lakes Region Planning Commission, seconded by Cindy Merchant. All in favor, motion passed.