Town of Sanbornton, NH - Planning Board Minutes Approved 9/20/07

The meeting opened at 7:02 pm with the following members in attendance: Helmut Busack, Chairman; Don Bormes, Vice Chair; Carmine Cioffi, Member; Steve Ober, Selectman’s Representative; Cindy Merchant, Alternate; Mary Earley, Alternate; Evelyn Auger, Alternate; and Bob Ward, Town Planner.

Bob Ward stated that this is a continued Public Hearing and presented the Board members with the motion prepared by Vice Chair Bormes for review. Vice Chair Bormes made a motion to accept the written decision in its entirety, seconded by Carmine Cioffi. Vice Chair Bormes read the motion presented to the Board:

1. The applicants propose to construct an open space subdivision under Section 4(T) of the Sanbornton Zoning Ordinance, at property located on the east side of Route 127, north of Perley Hill Road, consisting of Tax Map #15-64-1, owned by Peter and Christine Thompson, and Tax Map #15-64-2, owned by John and Donna Thompson.

2. There is at present no specific open space subdivision plan before the Planning Board (a prior plan having been withdrawn). Rather, the question before the Board at this time is the preliminary one of what is the total number of lots that will be permitted to be sited on the property. Under Section 4(T) (3) (C) Density Standards, this question requires determining “the density (frontage and acreage requirements) allowed in the underlying Zoning and/or Overlay District for a conventional subdivision.” The applicants have presented to the Board a Conventional Subdivision plan (sometimes called a “yield plan”) showing 15 lots. The applicant’s state they do not desire more than the 15 lots shown on the Conventional Subdivision even though the table in Section 4(T) (3) (C) permits a density “bonus” for utilizing the open space section of the Ordinance.

3. In a previous decision on this issue, the Board determined that the applicant would be allowed 13 lots. That decision was appealed to the Belknap County Superior Court in Docket No. 06-E-076, and resulted in an Order dated December 27, 2006, which is hereby incorporated by reference. The Court found that the previous Board decision was reached as a result of “a compromise – a gentlemanly attempt to settle a contested issue” which was “arbitrary” and “inappropriate under the law” and “circumvent[ed] the board’s responsibility to make a determination on the merits.” The Court said “the record contains insufficient information to support a nexus between the board’s expressed wetlands and steep slopes concerns and the decision to limit the number of lots to thirteen.” The case was thus remanded to the Board for a new decision on this issue.

4. The Court did give the Board some guidance for making its decision, by providing an interpretation of the Ordinance’s density provision: “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 underlying zoning and overlay districts…. For example, if a lot is located in a wetlands district, the board must decide whether the lot is “sufficient in size and configuration to adequately accommodate all required utilities (citing Section 15(E) (2) (f)).”

5. Subsequent to the Court’s Order, the applicants presented the Board with a revised plan dated April 30, 2007, showing proposed locations for both buildings and utilities. In addition the Board received a July 24 letter from applicants’ attorney addressed to the scope of the remand. A July 14, 2007 letter from DMC Surveyors addressed the issues of slopes and the total lot area exclusive of wetlands. The applicants also submitted a previously-prepared road profile and a rough grading plan for the proposed road, attempting to show that no grading would be required beyond the road right-of-way shown on the plan. The Board’s decision below is based on all information received both before and after the Court hearing.

6. A fundamental preliminary question involves the degree of scrutiny the Board should give to the “yield plan.” The applicants argue that since the Conventional Subdivision will never, in fact, be built, there is no requirement to fully engineer that subdivision, and moreover, that there is no requirement of actually securing other types of permits which would be required if the plan were actually to be implemented. (For example, the applicants argue that they are not required to actually apply for or secure a driveway permit from the State DOT for their proposed curb-cuts off of Route 127, nor are they required to actually apply for special exception approval from the Zoning Board of Adjustment for the locations where the roadways on the “yield plan” cross wetland areas, and which therefore are prohibited in the absence of a special exception under Sections 15(E)(2)(g) and 18(B)(6) of the Zoning Ordinance.)

7. The Board agrees with this argument as far as it goes. A fully engineered plan is not required, nor are actual permit applications to other boards or agencies required. Nevertheless, the intent of the Ordinance is that the allowable density be calculated using a conventional subdivision which is actually practicable and capable of being approved and constructed. Therefore the applicants have the burden of persuading the Board of such approvability, and of satisfying any reasonable doubts on the part of the Board as to whether any perceived impediments would in fact be likely to be overcome, if the conventional plan were to move forward.

8. In this case the Board continues to have reasonable doubts about several aspects of this “yield plan”. First is the issue of the steep slope overlay (Ordinance Article 16). Steep slopes are defined as any “area with a dominant slope greater than 15%.” In areas of steep slopes, the required minimum lot size is 6 acres (Section 16(E) (1)), rather than the 1.5 acres which was otherwise required at the time the applicant initially applied.

9. The only steep slope analysis presented by the applicants in this case is contained in the July 24, 2007 letter from DMC Surveyors, which was repeated at the hearing. Only one slope calculation is made on each lot, namely “the total slope of the entire property from front to back….” The Board specifically finds that this method of measuring slope is not consistent with the Ordinance. Under the applicants’ method, an entire lot could hypothetically consist of steep slopes, but those slopes would all be averaged out of existence. What the Ordinance instead requires is that all areas of actual steep slopes must be differentiated from non-steep-slope areas, and the 6-acres-per-lot calculation must be applied to those areas. This the applicants have failed to do.

10. A plan specifically showing the steep slope areas was produced at the Court hearing, but the applicants refused to provide that plan to the Board itself. Nevertheless, based on the contour lines shown on the conventional subdivision plans, there do exist many areas within proposed lots 6, 7, 8 and 9 where the slopes exceed 15% (that is, where more than seven and a half 2-vertical-foot contour lines are shown all within an inch of each other an inch representing 100 feet of horizontal distance on the plan). The applicants have simply not taken those steep slope areas into account in doing their lot size calculations, and have therefore not met their burden of persuading the Board that these rear lots are approvable in accord with the Zoning Ordinance. The Board will give the applicants the benefit of the doubt that Lot 9 could be approvable if combined with some of the other lots, however the Board was not given sufficient information to include lots 6, 7 and 8 in the density calculation.

11. A second area of concern is wetlands. Specifically, Article 15 of the Ordinance prohibits roads or other alterations of terrain in wetlands without a special exception. In the “yield plan,” the loop road crosses an area of wetland, and the proposed dead-end road with the cul-de-sac crosses four wetland areas. Therefore, in accord with paragraph 7 above, the applicants have the burden of persuading the Planning Board that special exceptions under Section 18(B)(6) of the Ordinance are likely to be granted. A primary requirement for such an exception is that the roadways must be located and constructed so “as to minimize any detrimental impact of such uses upon the wetland.”

12. The applicants gave a brief presentation on this issue on August 16, which consisted of a statement that these wetlands are not designated “prime” wetlands, and a bald, conclusory statement that the proposed locations of the crossings would “minimize” any impacts. No evidence was presented about what the specific natural values and functions are served by these particular wetlands, about the specific impacts of the proposed roadways, or about what would be done to preserve those values and functions, in light of the purposes of the wetlands provisions, as found in Section 15(B)(1) through (9).

13. The applicants’ statement that the wetlands are not designated “prime” wetlands is true, but irrelevant. The special exception requirement applies to non-prime wetlands as well. (“Prime” wetlands are subject to differing restrictions under Section 15(E)(1)). The Board will give the applicants the benefit of the doubt that they would be likely to receive a special exception for the wetland crossing shown on their proposed loop road. However the crossings shown on the dead-end road are all in areas where wetlands are separated by areas of quite steep terrain. The applicant’s own road profile (“Conventional Subdivision Road Layout” dated 12/29/05) shows very extensive areas of cut and fill in conjunction with all of the crossings on the dead-end section, and the slopes in those areas would mandate quite extensive soil and/or ledge removal. In light of these facts, and the lack of any specificity in the applicants’ assertions of “minimization,” the Board finds that the applicants have failed to carry their burden of persuasion that they are more likely than not to receive a special exception for these locations. Given that proposed lots 6, 7 and 8 require access via these crossings, the Board cannot include those lots in the applicants’ density calculations thus bolstering our conclusion contained in the above analysis of the steep slope issue.

14. An additional concern about the dead-end road is its length. The Town’s Subdivision Regulations do not permit a dead-end road over 1000 feet in length. The applicants clearly acknowledge the need to comply with this requirement, since that is the entire reason why they have proposed a loop road for the portion of their “yield plan” located near Route 127. However in the case of the proposed dead-end road, the cul-de-sac turnaround at the end takes the road roughly 60-70 feet beyond the 1000-foot maximum. The Board specifically finds that the 1000-foot maximum is intended to include the area occupied by the cul-de-sac, and that the plan thus does not comply with this regulation. Lots 6, 7 and 8 depend on the proposed location of the cul-de-sac to meet the frontage requirements. The Board will assume that at least one of these lots could still meet frontage requirements with a proper length road, however applicants have not carried their burden with respect to the remaining two of these lots. This, therefore, is an additional reason not to include those two lots in the density calculation, independent of the wetlands and steep slope concerns expressed above.

15. A further concern raised by the Board and the Town Planner at the hearings on June 21 and August 16 is stormwater management for the Conventional Subdivision. The applicants’ representatives acknowledged that they would be required to prevent flowages from increasing across Route 127, and stated that this would be accomplished through construction of a stormwater retention pond. However no such facility is shown on the “yield plan.” Such a pond would likely have to be constructed on proposed lot #15, which is the closest to the highway, but which has significant wetlands concerns. The Board finds that the applicants have failed to carry their burden of showing that this lot is adequate to accommodate a stormwater treatment facility, in addition to a residence, sewage system and well. Therefore the Board cannot include that lot in its density calculation. (The same concern would be even more acute were the pond to be proposed on lots 13 or 14, since they are even smaller).

16. Last, but by no means least, there is the Board’s concern about the second access point onto Route 127. The Board has been given a copy of a letter dated February 24, 2006, from Robert A. Eaton, of the N.H. Dept. of Transportation, addressed to Mr. Roger Roy, P.E. of MJS Engineering. The letter states, in part “…I felt I should write to inform you that current site constraints are road geometry, cuts, fills, stonewalls, abutting land, etc., that may prevent any subdivision….There is currently a problem with sight distance in both directions. Reconstruction of Route 127 (at the developer’s expense) would be required, if at all possible, due to site conditions and right-of-way limitations. No second drive would be allowed if sight distance criteria cannot be met.” In addition to this letter, at the hearings the abutter to the south, Mr. Jim O’Neill, expressed strong concerns about whether the proposed southerly access which, in order to accommodate the proposed number of lots, is sited right against the southerly boundary of the parcel could be built without altering terrain on his property as well, given the sloped terrain. The concerns of the DOT and of Mr. O’Neill are bolstered by the Board members’ own observations and familiarity with the proposed location.

17. The response of the applicants and their engineer to this issue is to argue that any such problem can theoretically be overcome “if you throw enough money at it” and to argue that the amount of such expense cannot be considered by the Board, because, after all, the “yield plan” is not actually going to be constructed. They also point out that their road profile plan (referred to above) shows that no excavation will be required on the neighbor’s property.

18. Even assuming (without specifically finding) that Mr. O’Neill’s property can be avoided, these arguments fail to adequately address the concerns raised by the DOT letter. The letter does not merely state that the developer will be required to pay to overcome site constraints, but also states that such constraints “may prevent any subdivision,” and the reconstruction would be require “if at all possible” implying that it may not be possible. The applicant’s engineer has presented so little specific information, that he is in essence saying “trust me” in representing that, in his view, the DOT concerns could be overcome with enough money. The Board finds that this response is not adequate to carry the applicants’ burden on this point.

19. The question remains of how the Board should treat this failure, in making the density calculation. If the applicants were unable to construct two entrances to Route 127, the Town’s 1000-foot maximum for a dead-end road would preclude most of the proposed rear lots (#5, 6, 7, 8 and 9 three of which have already been found deficient above for other reasons), leaving at most 10 lots. In the alternative, it is possible that the DOT would allow the second entrance if relocated further to the north, but such a move would clearly impact the lot sizes of lots 12, 13, 14 and 15. Since at least lots 12, 13 and 14 are already at a bare minimum of lot size, they would have to be combined (or, to put it more exactly, the applicants have failed to carry their burden of persuading the Board that this plan could be implemented without combining them). Thus, under either alternative, the Board concludes that the maximum number of lots must be reduced by at least two due to the unresolved uncertainties about the proposed southerly access road.

20. In summary, the Board will not count lots 6, 7 and 8, due to both unresolved wetland and steep slope issues, and in addition because it is unclear whether more than one of these lots would have proper frontage if the dead-end road were the proper length. The Board will treat lots 12 and 13 as likely having to be combined due to the need to relocate the southerly access road (if indeed it can be built at all), and will also treat lots 14 and 15 as having to be combined, both for that same reason, and also because of the unresolved question of where a stormwater retention pond might be located. That leaves a total of 10 lots out of the proposed 15.

21. The table under Section 4(T)(3)(C) of the Ordinance then calls for us to add one more lot (an additional 10%) as a “bonus” for the utilization of the open space subdivision provision. It is true that the applicants themselves claim that they do not need the “bonus” to reach their desired goal of 15; however it is clear they are entitled to it, as a means of bringing them closer to that goal than the number otherwise found by the Board as having been satisfactorily demonstrated by their “yield plan.” We therefore find that this “yield plan” supports a maximum number of eleven lots.

It was moved by Bormes, seconded by Carmine Cioffi, to respond to the Superior Court’s remand by finding that the applicants’ proposed “yield plan” has satisfactorily established a right to an open space subdivision density of eleven lots for this property. This decision is without prejudice to the applicants, if they wish, to submit to the Board in the future a materially different “yield plan” which satisfactorily addresses the unresolved concerns described in this decision.

Bob Ward summarized that all of the items which were requested at the previous Public Hearing have been provided by the applicant with the exception of the granite bounds being indicated on the symbol legend. These items included labeling the wetlands and buffers, showing proposed driveway locations as well as providing a written document from the Highway Department stating feasibility, showing a table detailing wetlands and soil summaries for each lot, DES subdivision approval and designating the land area to be covered by the conservation easement.

Bryan Bailey, representing the applicants, indicated each item on the proposed plans. Chair Busack opened the hearing to comment from the public. Being that there was no public comment Chair Busack opened the hearing to comment from the Board. Bob Ward stated that the Board still needs to determine if the land area to be covered by the conservation easement is acceptable along with the terms of the easement. Bryan Bailey stated that the terms of the easement are included as a notation on the plan. Vice Chair Bormes made a motion to conditionally approve the subdivision, seconded by Steve Ober. All in favor, motion passed. Conditions of approval are indicating granite bounds and providing a written Conservation easement.

Bob Ward stated that there was an error in the information provided by the applicants concerning the Tax Map Lot Number, which should be Lot 12, not Lot 20. Elizabeth Gammon stated that they had hired Paul Darvoshire who indicated to her that a lot of the land is wetland and it is questionable if there is enough dry land for building sites. The current survey only shows 2.96 acres per lot of dry land. Mrs. Gammon stated that the site has been cleared since the survey was done and she feels fairly confident that further study will show adequate dry land. Bob Ward stated that he has concerns whether the last 800’ to 1,000’ of the Road is a Class VI road as it is unclear on the maps. He further stated that the wetlands need to be delineated by a certified wetlands scientist in order to calculate lot size. Mr. Ward further stated that the road frontage of 220’ must be satisfied on the Class V portion of the road. The applicants will address these issues with wetlands and road frontage with their engineer.

Bob Ward stated that this lot is part of a previous subdivision and has an existing easement located on it. Chair Busack stated that Bob Ward should check which lots are connected with the existing easement. There was discussion concerning the location of proposed driveways and road frontage as the existing easement will be a factor in access. Carmine Cioffi suggested that Mr. Brady meet with the Town Planner to go over requirements pertaining to driveways and locations of wells and septic systems.

Bob Ward stated that the first meeting of the MPAC committee was held on September 11^th. He provided the Planning Board with an up-date on the proceedings of that meeting and stated that all materials which are given to the Committee will also be provided to the Planning Board along with minutes of the meetings.

Bob Ward stated that he had been contacted regarding Lakes Region Day Care purchasing an existing Child Day Care Facility, Seeds of Promise, on Gulf Road. The existing Child Day Care Facility had received a site plan review and approval in 1998. He further stated that he had received a letter from Lakes Region Day Care stating that there will be no changes to the foot print of the building and no changes in the number of students attending and that the existing single family residence will be rented. Chair Busack stated that this needs to be looked into further because this is facility was originally approved as a “Home Occupation”. Bob Ward stated that Child Day Care Facilities are allowed in all zones. Evelyn Auger stated that this is only with home occupations and that the rental of the existing home makes it a business. Bob Ward stated that he will look into this further to determine the permitted uses in this zone and will send a letter to Lakes Region Child Day Care Agency immediately.