Town of Fitzwilliam, NH - Planning Board Minutes 09/21/04

7:00 p.m. Meet with the Conservation Commission and Eric Twarog from the Southwest Region Planning Commission to discuss the Conservation Commission’s proposed Conservation Overlay District/Ordinance and alternatives – Eric Twarog of the Southwest Region Planning Commission was unable to attend this evening but he did mail a copy of all correspondence with the Conservation Commission and Paul Sanderson, a staff attorney at the Local Government Center regarding this proposed conservation overlay district ordinance. Conservation Commission members present this evening were Charles Roth and Carmen Yon.

Mr. Yon updated the Board on their meting last week with Eric Twarog where they reviewed the comments provided by Attorney Sanderson of the Local Government Center. Basically, this proposed ordinance is going to be difficult to put together legally. Mr. Yon noted that Eric has suggested an Open Space Residential Development Ordinance which would replace the existing Cluster Development Ordinance, and the one main thing that this ordinance would do is put the unused land in a proposal, into a conservancy of some sort, permanently, and once this is done it could not be realigned in any way. This ordinance would also provide some buffers, as well as some bonuses for developers, such as: setting aside more than the minimum acreage could increase the number of lots allowed in the subdivision. Mr. Yon noted that the land to be set aside cannot be wetlands, steep slopes, etc. Mr. Yon added that the Planning Board could impose this on any subdivision they choose to. Additionally, the question has been asked if they should impose something like this on only the areas that the Commission was looking at, or all of the rural area in town.

Chairman Silverman asked if this is an ordinance that they would propose to a developer or if a developer would come to the Board with this. Mr. Roth said that they had some questions about this too and they were hoping to be able to talk with Eric about this tonight. Mr. Roth added that Eric would like for the Planning Board and the Conservation Commission to have a joint meeting and then explained that much that the Commission wants to do could be done in a steep slope ordinance or a water ordinance; the wildlife corridors and that sort of thing. Mr. Roth continued and said that where a lot of the problems came from was with things like putting a house on the property, the keeping of lawns and that sort of thing. Mr. Roth said that Eric suggested that they could start with having an increased ordinance in this zone, although Eric kept wanting to do this for the whole town. Mr. Roth said that they told Eric that the Conservation Commission is open to hearing about it; an ordinance called a Subdivision Cluster Zoning Ordinance, but it has to be implemented by the Planning Board. Mr. Roth noted that the Conservation Commission could implement the Conservation Overlay District, and Eric wants the two Boards to bring something together before he drafts up an ordinance. Mr. Roth said that it occurs to him that they could go ahead and do this as something is better than nothing, but the need to educate people on why they want this is still there. Mr. Roth suggested that important issues that would not be in the ordinance could still be recommended by the Conservation Commission; for example, lots be kept small to not add leaching chemicals into the watershed, and that use of ATV’s and snowmobiles be limited to ones’ own vehicles on ones’ own property and not encourage others to bring their vehicles there. Mr. Roth said that he understands that these things are not enforceable, but by letting the public know what the Conservation Commission recommends, it gives them some rational for these recommendations.

Carlotta said that she thought that perhaps if they mention this then some developers may add these types of things as covenants in their proposals. Mr. Yon noted to answer Chairman Silverman’s question, that if they look at page 3 of the Bennington Open Space Residential Development Ordinance, it outlines how use of this ordinance would be triggered and that the Planning Board could look at a subdivision and require this if need be; it is the Planning Board’s decision. Items that would trigger this include agricultural land, endangered species, frontage on any surface water body and unique natural, cultural, and/or historical features. Carlotta noted that while working on the Master Plan revision Eric had mentioned this type of ordinance to them but the Board does not know a lot about how these work in other towns and there is a fear that this may allow more lots of a greater density of housing that the current subdivision regulations. Mr. Yon said that it utilizes the same procedure as they use now for the Cluster Development Ordinance where they lay out a maximum number of lots, depth, review wetlands, setbacks, etc., This type of ordinance would allow the developer to increase the number of lots, 25% for example, if they set aside more land as open space, give them a credit so to speak. Carlotta said that the Town of Rindge has something similar to this. Mr. Yon added that no more than half of the open space land can be wetlands.

Mr. Roth said that this is the point that Eric is at; he would like to see a joint meeting between the Boards and know that this is the right thing to do for the town, and Mr. Roth noted that the full Commission will hear about all of this at their meeting next week. Mr. Roth said that he would like to see something done for Town Meeting and he hopes that the Planning Board will look at this and schedule a time for the two committees to get together. Mr. Yon asked for a lean towards or against this from each member.

Chairman Silverman said that he is suspicious of the way cluster development ordinances are being used in this area noting open land in the back which you never see, and ending up with clusters like you see in Jaffrey, although theoretically, they protect the back land, and something appears as a subdivision someplace else and it seems more suburban than rural. Chairman Silverman added that the Planning Commission pushes the cluster development noting that they had put language to this effect in the Master Plan in numerous places and the Board removed it. Chairman Silverman said that the town uses its road frontage now and in some respects this protects more land than an ordinance like this would. Chairman Silverman concluded by saying that he thinks that they would be under a lot of pressure.

Robin said that she feels that there is less opportunity to discourage developers and she is not really in favor of cluster development, she is a conservationist herself and although she doesn’t like seeing a house every few acres down the road, she thinks that they will continue to get this, plus subdivisions. Robin asked why they do not consider going for larger lot sizes for building or a steep slope ordinance noting that there is not much left that is buildable on steep slopes. Another question that Robin has is if the Commission has approached people with a lot of land or if they have asked the Monadnock Conservancy for some assistance with this because people may be willing to put their land into a conservancy if they are approached properly. Another area for discussion is that this is big project that may not be ready to go before Town Meeting. Chairman Silverman stated that they are really looking at the next Annual Town Meeting after this one coming up and noted that the Wireless Communications Ordinance and the Excavation Regulations took a very long time to put together. Chairman Silverman added that the Planning Board would be happy to work with them on this and they would like to see Eric bring them a worse case scenario proposal so that they can see it on paper, because cluster development restrictions and deed restrictions on paper sound very good, but when you get a developer maximizing on his development you get something completely different than what you envisioned.

The ordinance that the Conservation Commission drafted was briefly discussed and Mr. Yon stated that people felt that it was too close to a taking to which Chairman Silverman agreed. Mr. Roth said that he is not thrilled about the cluster development zoning either noting that that he feels that there would be a lot of resistance, therefore he questioned if they should approach this in certain areas. Mr. Roth then told the Board that they could certainly try to get some of this to the Monadnock Conservancy and then added that this does not come easy and many of the people that they have contacted do not respond to them and that is frustrating. Mr. Roth added that they are trying to protect waterways, wildlife corridors and scenic areas, and reduce the number of houses going in by not allowing building on all of the land, and he doesn’t think that it seems like a taking when they say that building can be allowed within certain guidelines. Carlotta said that she feels that they definitely need to do something and she knows that Rindge has passed their Growth Management Ordinance which limits the number of building permits that would be issued within a year, and she suspects that Fitzwilliam is going to feel the effect of that. Carlotta added that she knows that the Conservation Commission’s goal is to protect open space and other things, and one of the ways to do that is to slow down the growth however they can. Carlotta had suggested looking at a Phased Development Ordinance which would allow them if approached by a big developer to provide a certain number of houses per year, for example 4 house per year rather than 24 houses all at once, which would allow the impacts to the town to be more gradual. Carlotta added that she does not know if the town could do a Growth Management Ordinance. Mr. Yon said that he understands what is being said about growth rate noting that that is an infrastructure issue which they are not trying to address. Mr. Yon suggested that the Planning Board members read through all of the information and ask themselves if something like this would improve on our current ordinance because it may be better than what we have. Chairman Silverman noted that the ordinance they have doesn’t give the developer much incentive to use it and they do not gain anything in terms of the number of units.

Selectman Clukey said that he agrees with expanding the size of a lot and noted that it is probably the easiest way to do something, and then explained that most people would probably only utilize 1 acre or so of their property and probably would support it. Robin added that she supports everything that they are talking about. Selectman Clukey mentioned road conditions in certain areas and subdivisions coming in. Carlotta added that she does think that should all meet with Eric and perhaps he could assist them by explaining options and what has worked for other towns as well as what has not worked, and she then asked Selectman Clukey if anything could be done in terms of tax incentives for putting land into conservation. Selectman Clukey noted that there is Current Use and Chairman Silverman asked if there were additional savings for conservation land. Carlotta questioned if the Conservation Commission had a fund that could help subsidize the cost of putting land into Current Use. Mr. Yon said that they do have funds and if someone puts land into conservancy there could be a tax write off. Carlotta suggested that perhaps they could consider holding a seminar for anyone with land in current use or a landowner that owns more than 10 acres, and sending out invitations and offer refreshments, to educate people.

Mr. Roth told the Board that the Conservation Commission cannot reach these goals alone and neither can the Planning Board or the Board of Selectmen, but if they all stick together they may be able to do something and achieve this, perhaps as a common goal. Mr. Roth added that if the Town of Rindge is doing something to slow it down it is going to send it to us or other towns, and he spoke of the other towns needing to stick together as well with these sort of tools. Carlotta noted that the Planning Commissions are supposed to help towns achieve this. She added that in the past five years Rindge has adopted a Phased Development Ordinance, Impact Fees and Growth Management Control and they are putting the brakes on this.

Mr. Yon told the Board that they would schedule another meeting with the Planning Board at a later time and he asked them to review this information that they have received. Chairman Silverman asked them to see if they could obtain a sample subdivision from Eric so that the Planning Board can see if they can try to modify it using these rules. The Board needs to understand what power it has and what enforcement it has. There was some discussion about enforcement on different levels and it was noted that you need to have ordinances in place to enforce. Also discussed was the fact that enforcement is not always easy and in some cases it involves a lot of time and money. Additionally it can mean bringing in attorneys and dealing with legal technicalities. It was mutually agreed that enforcement is important, people need to comply, and there needs to be money in the budgetary system to enforce properly.

7:30 p.m. Continued Public Hearing for Mace and Mary Ann Wenniger’s proposed 3-lot subdivision of land located on Rhododendron Road, Tax Map 13; Lot 05 in the Rural District – There was no one present for this continued public hearing. Margo provided the Board with a recap of the latest information she had regarding this application and Chairman Silverman asked Margo to contact Mr. and Mrs. Wenniger and advise them that as soon as they decide what exactly they want to do with the third lot to let her know and she would reschedule their public hearing. Margo noted that notice would need to be provided to the abutters again. The cost for noticing rests with the applicant.

Ms. Edwards is proposing to open a café and catering business in a portion of the Kennedy building. Ms. Edwards noted that negotiations are taking place and although a purchase and sales agreement has not been signed as of yet, it is expected to be done by the end of October. Ms. Edwards told the Board that Richard Rettig is interested in purchasing the building and leasing out space to different businesses, hence her appointment this evening as she would like to be a tenant in this building.

Ms. Edwards explained that she is not interested in starting a restaurant but she understands that the classification of her proposed business would be such and the fact that the property is located in the General Business District, would require her to obtain a Special Exception from the Zoning Board of Adjustment to conduct a food business. Ms. Edwards is proposing a café type of business with some tables inside and outside as well, similar to Gap Mtn. Bakery in Troy, and she is thinking about hours along the lines of 11:00 a.m. to 7:00 p.m. with a soup/sandwich type meal as well as takeout, to be available for the lunch and dinner hours. Ms. Edwards is not necessarily looking to serve food as she does not want to compete with local businesses, but she has thought about doing a Sunday brunch possibly as well. Ms. Edwards said that she may possibly apply for a liquor license for wine and/or beer also, and she has been thinking about trying to sell a particular brand of mustards, salad dressings, cheese, etc., that she uses and she thought that it would be nice to use some local suppliers for this. Ms. Edwards runs a catering business as well.

With regards to the property Ms. Edwards said that visibility could be a problem and she thought that perhaps having umbrella tables out may be an attraction. She drew a quick sketch of the layout of the building noting that she would have 1200 sq. ft. of space and she is not sure if this includes the basement. The building layout is in the shape of an H with one part of this being a bunch of offices. Chairman Silverman asked if she would utilize Rt. 12 as an entrance and Ms. Edwards said that she thought that they may utilize both entrances; Rt. 12 and Rt. 119. Ms. Edwards explained the lay out of the building noting that there are two handicapped accessible restrooms, and that the setup would work great for what she has in mind. Carlotta asked if there are any plans for the rest of the building to which Ms. Edwards said that someone in antiques is looking at the warehouse space. Carlotta noted that mixed business types could be considered differently.

Chairman Silverman told Ms. Edwards that he would proceed by going to the Zoning Board of Adjustment and approaching this as a restaurant which would give her leeway to do whatever she decides to do in the food service line. Ms. Edwards said that she does not plan to run a restaurant with staff, and the idea of having the ability to create a kitchen for this business is a wonderful thing, and the space is perfect. The name of the business is Sunflowers Café and Catering. Robin suggested a nice, attractive sign. Ms. Edwards noted that she already has a catering clientele as well. Chairman Silverman told Ms. Edwards that when they do the Site Plan Review, the Board would probably want to review things like requiring covered lights, etc., and he noted that the traffic would probably be less than the previous use of the building. Ms. Edwards asked how the application for the Zoning Board of Adjustment works in terms of the sale of the building and Chairman Silverman explained that the Special Exception does not commit her in any way. Ms. Edwards noted that Mr. Rettig would like to know if she would be allowed to run this business in this location as he would be counting on her to be a tenant. Chairman Silverman and Margo answered some questions about the application for a Special Exception for Ms. Edwards.

Carlotta asked if they were going to bring anything to Town Meeting next March. The Board spent some time discussing various things that they have worked on as well as issues surrounding smart growth, areas in town where subdivisions are being planned, roads in certain areas and basic issues that they are dealing with and are coming before them. Chairman Silverman asked the Board members if there was something in particular that wanted to work on to present to the voters in March. Selectman Clukey wants to work on the Agriculture section of the Land Use Ordinances and Chairman Silverman wants to address dimensional regulations and changing the reduction in dimensions back to requiring a Variance, with the exception of building additions. Chairman Silverman noted that this is the basis of everything they do. Carlotta is interested in growth control work; phased development ordinance or something to this effect. The Board wants to address minimum lot sizes as well. Margo will try to obtain some information from other towns. Chairman Silverman stated that they need to decide what is going to do the most good for the town and put that forward, and not try to predict the outcome. Robin stated that she has learned a lot since they began working on the Master Plan update and she is glad that it isn’t finished because they have determined some key things that need to be incorporated into it. Carlotta spoke of wanting a map of the town where they could color different categories, such as, what is built on, what could be built on, what could be subdivided, etc., as this would allow the Board to obtain some numbers, and with these numbers they could determine which tool would be the most effective for what they are looking to do. Robin noted that they should have Eric come in to assist them with this. Carlotta agreed and added that they need to do some role playing with worse case scenarios and see what our ordinances would allow them to do.

Margo told the Board that Jeff Porter and Meredith Cooper from the Southwest Region Planning Commission would be here for their next meeting to go over the Local Resource Protection Priorities map and forms that were sent to the Planning Board, Board of Selectmen, Conservation Commission and the Historic District Commission. Margo sent a memo to the Board of Selectmen and each member of the other Boards letting them know about this meeting in an effort to see all of the Boards involved in this project in attendance so that everyone understands what this update means, and it gives them a chance to ask questions about it as well.