Town of Fitzwilliam, NH - Planning Board Minutes 06/07/05

Public Hearing Master Plan: Laura Weit of the Southwest Regional Planning Council presented the updated plan to the Board. SWRPC assisted in the update process, incorporating changes to sections edited by the Board. According to state law it is the duty of a Planning Board to update the master plan, and SWRPC recommends they be updated every five years or when major change occurs in town. Since this most recent update was begun in 2003, the next update will begin in 2008. Ms. Weit noted that Fitzwilliam has not experienced the same change as have neighboring towns but is faced with the challenges of managing commercial growth and suburban sprawl. She reviewed the goals and policies of the document and called attention to the recommendations, developed by the Board with input from townspeople. These recommendations are the basis for taking action on the Town’s priorities.

Public hearing continued: Arnie Filipi proposes a nine lot subdivision of property located on the north side of NH Route 119W, east of Kemp Brook, Map 10, Lot 68, Rural District. Arnie Filipi, owner, Dick Drew, surveyor, and Gary Sheldon, attorney, present.

Mr. Drew presented updated plans, with a few small changes and outstanding features highlighted. These plans incorporate a boundary line change on the northeast corner, brought to his attention by an abutter, and the proposed center driveway was realigned. A disputed boundary line on the north was highlighted but not changed. The owners will resolve the issue, which could mean a reduction of about three acres to one lot.

Drew noted that the western most common driveway is designed to serve four homes on the current plans but that could be reduced to three, with the center driveway picking up a third home if necessary. Gary Sheldon, attorney for Mr. Filipi, reminded the Board that the plans as drawn were driven buy the Town’s subdivision regulations and that the plan meets all these regulations.

Gray clarified that the state had assigned the driveway access points and Drew confirmed. Pini asked if the state was aware there would be four homes sharing the western most common drive and Drew confirmed they were. Landy asked about driveway slopes and

Drew said they ranged from flat to less than 10% slope. When asked how driveways would be surfaced, Drew replied they would be paved. Grasewicz suggested the Board could condition approval on reviewing plans for the driveways before building permits are issued. Landy asked about the aquifer under the property to the northeast and Drew said there would be no development in that area as it was primarily wetlands. Gray asked if the common driveways would have some sort of right of way for properties they serve.

Silverman said he thought that approving the two lots with wetland frontage was setting a dangerous precedent for the town. He is concerned with the western most driveway, as it meets Route 119 at a very dangerous curve on a hill; and the proposed density of this subdivision is of great concern. He cited RSA 236:13, which allows a local planning board to set safety standards on roads considered hazardous. There have been two fatal accidents at that point already and traffic could be increased by 50 trips a day for the west driveway and 20 – 30 trips per day for each of the other two driveways.

Silverman noted the project can still be profitable without the density proposed for a property that involves extensive wetlands frontage and dangerous road access. He said he understands that the plans meet the letter of our requirements but it’s not good for the land. He said when the Board walked the property he thought the first four lots were the best lots, but the driveway is the problem there. They watched vehicles take that corner in the center of the highway and above the speed limit.

Mr. Sheldon reminded the Board the driveways were submitted and approved by the state as drawn and suggested the Planning Board may be preempted by the state. Silverman responded the research they had done after the site walk indicated the town had authority to address safety issues. Mr. Sheldon noted wetlands would not be impacted by development of the lots. Silverman responded that creating lots without functional frontage is a bad precedent.

David Spicer, an abutter, noted that the western driveway also serves as a right of way for his property and in the future it may need to serve another structure. Mr. Sheldon thought the Spicer property may not be buildable as it is landlocked.

Pini said she was interested in obtaining statistics on the number of accidents in that area from the police chief and rescue squad, so the Board had numbers in addition to anecdotal evidence. Gray is also interested in average speed in that area.

Mr. Sheldon asked what the Board was looking for, adding that if three driveway permits are issued the owner won’t give up the access points, but the center driveway could be extended, so the west driveway would serve three rather than four households.

west driveway. Drew said the state determined that the driveway meets the state line of sight regulations based on a car going 40 mph. Mr. Filipi said it was possible that work could be done to improve the line of sight distance by removing vegetation. Pini said she just didn’t want four households coming out of that driveway. Mr. Sheldon asked if she wanted three and she said it wouldn’t satisfy her. Haynes remarked that the west driveway puts lives of the people of Fitzwilliam at risk, whether it is one house or four. Gray noted it was the Board’s job to consider the safety of people.

Mr. Sheldon reminded the Board the state assigned this driveway access. Silverman said meeting the minimum line of sight regulations does not necessarily mean it’s safe. Grasewicz noted that the state doesn’t see vegetation on the plan they get. Mr. Filipi said the driveways will be inspected by the state and maintained to standard. Haynes wondered what happens in the future regarding maintenance. Pini said she hated to say it but she didn’t have confidence in the state’s safety decisions. Landy said the state doesn’t have enough patrols to insure or even know about the safety hazard of that particularly nasty corner.

Carmen Yon stated the plans propose to chop up the property with lots and asked if a cluster development had been considered. Gray noted there were lots of wetlands to work around. Silverman said the nature of this property makes it unsuitable for a cluster development. As proposed it is 30 – 40 % too dense for the access capacity.

Mr. Spicer, abutter, said the boundary dispute has not yet been resolved and he plans to initiate action to resolve the matter. Silverman noted it was between the parties involved and did not concern the Board. Mr. Spicer said he understood that, but if the Board plans to approve the subdivision tonight they wouldn’t know how the lots were defined. Silverman noted the Board probably would not decide tonight.

Mr. Sheldon remarked that the subdivision is driven by the ordinances that assume all land is the same. Silverman responded that it was the Board’s job to interpret the regulations. Landy noted that safety and density issues must be considered.

Paul Grasewicz and Ms. Gilbert presented a map of the property. Ms. Gilbert plans to build her home on the subdivided lot. Grasewicz noted access would use the existing curb cut because the state won’t approve new curb cuts on Route 12. Currently there are two mobile homes on the property and have been for years. Ms. Gilbert plans to remove the mobile home she now lives in, either selling it or moving it somewhere else.

Pini confirmed there are 18.8 acres available. Grasewicz said the property is chopped up with railroad beds and highways and some wetlands and the subdivided lot would take 5.5 acres and have 250 feet of frontage. Ms. Gilbert said there were no real wetlands, no wetlands vegetation, but gravel was removed in constructing Route 12, which left a depression that is wet some of the time.

Silverman confirmed Ms. Gilbert will replace the mobile home with a structure and remove the mobile home when she builds her new home. She agreed. Pini noted the changes will make the use more conforming than it is now. Silverman agreed that if the same use was continued it was certainly OK. There was some discussion of existing septic and well. The new house will have its own well and septic, although Ms. Gilbert said the current well is an artesian with great water flow. Ms. Gilbert‘s brother added that the snowmobile trail will be rerouted to accommodate the new house.

Mr. Thompson represented Davene Brewer, the property owner, who had received a Cease and Desist letter from the Town. He distributed photos of the property and told the Board he thought he had built the one story addition on an existing footprint. Apparently, a deck extended from the structure at one time but it has been gone for a long time. His intention was to just square the house off by adding what the owner calls a ‘reading room.’ Mr. Thompson showed a plan of the existing structure, indicating where the addition was located. Mr. Yon said the Conservation Commission did a site walk and the structure with the addition, built without a building permit, is now seven feet from the bank of the brook. Silverman clarified that Mr. Thompson had built living space over an area that in the past had been a deck. Mr. Thompson agreed, saying he didn’t know he couldn’t. He added he didn’t think the room would have any impact on the land; the soil is sandy and absorbs runoff well.

Grasewicz asked how high the cottage was from the brook and Mr. Yon responded there is about a seven foot drop, described as escarpment-like, to the brook with some bank retention materials, trees and chicken wire, in the brook where, over the years, it has been

Gray asked about a bathroom and kitchen. Mr. Thompson said the owner goes to Florida for the winter and Gray asked if the structure was essentially a camp. Mr. Thompson said the structure had a kitchen and bath and was heated but the addition would not be heated. He said this was the one place the owner felt she could live that is affordable for her. He said the problem was his fault, that he had followed bad advice.

Silverman asked about the foundation and Mr. Thompson described the original foundation as cement with ‘real’ 2X6 beams creating a crawl space. The foundation for the addition is two sona tubes and 2X6s. Pini asked if he could have built out to the side and he said he’d need a building permit and to remove trees to do that. She asked what the status was of the construction now. It is essentially finished.

Landy asked about erosion problems and Mr. Yon said that by covering absorbent land with a structure an erosion problem could be created. While there doesn’t appear to be any evidence of scouring yet, the structure has been in place only a short time.

Silverman said he respects Mr. Thompson’s motives but has trouble when people interpret our laws on their own and then ask us to fix any problems it may have created for them. If the original was a deck then he could have rebuilt a deck. Mr. Thompson said he may have misunderstood what he was allowed to do. Mr. Yon confirmed that the brook is not a fourth order stream, which would be regulated by state law.

Grasewicz suggested a conditional use permit may be possible if the Board sees a plan with erosion control measures spelled out. Landy said that for a conditional use permit to be granted the applicant has to meet four criteria and he is bothered by one which states ‘no reasonable alternative exists which would avoid wetlands alteration or lessen the impacts.’ Pini clarified that the Board is applying the Wetlands Protection Overlay District ordinance.

Silverman said he hadn’t seen a design proposal that would lessen the impact on the brook and the addition hasn’t been there long enough to show the possible impact. He continued that Mr. Thompson has left the Board in the position of having to ask him to remove the addition. He said the Board tries to avoid making anyone’s life miserable but Mr. Thompson has built illegally. He added that Mr. Thompson needs a professional to

When Mr. Thompson repeated his opinion that there would be no impact on the stream, Silverman said with the structure so close to the stream the town would be opened to liability in the future should the bank be eroded and undermined by seepage. Landy said Mr. Thompson needed a plan that will assure the Board that there won’t be a problem in the future, or Pini added, that the wetlands won’t be negatively impacted.

Mr. Niemala and Paul Grasewicz presented the plans , saying they were essentially the same as presented during the preliminary consultation. They propose to create three lots, one a hammerhead lot, with a shared access and easement across Mr. Niemala’s lot.

Haynes commented on the proximity of wetlands to one driveway. Grasewicz said the driveway would be narrow to avoid wetlands, and noted that the other driveway would be 21 feet wide and paved, ending in a cul de sac. There was discussion about the pros and cons of the cul de sac. Pini wondered if there would be some sort of driveway agreement for the shared drive. Grasewicz said he had a model driveway covenant that defined responsibilities for a driveway to be included in a deed.

Pini clarified he was in the Rural District and Mr. Niemala noted the zoning/land use changes just north of him. Haynes moved, Landy seconded and the Board approved a motion to continue the hearing to June 21, 2005 at 7:30 PM. The Board asked Mr. Neimala to bring 1) driveway covenants, 2) a note on the plans removing the cul de sac and 3) a note to retain the existing natural buffer of trees along Route 12.

Silverman asked if the Board wanted to walk the property and they agreed to do so individually, if the owner agreed. Mr. Niemala agreed. Grasewicz noted the wetlands were flagged and boundaries marked.

Mr. Thornbaugh, a realtor with Coldwell Banker, told the Board his client, Mr. Stenerson had a contract on this property and wanted to see if it could be subdivided before he bought it. Perc tests were done and they discovered the frontage was wetlands. Mr. Stenerson had envisioned a two lot subdivision with a shared driveway. He planned to build a house and sell the second lot to a family member. Haynes asked if a soil scientist had seen the property and Mr. Stenerson said Paul Swingle, a septic designer, had done the perc tests. Haynes said they would need to have a soil scientist flag the wetlands and site walk by the Conservation Commission.

Pini recalled talking with the Eddy’s about limiting further subdivision of this property during their initial subdivision hearings. She said she didn’t think the Board wanted to see the lots created by the Eddy subdivision further divided, wondering if the Board would have approved a four lot subdivision had the Eddy’s proposed that. The Board agreed that if a four lot subdivision had been proposed by the Eddy’s, it would have been a major subdivision and therefore subject to greater scrutiny and they probably would not have approved it.

Mr. Thornbaugh said his client had bid on the property on condition it could be subdivided, and the wetlands were not marked on any plat. Silverman said that if the plan complied with the town subdivision regulations then, in theory, the lot could be subdivided. Silverman said that when the Board approved the Eddy subdivision they were approving land division and therefore wetlands didn’t matter, and it in effect opened the area for further subdivision.

Administration: Noting the Board had received a letter of resignation from Donna Hill, Silverman moved and Haynes seconded a motion proposing Carol Beckwith (alternate) be appointed to fill the Hill term until the next election in 2006 and that Laddie Russell be appointed an alternate. The Board approved the motion unanimously.