Town of Fitzwilliam, NH - Planning Board Minutes 06/21/05

Adoption of Master Plan: Silverman confirmed that Board members had read the Updated Master Plan and were satisfied with it. Silverman moved, Pini seconded and the Board voted unanimously to adopt the updated Master Plan. A complete revision of the Master Plan is scheduled to begin in 2008.

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, Dick Drew, surveyor, and Gary Sheldon, attorney, were present.

Mr. Sheldon presented revised plans to address concerns voiced by the Board at the last meeting. Mr. Sheldon noted three concerns stated by the Board: safety of the western most driveway, density of lots and wetlands frontage. Mr. Filipi revised the plans, eliminating the western most driveway, reducing the number of lots to seven and extending the center driveway to serve 4 lots. Mr. Sheldon proposed the wetlands could be considered a natural buffer and siting homes far back on the lots screens them from view of the road. The center driveway is a 700 foot long common driveway with two individual driveways extending beyond that point. There was no change to the 800 foot long common driveway on the east. It serves three lots and has two wetlands crossings.

Pini said that at the last meeting Carmen Yon, Chair of the Conservation Committee, suggested a cluster development on this property might be more appropriate. She wondered if Mr. Filipi had considered that. She noted the Filipi plans clearly demonstrate that either seven or nine lots can be created on the property in a regular subdivision, meeting cluster zoning regulations. Gray noted that with a cluster development only one driveway would be necessary and therefore the cost to the developer would drop. Landy pointed out a cluster would preserve and protect the extensive wetlands and would reduce the number of driveways further. Gray noted the remaining driveway may require no wetlands crossing and therefore reduce the impact on the land. Haynes wondered about slopes of driveways, and Mr. Drew assured her all were less than 10 %.

Mr. Sheldon agreed it was an interesting idea but since the client had addressed Board concerns stated at the last meeting with the revised plan, this is the plan they are presenting. Pini said she understood that, however, she has been trying for the past two weeks to figure out what to do about this property. Mr. Sheldon opined people like to live in homes separated by land. Gray thought people from the suburbs like to live in neighborhoods, and cluster development provides that in a rural setting.

Cheryl Davis, Conservation Commission representative, said the CC had discussed the idea of a cluster development after the preliminary meeting with Mr. Filipi, and wondered if he would consider it.

In response to Mr. Sheldon’s suggestion that they might then want to build more homes in a cluster development, Gray read the cluster development regulation to clarify that the number of lots is limited to the number that could be created in a traditional subdivision, which the original plan suggested was nine. Mr. Sheldon agreed that with frontage requirements, maybe nine was the maximum.

Mr. Russell, an abutter and alternate to the Board, suggested Mr. Filipi understood the limitations of the land when he bought it, and was now planning to build an 800 foot road through permanent wetlands. He said that the proposed density of homes would increase the danger on the road, noting any safety advantage in the new plans was to west bound traffic only; however, even under current conditions it is his experience that west bound traffic takes the corner too fast and ends up in the trees.

Silverman explained he is still concerned with lots that have no functional frontage, which is an interpretation the Board has used before in other cases, citing the Hill case. He believes using wetlands as frontage sets a dangerous precedent for the town.

Mr. Sheldon asked for a legal citation for that definition and Silverman responded it isn’t in the regulations per se, but the Town doesn’t issue building permits for lots without access through the frontage. He noted the Town is at a point where the ‘easy’ lots are at a premium and pressure to build on less than ideal lots is increasing.

Pini remarked that cluster developments are popular, citing an article that pointed out the advantages of living in a development that feels like a neighborhood, on a cul de sac, where one can walk safely. Responding to Mr. Sheldon’s objection that marketability is an issue, she said that as a realtor with seven years experience in the area, cluster development homes are very marketable.

Mr. Sheldon repeated that they could have a conversation about cluster development but the plans in front of them are the plans his client is presenting. Pini wondered if the developer was not interested in a cluster development. Mr. Filipi responded that he had been planning this for more than a year. Silverman said the application was accepted as complete at the May 17^th public hearing, less than 30 days after the Board received the application.

Silverman reiterated he was still concerned about the safety issues raised by the proposed driveways, especially the western most drive, and read into the minutes a letter (attached) the Board was sending to the Department of Transportation expressing concern. He

relayed a conversation with Police Chief Newton regarding the danger and number of accidents on that stretch of road. He presented a crash map for DOT that underscored the number of accidents there in 1998, 1999 and 2000.

Mr. Sheldon asked if the Board had any more concerns about the plans presented. Silverman noted the proposed center drive was OK and the eastern one was good, but he was still not happy with all the wetlands frontage. Silverman said the developer needs a conservation plan, with an enforcement provision for future homeowners – remarking there are a lot of wetlands to preserve.

Silverman accepted a hand delivered letter from Mr. Spicer’s attorney regarding Mr. Spicer’s boundary line dispute with the developer. The letter urged the Board to consider the issue during the subdivision approval process. Mr. Sheldon, who had received a copy of the letter, remarked that the Board has addressed this issue twice in previous meetings and it is irrelevant. He feels it is being used as leverage on Mr. Filipi to convey land. Mr. Spicer interjected that he had no intention of using the letter as leverage, but rather to call attention to credence approval would convey to future owners. He said Mr. Filipi thinks he has a better way of separating the land than the original owners did. He submitted deeds of record for the disputed area for the record. Copies will go into the assessment file and are attached to the minutes.

Beckwith asked Mr. Spicer if he would be satisfied with language that made approval contingent on resolution of the boundary dispute and he said yes. Grasewicz advised the Board to disregard any boundary disputes and remove them from consideration. The plat has a surveyor’s stamp on it and the surveyor is legally bound to do an accurate survey. Mr. Drew, surveyor, said he had interpreted the deeds differently than Mr. Spicer and until there is another survey that disputes his survey, it will stand. Silverman repeated the dispute is not the Board’s concern, and said it would be great if it could be resolved before the Board makes a decision.

In response to a question about whether the Conservation Commission had a report on the wetlands involved, Cheryl Davis said the CC had walked the site and noted two small wetland crossings that could be done with culverts, subject to DES approval, but that the CC had decided not to sign an expedited wetlands application prior to the subdivision being approved. Grasewicz thought the developer may need a site specific alteration of terrain permit from the state, and the Board could make that a condition of approval.

Mr. Sheldon again said the applicant had tried to address the Board’s concerns, and wondered if there were any other concerns. Haynes said she concurred with Silverman in his concern with setting a precedent by approving lots with such extensive wetlands

frontage. Pini reminded Mr. Sheldon that several members of the Board have shown an interest in cluster development for this property. He responded that the current plan is the plan they are presenting and only wonder if there are additional concerns.

Mr. Drew showed a copy of the new plan with boundaries and wetlands outlined in color – the Board compared it with the original plan. Haynes voiced a concern about a driveway that bisects a lot, leaving it with very little privacy, and noted the number of rights of way agreements that would be needed. She wondered if that would affect the salability of the lot.

Beckwith called attention to the Wetlands Protection Ordinance conditional use approval process, noting one criterion requires there be no reasonable alternatives. She noted if a cluster development was proposed, it is a reasonable alternative that would lessen the impact on the wetlands.

Mr. Drew said he had considered a cluster development early on but had understood Fitzwilliam was not welcoming those proposals. He said he tries to design what his clients request. Pini said we’re trying to help you here, we are encouraging you to consider a cluster development and smart growth concepts. Mr. Sheldon repeated this was their plan. Landy said three lots without functional frontage are not buildable. Mr. Sheldon wondered if there was anything else on this plan to be changed.

Paul Grasewicz and Ralph Niemela presented a revised plat that incorporates recommendations the Board made at the last meeting. A note now addresses common driveway easements; the cul de sac note has been removed; a note regarding a natural wooded buffer was added; and a note regarding driveway covenants was added. Grasewicz distributed a draft covenant, which defines common driveway and describes the easements. Covenants will be recorded with deeds.

Silverman asked if anyone had seen the property and Landy said yes, he had no problem with it, adding he hadn’t walked to the back of the land. Gray asked if there were any slopes at issue. Grasewicz referred to a plan indicating contiguous upland with slopes of less than 15%. Landy asked about soil types and Grasewicz said one test hole, done several years ago, had revealed sandy, loamy soil with a fast perc, and presumes this soil continues on the property. He indicated there was ledge on lot 7-04 in the front and some wetlands that will not be an issue.

There was some discussion of the land itself, locating woods, etc. Pini moved, saying ‘it is a nice little subdivision, Gray seconded and the Board unanimously approved the application. A Notice of Decision will be sent to the applicant and the Mylar recorded.

Wetlands hearing: Donald Thompson to discuss construction within the wetlands setback, Map 7, Lot 41 on Templeton Turnpike. Referred by the Selectmen/Conservation Commission. Davene Brewer, owner of the property, was present. She purchased the property from Mr. Thompson who had begun work on it as she was buying it.

Silverman reviewed the Building Permit application and noted Ms. Brewer has the application as required. Ms. Brewer presented the plan drawn by Carl Hagstrom illustrating concepts to prevent erosion and control runoff, two concerns of the Board. Brewer, to clarify the record, noted that runoff from the existing house has caused no scouring in 40 years. Silverman said the Board was interested in the stream bank.

Gray asked if the construction was essentially finished and Ms. Brewer replied the inside wasn’t finished. She said they could rip off the addition if required to, but would like permission to finish the inside of the existing cottage. Mr. Thompson had started work on it before she bought it and had stopped work when he received the Cease and Desist letter in May.

Pini asked if the Conservation Commission had seen the Hagstrom plan. Cheryl Davis said they had just received it yesterday. Landy confirmed the size of the dry well at 34” X 74”. Grasewicz said it was a plastic infiltrator, adding that he remembers from the septic plan that the property is all sand and gravel. He noted that the plans call for adding rip rap to the stream bank and he’d recommend talking with DES before doing that.

Silverman reviewed the wetlands application, noting no written report had been made by the Conservation Commission. Land Use Assistant will contact Conservation Commission for a written report. Pini asked if the property was in the floodplain. Ms. Brewer replied it wasn’t. Grasewicz noted that the floodplain issue is one the Selectmen will deal with during the building permit phase.

Silverman noted the Wetland Protection Overlay District ordinance gives the Board three options: to reject the application, to approve a conditional use, or to refer to the Board of Adjustment. He asked the Board to vote on the criteria to see if the application is eligible for a conditional use permit.

Section 127:16.1 D(4) - Conditional use approval may be granted by the Planning Board (RSA 674:21) after a public hearing, provided that the proposed activity complies with all of the following:

(a) The activity is a productive and reasonable use of the land and is in compliance with the purpose of this section. The Board unanimously agreed this was a productive and reasonable use of the land.

(b) Design, construction and maintenance methods are established to minimize detrimental impacts to the wetlands and restoration is provided for. The Board agreed unanimously and conditioned approval on receiving proof of implementation of the drainage plan as presented.

(c) No reasonable alternative exists which would avoid wetlands alteration or lessen the impacts. After some discussion, the Board agreed this criterion did not apply. Pini noted however, that a reasonable alternative did exist before construction was begun.

(d) The altered wetland area is less than two thousand square feet. Such wetland replacement shall be contiguous to the disturbed wetlands. The Board agreed this criterion did not apply.

Grasewicz reiterated that any alteration to the stream bank needs DES input. Ms. Brewer said Mr. Hagstrom had suggested the rip rap was probably not needed. Silverman suggested consulting with DES and implementing their advice.

Silverman moved, Landy seconded and the Board voted to approve a conditional use permit if the following conditions are met: implementation of the drainage plan by installing the gutters and dry well to be confirmed by the Code Enforcement Officer, and consultation with DES regarding rip rap and implementation of their advice.

Silverman asked Ms. Gates what she plans. She has leased a 10X10 space in the Crossroads and provides massage therapy and spa services to clients. When asked about signs, she said the Crossroads provides all lighting and signage. Her name will be added to the common sign.

Silverman noted this was an allowed use under Section 127-11L in the General Business District. Landy asked about certification and Ms. Gates said she had completed both state and national certifications and her license and liability insurance are posted in the shop.

Grasewicz reminded the Board they had conditioned approval of the subdivision on a review of all driveways by Conservation Commission prior to issuance of a building permit, and obtaining an approved site plan from the Planning Board for each building lot with house site, septic, well and driveway grading on layout.

Mr. Walters reviewed the proposal and confirmed that he will meet with the Conservation Commission to review the driveway layout regarding wetlands, and show preliminary septic plans, erosion control measures and building setbacks. He will use as a guide the preliminary driveway plan and will talk more with the Road Agent regarding safety issues. Landy noted the driveways on Richmond Road especially need a leveling apron before entering the road. They plan to involve no wetlands in the building process.

Grasewicz said they should have the Conservation Commission review the plans to determine if wetlands are affected. If so they will need to return to the Planning Board for a wetlands hearing.

He would like to add a direction to the regulations so that the Mylar for a subdivision plat is supplied and signed at the time of subdivision approval. Grasewicz said that if minor changes were requested at the approval hearing they would need to be made to the Mylar and that may take some time. He suggested a seven day window for signing. Another suggestion was to continue the hearing until the Mylar was signed. The amendment reads “Mylars for subdivision plats are to be supplied and signed at the time of subdivision approval.” A public hearing will be held on the proposal.

Silverman said he’d also been thinking about the definition of frontage and would like to incorporate the concept of functional frontage. He is very concerned about lots with wetlands as frontage and wondered if the Board had ever approved more than one wetland crossing in a subdivision.

He read an interpretation of functional frontage used by other planners: functional frontage is that which can be used for access without terrain modification or wetlands permit. There was some discussion of what terrain modifications and wetlands impacts meant. Pini asked about the intent of frontage and Grasewicz answered it’s to provide access. Silverman said his intent was to prevent building around and behind extensive wetlands. Grasewicz wondered if driveways should not be permitted across wetlands. Silverman said he didn’t have trouble with wetland crossings on this (the Filipi) subdivision but with building on lots with wetlands as the whole frontage, saying that

The Board settled on the following definition of frontage, which will be added to the existing definition of frontage in the subdivision regulations. “Frontage provides functional access from the road to the building site without extreme modification of terrain or wetlands.” A public hearing will be held on the proposal.

Minutes: The Board reviewed the minutes of the June 7, 2005 meeting and three corrections were noted. Pini moved, Gray seconded and the Board approved the minutes as amended.

Rules of Procedure: The Planning Board’s Rules of Procedure “may be amended by a majority vote of the members of the Planning Board provided that such amendment is read at two successive meetings immediately preceding the meeting at which the vote is taken.” Accordingly, Silverman did the first reading of their Rules of Procedure. The second reading will occur at the July 5, 2005 meeting and the Board will vote on the amended Procedures at the July 19^th meeting.