Town of Fitzwilliam, NH - Planning Board Minutes 01/17/06

Appointment: Jim Bourassa seeks Planning Board approval, under RSA 674:41 II-a., for dwelling on lot with access from Class VI, Map 12, Lot 50, prior to petitioning legislative body to upgrade road to a Class V.

Mr. Bourassa told the Board he did some work off-site on a camper to make it look more like a cottage. He built it ten feet longer and about 18 inches higher. He then placed the camper on his property in Fitzwilliam. He maintains it is legal as it is a hunting camp only, not a year round dwelling, and can be rolled off the property at any time. The septic system is a toilet and holding tank in the camper and an outhouse. He has a fifty foot access to his property off a Class VI road.

In a letter sent on June 23, 2000 and in minutes of the Board of Selectmen’s meeting on May 22, 2002, the Town acknowledged the road as Class VI and the lot as unbuildable. On December 13, 2005 the Town sent a letter to Mr. Bourassa stating that since the property had been developed, one acre of land would be taken out of current use and assessed appropriately. The Town advised him that since the development occurred without a building permit, and the Town will deny a building permit on a Class VI road, he can appeal the administrative decision of the Selectmen to the ZBA. While appeals may still be open to him, it was suggested that a change in RSA 674:41 II (a) allows him to go before the Planning Board for approval prior to petitioning the legislative body to upgrade the Class VI road to a Class V road, which may make his lot buildable.

The Board examined the plat drawing to determine where the road touched the property and how much frontage there actually was. Mr. Bourassa was not sure where the road went after his property. The Town owns the road but does not maintain it. He has maintained it for the five years he’s owned the land. The Board determined that several properties have frontage on this Class VI road.

Pini suggested that if he had been permitted to put a camper there at one time, this structure wasn’t a camper anymore with the changes that have been made. When asked, Mr. Bourassa said that with ‘very little work,’ the unit could be made mobile and he could drag it off the property. He maintains it is a self-contained unit.

Silverman and Pini expressed concern about going against the Planning Board’s own advice to the Selectmen in 2002 regarding not allowing building permits for property fronting on Class VI roads, and setting a precedent for opening up back lots for development.

Public hearing continued: Raman Patel Site Plan Review application to open a retail convenience store in an existing building located at 646 NH Route 12 South, Map 8, Lot 13, Rural District.

Mr. Patel was present. JR Davis, attorney for Mr. Patel, and Paul Grasewicz, site plan engineer, presented a revised site plan with minor changes that show the septic system and leach field in greater detail, a third exterior door, and the 25 foot jog out into the state right-of-way. The Fire Department sent a letter with their recommendations. Silverman noted the Planning Board had received a request for input from DOT regarding the two access points.

Mr. Davis distributed an affidavit from Mr. Taylor, current owner of the property, attesting to his continued rental of the apartment for the past eleven years. He also urged the Board to approve the site plan on condition the driveways are approved by DOT. AT Mr. Davis’ request Silverman read the Planning Board’s letter from DOT.

Silverman noted that the Board did a site walk on January 6, 2006 and that he had a problem with the line of sight for the lower driveway. When cars come over the knoll northbound, there is about eight seconds to react before the car is opposite the southernmost access/egress point. He added that exiting from the upper driveway took several minutes.

Gray agreed that the speed of traffic on the road is above the posted speed limit by 15 to 20 mph. She has a concern about northbound traffic turning left from the passing lane into the parking lot. Landy stated that he had never suffered the kind of problems they mentioned when visiting the site in the past. Pini agreed that the lower access point was problematic. She said various options were discussed, like making it one way, but no conclusions were reached, short of recommending to DOT that the driveway not be used. She proposed that a traffic study be done to determine the traffic patterns, to control traffic entering and exiting, and to manage traffic in the parking lot.

Mr. Taylor, current property owner, said DOT told him that if the new owner paved the lower driveway it would be graded and raised, increasing the line of sight at that position. He added that in his experience northbound traffic used the upper driveway to enter and exit and southbound traffic used the lower to exit. Mr. Taylor said both the DOT and the local police had okayed the access points as meeting state requirements.

Silverman read a letter from Robin Haynes, who could not be at the meeting tonight. One of her proposals was to have a traffic sign that warned of traffic entering and exiting.

Mr. Davis said he thought this was a matter best left to experts like the DOT and their judgment should prevail. He noted that the lines of sight for both access points met requirements. He added that the lower driveway is burdened by a right-of-way to the abutting property. That owner will continue to be able to use that access. Mr. Davis said the Planning Board can’t prevent access to a state controlled highway, but could impose conditions if they have facts to support those conditions. Regarding traffic safety, he noted there was no evidence that there have been accidents during years of retail sales at this location, even during the most active times when there have been outdoor flea market/antique sales.

Pini asked if the applicant had done market research to determine how many patrons he could expect. Mr. Davis said no, he hasn’t, but this is a good location. Pini reiterated that since this is a commercial development, she thinks there should be a traffic study to determine optimal traffic patterns, parking arrangements, and other conditions. She used the traffic conditions encountered by customers at Mr. Mike’s as an example, noting the two entrances several ways of exiting, and lower speed limit and traffic control device at that point on Route 12. Mr. Davis said the conditions there were very different, with the store being at a nonconforming four-way intersection of two state roads.

Mr. McLaughlin, an abutter, noted that when he comes home from work, northbound on Route 12, he frequently can’t turn left into his driveway because speeding truck traffic is pushing him too fast to turn – and he has to go further north before turning around to go south again to make a right into his driveway. Mr. Niemala, an abutter, agreed that area is very dangerous, he was almost hit by a car when he went to get the mail, and once his car stalled exiting his driveway and was nearly hit by fast oncoming traffic. At 7:30 AM milk tankers speed by and he has to pull over to the right to let them pass.

Mr. Niemala said he measured the distance from the parking lot to the stone wall on his daughter’s property (the McLaughlin’s) and then the 15 feet to their children’s playground; it totals 265 feet, which he felt was too close for comfort, adding the traffic will not be the same as traffic for an antiques store that has less activity. He added that Friday and Saturday are very busy traffic days, while traffic on Tuesdays, flea market days, is generally lighter.

Mr. Dwinell, abutter, reminded us of the traffic report on the one fatal car crash that occurred near his store. Weather conditions were near perfect for driving and still the accident happened. He added Mr. Taylor does not get tractor trailer deliveries or have tractor trailer drivers as customers and he does. He asked what would happen if two trailers were stopped on opposite sides of the road. He noted that the business north of Mr. Taylor’s generates truck traffic seasonally, and that generally traffic is ‘unbelievable’ in the summer.

Mr. Taylor said that there was plenty of space for trucks to pull in and park in his lot now; they can enter either driveway and turn around and park. They don’t need to park on the side of the road. Landy asked if the entrances can be widened and Grasewicz said the entrances were wide enough now for a tractor trailer to enter.

Mr. Little, attorney for Mr. Dwinell, asked if there was a parking layout, noting that requirements for semis are different than for cars. The site plan as drawn does not show that there is sufficient room for parking. Grasewicz said he had distributed a parking plan at the last meeting, and there was more than enough room to meet Town regulations.

Pini moved and Gray seconded a motion to require a traffic study, conducted by a consultant of the Board’s choosing and paid for by the applicant, to determine optimal traffic patterns assuming both driveways are used to enter and exit; that makes a determination about sidewalks, crossing areas and delivery areas; determines a pattern to enter, exit, and turn around; that takes into consideration placement of trucks relative to people and the store; determines truck maneuvering room; and that an approximation of the number of customers in a day and a rough schedule of delivery times and days would be needed to complete the study accurately.

Grasewicz disagreed, saying the client should choose the consultant and the Board can check the work using someone else if necessary. Pini reminded us of the consultant the Board hired, at an applicant’s expense, to do a wetlands study. She felt that was a good example of the Board getting objective expert advice. Mr. Taylor thought the study should be done by DOT. Adding he thought it was wrong to ask Mr. Patel to pay for this when he has been doing business at this location for years.

Pini agreed that DOT has the right to determine access points. Mr. Little suggested that DOT may find this is enough of a change of use to affect their decision regarding access points, saying he thought the motion on the floor was about traffic management on site, not about access points. He also questioned if the required negative slope (RSA 236:13) could be achieved if the lower driveway is graded and paved. Mr. Taylor pointed out that Mr. Dwinell’s store was an antique store too before it was a convenience store.

Mr. Davis said they needed to know what specifications the Board had for the study, as they don’t think anything is necessary. He said a study is different from traffic patterns. Gray disagreed, saying the amount and times of traffic is related to on-site traffic management. She asked about a business plan for this site that addressed these issues. Landy said he didn’t share the Board’s concerns, saying there is plenty of room for cars and trucks with more than sufficient room for maneuvering. He thinks the bigger issue is the width of the access.

Pini said the current site plan does not show where cars and trucks can park. Grasewicz responded that there is not a single designated parking spot for the store across the street, and further there is no guarantee that people will park where you want them to. Landy said people usually park perpendicular to the barrier on this site. Silverman said that the site is in the rural district and usually people park in an orderly fashion.

Mrs. McLaughlin raised the issue of a change in clientele; characterizing the new clientele as younger drivers. Silverman noted his pottery studio is across the street from the Depot Store and there are a lot of youngsters in and out there. For the most part they seem to do alright. He said he thought we needed to trust the population and noted people usually act for their own self-preservation.

Mrs. McLaughlin wanted the Board to address the safety issues regarding her children that she feels come with a younger clientele as customers. Mr. Davis noted that any action the Board takes must be lawful, and no distinction can be made among customers.

Mr. Little raised the issue of whether the apartment was a legitimate grandfathered use. He stated 1) A building permit for Therese Doyle did not state any year around residence for the property; 2) Town records do not show an apartment in the building; 3) A December 1991 police report mentions an apartment but no action was ever taken; and 4) There was no mention of an apartment when this property was before the Planning Board in October and December 1989. He said these primary source documents, where there is no mention of a lawfully established apartment, plus the town’s tax records, would indicate no lawful apartment exists.

Silverman said he agreed these are source documents but the fact is the apartment has been occupied for the last ten years and the Town has never said it was illegal or taken any action on it.

Mr. Little responded that a scofflaw has no right to approval of an illegal act. Further, Mr. Cynewski, a contractor who worked on the property, stated there was no apartment in the building. A records review shows that there was a kitchen there for restaurant purposes, and for public health reasons kitchen facilities are not permitted to be used for public and private purposes.

Pini asked if the Board could get back to the motion on the floor. She said she still feels a traffic study and flow pattern is necessary. She fears the Planning Board does not want to impose this on the applicant, but this is a commercial endeavor that will have an impact on the area, and so should be done. The Board voted three aye and two no, stipulating that the applicant can hire a consultant of his own choosing. Mr. Davis asked if the Board could wait on the results before deciding if further verification was necessary. Pini said how helpful it was to have someone working for the Planning Board who could check the plan. Gray suggested the Board reserves the right to get another opinion. The Board agreed.

Silverman read the Haynes letter again to note several suggestions: limit the size of the store sign to the current sign size; allow no advertising signs since they are a distraction to drivers; allow no additional lighting, or lighting after one half hour after closing; limit the store hours to hours of existing business – or consider an expansion of hours as an expansion of use that should go before the Board of Adjustment.

Gray added she hopes the Board will further consider the expansion of use issue in general. She cited case law, Conforti v City of Manchester, which applied three New London Land Use Association v New London Zoning Board case criteria to conclude that using a former movie theatre for live performances was considered an expansion of use,. Silverman agreed the Board needed to explore it further.

Mr. Davis felt this issue had been covered by the Selectmen’s administrative determination, which was upheld by the Board of Adjustment. Little noted the Selectmen’s decision was advisory, and thought this was an area for further litigation.

Subdivision hearing and wetlands hearing continued: Arnie Filipi proposes an eight-lot cluster subdivision of property located on the north side on NH Route 119W, east of Kemp Brook, Map 10, Lot 68, Rural District.

Ed Rogers, road engineer, Gary Sheldon, attorney, and Richard Drew, surveyor, attended the meeting with Mr. Filipi. They presented a modified road plan that continues to avoid any wetlands impact but does have a lesser impact on the land. The road will pass through the WPOD but does not impact wetlands. There has been a change in the original common drive, which was redrawn and combined with another driveway.

Mr. Sheldon clarified that the last meeting was to address conservation issues and this meeting was to address road issues. A letter from Nancy Carney, Deputy Fire Chief, outlined the issues that had concerned the Fire Department, noting that the plans meet the FFD specifications. She said the new plan was satisfactory even though specs are different from those outlined in her letter. Landy asked if the fire pond needed to be cleaned out and Carney responded that the Fire Department has authority to dredge if necessary but usually ponds are OK for 10 – 20 years if brush and vegetation surrounding the pond is cleared regularly by homeowners. The Fire Department clears the intake pipe each time it is used.

Mr. Rogers pointed out the detention basins for runoff that will be treated using a grass swale before entering the wetlands. Grasewicz said the geometry of the road conforms to regulations, and a note is needed to locate sub-drains on the plat.

Pini asked if the Conservation Commission had comments on the new plans. Carmen Yon said each revised plan is an improvement over the last and each has a lesser impact on the wetlands.

Gray asked about access to the common land. Mr. Sheldon clarified that the Board wanted the land to be in a homeowner’s association ownership rather than Town ownership. Neither the Town nor the Monadnock Conservancy is interested in the land at this point. Mr. Yon said this is not land the Conservation Commission would pursue for preservation. This land abuts the rails-to-trails trail.

Mr. Sheldon noted the public has a right to access common land in current use and can do so from the trail, but may not have access via the road or private land. He said he would draft a homeowners association agreement (HOA) for the Board’s review. Silverman said they needed to be clear that the common land will not be logged off. Mr. Filipi said he had no plans to log that land. Mr. Sheldon will put that in the HOA. This agreement will also cover road maintenance, fire pond maintenance and common land ownership/stewardship. The document will be reviewed by the town attorney.

Mr. Sheldon raised the issue of bonding for the road. Mr. Filipi would prefer a letter of credit. Silverman said the Board will explore the issue and get back to him. Mr. Sheldon said a letter of credit usually expires in a year and is renewable.

He listed the items remaining to be approved: 1) the Homeowners Association Agreement and 2) bonding the road. Mr. Drew will submit the revised subdivision plan to the state and Mr. Sheldon asked that the subdivision be approved subject to state approval, if that would delay approval otherwise.

Grasewicz asked about a site specific permit from the state and Mr. Rogers said that he expects the project will disturb less than 100,000 square feet, so nothing is required; however, he will file a notice of intent to disturb with the EPA. He suggested they could stipulate that the road be stabilized before getting building permits. Grasewicz suggested resubmitting the amended drainage plan as an amendment to the Drainage Report submitted to the state on November 15, 2005. He would like to see the revised road plans and took a copy with him.

1. Amendment to Land Use Ordinance Article IV, Section 126-16.1, Wetlands Overlay Protection District, adding definition of ‘structure,’ and redefining buffer zone.

The Conservation Commission reported the intent of their proposed amendment is to prevent encroachment on the wetlands buffer zone. Grasewicz said the original intent of the 75 foot buffer zone was to protect the wetlands and was set up so nothing could be done in the wetlands or buffer without supervision. Landy agreed. Mr. Slavik said he thought the original intent was to prevent all building in the buffer as well as in the wetlands. Grasewicz noted that the amendment as drafted would prevent any activity in the buffer and make the ordinance as it stands moot. He thought it would make thousands of acres out of reach. Mr. Slavik said they didn’t intend to prevent driveways but only to prevent drainage; driveways are covered under exemptions.

Mr. Irving, Rockwood Pond Homeowners Association, said nothing in the current ordinance gives the Board guidance in making decisions about the buffer zone itself. Grasewicz disagreed, saying the buffer was to insure every situation is reviewed. He added that originally the Board thought the ordinance would allow the Conservation Commission to handle many situations within the buffer zone. He said the ordinance does protect the wetlands with a 75 foot buffer zone, without which one would need only to go to the state for permission to build in the wetlands.

Pini asked if a compromise was possible, perhaps a 25 foot no build zone and a 50 foot review area. She didn’t think the Board was ready to propose a 75 foot no build zone.

(e) No structure or building greater than one hundred square feet in area can either be erected in or moved onto a wetland or within the 75 foot area bordering the wetland.

Structure - a combination of materials assembled to give support, shelter or enclosure of persons, animals, goods or property of any kind, such as buildings, towers, masts, sheds, roofed storage areas, swimming pools or other objects or equipment that will adversely affect the wetland values that the WPOD is designed to protect, but not including driveways, walkways, signs and fences, and accessory facilities associated with the provision of utilities such as drains, wells, transformers and telephone poles.

2. Amendment to Land Use Ordinance Article III, Principal and Accessory Uses, Section 127-11, to further define ‘retail’ uses and delimit sizes for commercial development.

W. Antique/Craft Shop - an establishment engaged in displaying and selling~antiques, crafts, or similar items,~within a building, to the general public or business establishments.

A. Retail store: an establishment engaged in displaying and selling goods or merchandise within a building to the general public or to business establishments, which goods or merchandise are not intended for resale, except that a garden center, florist or commercial greenhouse may have an open-air display of horticultural products. All buildings shall be limited in size to a maximum of forty thousand (40,000) square feet in gross floor area. This limitation shall be applied as follows:

A. ~~~ The forty thousand (40,000) square foot limitation shall apply to individual retail stores for which permits are sought and also to the cumulative sum of related or successive permits for retail stores that are part of a larger project, such as piecemeal additions to a building or multiple buildings on a lot or adjacent lots.

B. ~~~For purposes of this section, the gross floor area of a retail store shall include gross floor area and the area of all portions of the site outside of the exterior walls of buildings used for the display, storage, or sale of any goods, wares or merchandise.

C. ~~~ The gross floor area of adjacent stores shall be aggregated in cases where the stores (1) are engaged in the selling of similar or related goods, wares or merchandise and operate under common ownership or management; (2) share check stands, a warehouse, or a distribution facility; or (3) otherwise operate as associated, integrated or co-operative business enterprises.

Stores over 15,000 square feet are required to submit market feasibility and traffic impact studies by an independent consultant chosen by the town, the cost of which is to be paid by the developer, and include a plan for reusing the building should the retailer vacate the space.

The Board reviewed the proposed changes. Following discussion of the section on off-premise directional signs, Silverman said he thought that section needed more work, because so many houses in Fitzwilliam have home businesses and off-site signs for each would be messy. The Board agreed and eliminated that section of the proposed amendment, which now reads as follows:

Section 127-31 Change existing to - PROHIBITED SIGNS: This section intends to list specifically some prohibited signs. This list is not meant to be inclusive. Rather, it should be representative of the kinds of signs, which are prohibited in the community. The following are examples of prohibited signs:

A. Substitute the following for existing paragraph - Any off-premises sign advertising or identifying a non-agricultural business, including off-premises directional signs bearing advertising or which are not a part of an approved sign plan.

D. Delete last sentence and substitute: There are three exceptions: the traditional moving signs of a barber pole, signs showing temperature and time and open flags as described in the exemption section.

Add a new O. Signs attached to fences, trees, utility poles, rocks or other parts of a natural landscape, or in a position that will obstruct or impair traffic or in any manner create a hazard or disturbance to the health, safety and welfare of the general public.

Add the following: (especially height, set back and other restrictions) to the end of the introductory sentence so it now reads: The following types of signs do not require a permit, but which nevertheless must comply with the provisions of this chapter, (especially height, set back and other restrictions).

11. Substitute for existing paragraph: Flags, usually 3 feet by 5 feet in size and usually red, white and blue in color, and solely containing one word such as open, antiques, food, or restaurant are permitted. Properties are limited to one flag unless the property is located on a corner and has two (2) sides on a public way in which case the property may use two (2) flags.

Add new 17.Accessory signs such as “open, closed, sale and the like”, not exceeding three(3) square feet in area, and which are attached to signs for which permits have been issued.

Add new 18. Yard Sale and private owner merchandise sale signs for garage sales, tag or estate sales, and auctions, not exceeding four(4) square feet of sign surface area for a period not exceeding 7 days.

B. Wall Sign or Individual Letter Sign: ……….. The length of signs of businesses occupying other than the first floor of a building shall not exceed eight (8) feet. Delete last sentence.

Create three paragraphs - (1) Delete last part of first sentence starting with ‘provided’ and ending with ‘same lot.’ Change second sentence to The display area of a freestanding business sign shall not exceed thirty-two(32) square feet,……

Freestanding business signs shall be permitted in the Village Center Business District provided that it is not larger than twelve(12) square feet in area and ………………

(2) A single business, single building, which is located on a corner lot may have 2 signs facing each public view. The total area for each sign is not to exceed thirty-two(32) square feet.

(3) A group of 2 or more businesses and/ or industrial building may have one sign per entrance from a public road. Each sign is limited to a maximum of thirty-two (32) square feet of sign surface area and must be free standing. Individual occupants with a building or collection of buildings may have, in addition, one (1) sign with up to six ( 6) square feet of sign surface area per occupant on the exterior of the building. In addition to the above, each individual occupant may have one (1) sign with up to two (2) square feet of sign surface area at its rear entrance.

Substitute the following after the first sentence in paragraph: Only one (1) sign per premise, not to exceed four (4) square feet in area…………………..All such signs are subject to any restrictions as to lighting etc., provided such signs conform in all other respects to the provisions of this chapter. All Home Occupation signs within the Historic District are subject to Historic District Commission approval.

Add B. Fines. Violations of the sign ordinance within this chapter shall be punishable by a fine of ten dollars ($10.00) for each offense. Each day that such violation continues shall constitute a separate offense. All other violations of this chapter……………….