Town of Fitzwilliam, NH - Planning Board Minutes 03/07/06

Mr. Ibell explained he had an opportunity to acquire a piece of land that will enable him to build a driveway to access his home, which he now accesses along a right of way. He plans to acquire a strip fifty feet wide for the driveway.

Administration: Four editorial changes to the subdivision regulations were discussed, affecting Sections 221-4, 5, 12, and 19. The Local Government Center will be called to see if a public hearing is necessary. The Board found the changes acceptable.

Subdivision 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.

Gary Sheldon, attorney, and Arnie Filipi were present. Mr. Sheldon referred the Board to the letter from the project engineer, Mr. Rogers, and asked the Board’s consideration of the waivers requested.

Silverman asked about bonding for the road. Mr. Sheldon presented a letter from the Vice President of Banknorth confirming that Mr. Filipi has the necessary resources to obtain a Letter of Credit to bond the road. Mr. Sheldon requested that subdivision approval be conditioned on posting the Letter of Credit for the performance bond. Silverman said the Board would have an attorney confirm the necessary language for the bond. Mr. Sheldon said his client knew that nothing could occur on the land until the bond was in place.

Silverman asked about a third item, the homeowners’ agreement. Mr. Sheldon presented a copy of the proposed agreement. He proposes a Declaration of Covenants and Restrictions that requires Mr. Filipi to be responsible for managing the property until all lots are sold, at which time a voluntary association be formed by the homeowners who will name a manager. By virtue of buying a lot, the homeowner will be obligated through their deed to accept the terms of the covenants and restrictions.

As lots are sold, homeowners will assume their 1/8^th share of the expenses of managing the common land, per the covenants and restrictions. Landy asked if there was a legal structure created that would be responsible for the management of the common land. Mr. Sheldon said no, homeowner deeds make them collectively responsible, somewhat similar to a condominium association. However, Mr. Filipi is in control until all lots are sold.

Silverman asked if there were provisions for dues and liens. Mr. Sheldon said there were, adding there was a provision for liability insurance separate from what individuals would have for their own property, including their 1/8^th share of the common land. He noted that this was a comparatively small parcel of common land and a legal association wasn’t necessary to manage it.

While they may want to edit it they don’t plan any major changes to the document. When asked about public use of the common land, Mr. Sheldon said there was no specific provision for that, but it doesn’t restrict it either. He added the document says the common land will not be clear-cut, and must be maintained in its natural state; it allows individuals to use the land. Silverman said an attorney will review the document.

The Road Agent recommended that the project engineer monitor road construction and report progress to the Road Agent. The Road Agent will check the site as work progresses. Pini noted it is significant when the project engineer signs off on the work he designed.

The first waiver is for maximum road length exceeding 600 feet per section 221-25E. of the Code of the Town of Fitzwilliam. The total length of road proposed is 927.05 feet to the center of the cul-de-sac.

The second is a waiver from the minimum road grade of 1% per section 221-25G. of the Code of the Town of Fitzwilliam. Due to the extremely flat nature of the land coming off NH Route 119, a slope of 0.5% grade at the entrance to the site will allow an alignment that will avoid any wetlands impacts.

Silverman noted that the Board discussed the waivers in previous meetings and the request can be found in a letter from the engineer, Ed Rogers, dated February 8, 2006. It is a part of these minutes.

Silverman told Mr. Filipi he was all set with the waivers and the Board will get back to him on the performance bond and the homeowners’ agreement. He asked that copies for the Board members be made available for their review before the next scheduled meeting. The public hearing was continued to April 4, 2006 at 7 PM, giving time enough for legal counsel to review the performance bond and the Board to review the homeowners’ agreement.

Mr. Heikken presented a map of the property and indicated where subdivision lines are planned. The subdivision will create two lots, one a hammerhead lot. He said no test pits have been dug yet but they are planned.

Landy asked if wetlands had been delineated yet. Mr. Heikken said Carl Hagstrom is doing that. Clukey said he thought there was a brook on the back of the property. Silverman indicated that acreage and wetlands were two issues to consider, to comply with the town’s dimensional regulations; and that slope was probably not an issue. He said Mr. Heikken would want to confer with the Road Agent about the two driveways.

When asked if the Board saw any problems, Silverman said the Board didn’t have enough information to decide yet. He told Mr. Heikken it was up to him whether to go ahead with the test pits, and asked him to be sensitive to the stone walls on the land. Mr. Heikken said he would be.

Preliminary consultation: Boundary Line Adjustment between properties owned by Vaal (Map-29, Lot-19) & Grier (Map-29, Lot-23), located on Collins Pond Road, conveying 13 acres of Grier land at the north of Vaal property to Vaal. All property is in the Residential District.

Paul Grasewicz presented the plan. There are three options under consideration and the lot owners are in negotiation for the amount of land to be purchased and transferred. Option one transfers 13 acres, option 2 transfers about 3.5 acres and option 3 transfers about 2 acres. None of the transfers will affect minimum lot size for the transferring owner. No land with frontage on a town road will be transferred; the Vaal lot is landlocked now and will continue to be so.

When asked, Grasewicz speculated that perhaps the reason for the transfer is to get closer to having frontage on a road. He added that the land may be logged too. He reiterated that in all three options, only acreage is transferred. No frontage land will be transferred.

Ms. Hietala explained that she wanted to bring her rescue horse home. She plans to have only one horse. She indicated on a map where her home, barn, pasture and wetlands are located. In response to a question from Silverman, Ms. Hietala said the barn is 250 feet from the lot line. She indicated where her neighbors’ homes were located as well. Pini and Gray said they didn’t have a problem with this proposal, and remaining Board members agreed.

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.

Gary Taylor was present and recorded the meeting for his attorney who couldn’t attend. Mr. Little, attorney for Richard Dwinell, Mr. Dwinell, Mr. Patel, abutters and other interested parties were present in the audience.

Mr. Davis, attorney for Mr. Patel presented the traffic study with Paul Grasewicz. He explained his client had requested a postponement of the February 7, 2006 meeting because the state had not responded to their requests for information in time to prepare the traffic study for the last scheduled meeting.

Grasewicz said they examined two aspects in the traffic study; traffic impact and sight distances relative to the driveways. They conducted an as-built survey of the site and generated sight line profiles for the two driveways, looking north. There is no issue with lines of sight looking south. Both driveways have more than 800 foot sight distance in that direction.

The state requires a 400 foot minimum intersection/driveway sight distance in both directions for access drives, and both driveways meet those standards. However, applying stricter standards set by the American Association of State Highway and Transportation Officials (AASHTO), which include speed and geometry considerations, the sight distance for a vehicle traveling at 65 miles per hour is a 645 foot stopping sight distance for level areas. The northerly/upper driveway exceeds AASHTO standards looking north. The existing southerly/lower driveway falls short of the AASHTO requirement with only 620 feet available, due to a crest in the land to the north. For this reason the site plan has been modified to eliminate the lower driveway entirely through the use of a berm and signage. An abutter to the south needs to have access using this driveway so the driveway itself will stay, but may not be used for the proposed convenience store.

The average speed was calculated, using several factors, at 59 MPH, with 85% of drivers going 64 mph or below. Based on trip generation data, 78 vehicles per hour (peak) will be entering the site. The bulk of this traffic will be southbound pass-bys having no problem entering and exiting the site. An estimated 12 northbound vehicles per peak hour will be turning left off Route 12 into the site. Based on turning data, northbound queuing on Route 12 is not anticipated. Proposed volumes do not warrant a turning lane or for the foreseeable future.

The site plan revision includes widening the upper driveway, a new one-way internal traffic pattern for trucks, with wider traffic access, a new parking design and a gravel walking path for customers. There are 20 parking spaces proposed, for customers, employees and the apartment.

Gray asked about the location of the septic system in relation to the parking area. Grasewicz indicated the area on the plan and said traffic will run next to the septic area but construction will not disturb the system. Pini clarified internal traffic patterns on the plan, noting the wider aisles for turning. She like the fact that trucks did not have to turn around on site.

A large boulder and berm will be constructed at the lower driveway to limit access to proposed store. That driveway is OK for residential use but not for a store. ‘No Parking’ signs will be used to keep customers from parking on the road and in the state right of way. ‘Do Not Enter’ signs will be used on the lower driveway to inform customers.

Silverman asked about the proposed store hours of operation. Mr. Patel said the store would be open between 7 AM and 11 PM. Gary Taylor noted the hours of operation for Bloomin’ antiques are 10 AM to 5 PM.

Landy asked about lighting. Mr. Davis said they did not propose any changes to the lighting, except in bulb wattage. They do not anticipate lighting the parking lot as afternoon will be the busiest time, and Saturdays and Sundays. Traffic counts do indicate a drop in the number of cars traveling on the road after 5:50 PM.

There was some discussion about summertime being busier and Grasewicz said his numbers factored in the increase in volume for the summer. Taylor responded to a question about volume on the days the outdoor antique market was held – 65-80 cars set up for selling, and another 70-100 cars going in and out shopping during a two hour period, saying there was never a traffic problem. Silverman noted that the event itself may have mitigated any traffic problems.

Grasewicz said that this type of store would probably not generate any new traffic on Route 12, as it is not considered a destination type of store; the customer base will be primarily local commuters and MA traffic for beer and cigarettes. An increase in store size may increase traffic.

Silverman asked Mr. Davis if there was anything else he wanted to present. There being nothing more at the moment, Silverman said the Board had a few issues to discuss. First, the 90 day time limit in our subdivision regulations for acting on a site plan or subdivision application must be changed to 65 days per RSA 676:4 I(c)(1). The Board accepted the site plan application as complete on January 3, 2006, making the deadline March 9, 2006. He asked if Mr. Davis’ client would agree to an extension.

Mr. Davis said his problem with an extension is that he’s not sure what else the Board may need; they have the traffic study. Silverman said the Board had just received the study, and they haven’t had time to review it yet. He added the Board has not yet resolved the legal status of the apartment and they are still considering the expansion of use issue.

Mr. Davis asked if the Board was asking for the extension so they could deliberate or to continue the public hearing. Mr. Little interjected that his client, Mr. Dwinell, had asked Mr. Cynewski to testify in person and he was in attendance to talk about the apartment tonight. There was further discussion on the extension question, with Mr. Davis saying his client had not failed to meet all deadlines or requests, asking again how much time the Board would need for more public testimony. He wondered if the Board could try to complete the public hearing; he wondered how much more the public had to say, would it be15 minutes or 2 hours or….?

Mr. Little reminded the Board that the February 7^th meeting was cancelled because the traffic study wasn’t done, saying that’s why the Board is up against the deadline. Pini, in response to Mr. Davis’ repeated requests for a timeline, said this Board does not deliberate outside of public hearing. Mr. Davis recalled the procedures outlined in the RSAs. Beckwith said she thought it was a reasonable request to ask for a timeline, adding she too was interested in how much more time might be needed.

Mr. Davis said he wasn’t saying his client wouldn’t agree, but to give him informed advice, he needed to know the time needed. Pini noted the Board has unresolved issues to discuss that could shed light on the timeframe. If a special exception is needed that may take more time.

Mr. Davis thought that was a settled issue given the Selectmen’s decision on his request for an administrative decision, and further thought that wouldn’t be part of the public hearing in any case. Silverman said this Board won’t deliberate except in public hearing. Mr. Davis called attention to the distinction between a public meeting and a public hearing. Pini said the Board doesn’t generally close the public hearing before they deliberate. Gray added that the public is very interested in this project and the Board wants to give them all the time they need to be heard.

Silverman noted that if the case goes to the Board of Adjustment the clock is stopped on the site plan review. Silverman then resumed a discussion on the apartment. Mr. Davis asked what, other than the apartment, might the public have input on, and asked again how much time that would take.

Mr. Niemala, abutter, told the Board that he was a manager of a grocery store in MI 53 years ago and the way they attracted customers was to lower prices. He expects the proposed store will do that too to get more customers in from MA. When trying to pull out of his driveway, he said he sometimes has to wait for 10 to 15 cars to go by before there is a lull. He added that he fears that the traffic pattern will be even crazier with traffic entering and exiting the proposed store; there is already a traffic problem and the store will make it worse.

Mr. Dwinell, owner of Bottoms Up, reminded everyone that this was a slow winter, but that usually Route 12 is the main thoroughfare for skiers and snowmobilers, adding that more snow will mean more traffic.

Mr. Little asked if the Board would have the traffic study reviewed. Silverman said the Board would review it. Mr. Little questioned the validity of the study since counters weren’t used, and the study was conducted over four days rather than for 24 hours a day for a week. He added that the weekend the study was conducted there was an electrical outage for much of the weekend, which may have effected results.

Grasewicz responded that a state engineer will review the results whether the Board has an engineer do it or not. The times and dates were selected to get the most accurate data; they chose peak times to count traffic traveling from Fitzwilliam southbound. They factored summertime rates into their numbers to predict the maximum traffic count.

Mrs. Coburn asked if the Board does send the applicant to the Board of Adjustment, would the case come back to the Planning Board. She thought the Board had approved the application. (In fact they had accepted the application as complete, per the RSAs, in order to being reviewing it.) Silverman confirmed that when the Board of Adjustment was finished the case would come back to the Planning Board to complete the site plan review, and the Board would factor in any ZBA decision.

Mr. Davis asked if the public had addressed all their issues and Silverman thought so. Mr. Niemala said the public hadn’t addressed the lighting issues or the hours of operation, adding these would also have a great effect on the neighborhood. Silverman commented that the Board never did have a clear indication of the hours of operation. Silverman asked again if there was anything else from the public.

Gary Taylor said if the Board chooses to delay anymore, and send the case to the ZBA, it could take 2-3 months, costing him the sale of the property. Silverman said the Board didn’t delay here; the Board just received the traffic study and needs an extension to review it. Additionally the Board can’t resolve the possible change in use issue or status of the apartment until it gets an idea of the store’s intended operations and intentions regarding the apartment. He added that the Board had been advised by legal counsel that a change in the intensity of use may constitute a change in use enough to trigger the need to apply for a special exception to change a nonconforming use, per town land use code.

Mr. Davis said his client would waive his request to have the apartment in the building, as a part of this application. He said the Board has already discussed the use for zoning purposes and there is a constitutionally protected right to use this property. He added his client may go to the ZBA for the apartment, but for now this application can waive the apartment.

Pini stated that following the preliminary consultation in July 2005 when the continuation of use issue first came up, the applicant chose to go to the ZBA. Then Board of Selectmen intervened in response to a request for an administrative determination. Since then the Board has met with the client three times, including the first public hearing on January 3, 2006, when the application was accepted as complete. The Board consulted with legal counsel and understands now that an intensification of use can constitute a change in use. Some issues have come out tonight that establish that the hours of operation will intensify and the traffic will intensify, all of which could constitute a change in use. She thought that the Board should consider sending the applicant to the ZBA.

Mr. Davis said that under NH law the intensification of use has to be such that there is a fundamental change in use, that there is a significant impact on the neighborhood, which includes a convenience type store across the street.

Pini said the Board could review the traffic study, meet in two weeks and then decide to send the applicant to the ZBA. She added that the Board has heard from the neighbors that they feel there is going to be an increased impact on the neighborhood, saying she would feel the same way living there. She felt the Board’s initial conclusion was correct and regrets that the Board got hung up on the concept of ‘retail is retail.’

Pini moved, Gray seconded and the Board approved a motion to send the applicant, Mr. Patel, to the ZBA for a special exception under Land Use Ordinance Section 127-35 B, Changing a Nonconforming Use. The vote was two opposed, four in favor.

Silverman will send a letter to the Board of Selectmen requesting an extension of 90 days in which to act on the site plan application. Mr. Davis asked if it was appropriate to approve the site plan conditioned on the ZBA’s decision. Pini said the Board would not know what conditions the ZBA may impose. Silverman said the Board hasn’t reviewed the traffic study yet, and the Selectmen’s decision about the extension has not been made. Mr. Davis asked about the Planning Board’s conditions of approval. Pini said, for instance, the Board didn’t know if the ZBA will condition hours of operation or other operational aspects, and so couldn’t say what the Planning Board may do.

Mr. Little cited a case in which the planning board had approved a site plan prior to a ZBA decision and suggested that was not a good procedure to follow based on the outcome of that case.

Mr. Taylor wondered if the Board had ‘put the Mr. Mike’s people through this rigorous examination,’ suggesting the Mr. Mike’s was a much more complicated site than this one. Silverman said the Board had not requested a traffic study for Mr. Mike’s and that was a mistake. The Board did place a number of other restrictions on lighting, signage and site configuration and monitors it.