PLANNING BOARD MEETING
APRIL 4, 2006
Members present: Terry Silverman, Chairman, Robin Haynes, Carlotta Pini, Suzanne Gray, Diane Schott, and Tom Parker, Selectmen’s representative.
Others present: Nancy Carney, Deputy Fire Chief, Paul Grasewicz, alternate
Call to Order: The meeting was called to order at 7:05 p.m.
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.
Mr. Filipi and Mr. Sheldon, attorney, discussed recommendations of Gary Kinyon, town attorney on this case, regarding the covenants and the performance bond.
Gray clarified that the driveways will be maintained by individual lot owners. Mr. Sheldon agreed with Mr. Kinyon that covenants contain both private matters that are of concern to lot owners and other matters that are of concern to the town. The restrictions on the private land are intentionally general he said.
Parker said that the Board of Selectmen would prefer to have the common land assessed for tax purposes by taxing each owner a 1/8th share of the total common land share, rather than to have the common land assessed as a whole, with taxes paid from homeowner association dues. Mr. Sheldon agreed that would be their preference as well, but it is up to the town to decide. Parker added that he would like the deeds to reflect that if the town takes a lot for back taxes, the town won’t be subject to homeowner assessment fees, and the land will not be used by the town for its own purposes, like for housing indigent people, but will be sold. Further, he thought the deeds should indicate that the road is a private road.
Mr. Sheldon said any deed he wrote would grant the owner a right to use the road. Parker said he wants it clear that the private road is not town maintained. Sheldon said deeds talk about access, the right to cross and re-cross on a private road. Landy clarified that the deeds will refer to the need to belong to the homeowners association. Mr. Sheldon said the right-of-way will be in the deed; the other issues are legitimate and are clearly documented in the covenants.
Since there will be eight lot owners, Pini asked what would happen in the case of a tie vote in the homeowners association. Mr. Sheldon responded that critical votes of the association will require a ¾ vote.
When asked if articles of concern to the town needed to reference town ordinances, Mr. Sheldon said covenants do not supercede town ordinances and everyone living in town needed to obey town ordinances. Landy said the town was concerned primarily about the fire pond and the road. Mr. Sheldon said he had no problem adding a clause about the town’s authority to enforce those issues of concern to the town. The Board agreed they would like that clause included.
Silverman said Mr. Kinyon had noted the Bank’s letter regarding the performance bond protected the Bank, but he wasn’t sure it contained safeguards to protect the town. Silverman said the Board will follow the Kinyon recommendation to have the Bank and Mr. Sheldon work out the details in keeping with the project. Mr. Sheldon had spoken with the Bank after talking with Mr. Kinyon, and the Bank is amenable to changing the renewal notice period to 60 days and to adding a clause referring to the laws of the state of NH. Mr. Sheldon said the Bank will not change the location at which the bond is to be presented for payment from Burlington, MA, adding that the town did not have to present a request for payment in person.
Silverman noted the need for specificity in the work to be covered by the bond. Mr. Filipi agreed the bond would cover the road construction and fire pond construction.
Regarding the term of the bond, Mr. Filipi is willing to have periodic checks on progress. Mr. Sheldon suggested having a meeting in January 2007 to discuss status of construction and to serve as a reminder that the bond may be coming up for renewal. Mr. Filipi expects two-thirds of the road construction will be completed in 90 days, but the last inch of paving cannot be completed immediately for engineering reasons. He thinks it may not be completed until May 2007.
A completion date of April 30, 2007 was set, with an automatic renewal of the performance bond, if necessary. Renewal is automatic unless called by the Bank, for reasons of credit worthiness.
Silverman moved, Gray seconded and the Board approved the Filipi subdivision, subject to the following conditions:
1) an understanding will be conveyed to lot purchasers that the town has no interest in taking over the road;
2) the Planning Board will work with the Board of Selectmen to work out the manner in which the common land will be assessed and taxes paid;
3) a satisfactory resolution is reached on the performance bond letter of credit between the Bank and the Town;
4) the subdivision receives state approval for the final revision of the plat;
5) The Planning Board will sign the mylar when conditions are met.
Nancy Carney will check with 911 mutual aid about the road name, proposed as Karl Lane.
Consultation: Ann Cramer dropped in the Planning Board meeting and asked the Board to clarify the town’s new livestock ordinance. Ms. Cramer said her neighbor, in the Residential District, had a horse and poultry on her property. She wondered how the ordinances applied in this situation. Under town ordinance Article III, Section 127-8 A. Agriculture, states that the raising of livestock on less than 5 acres is not allowed. Pini clarified that in her opinion that ordinance refers to commercial agriculture and livestock uses. The Planning Board had met with Ms. Cramer’s neighbor prior to town meeting, when the new ordinance was passed, and discussed her plan to keep one horse on her four acre property. As in other cases, the Planning Board has allowed
the keeping of one horse on less than five acres for recreational purposes providing the conditions were acceptable for the animal and neighbors. The ordinances are vague on this point, but Silverman said the Board was trying to liberalize its control over livestock with the recommendation of the new ordinance. Gray said the Board wanted to make the ordinance more specific. Under the new ordinance, livestock, including fowl, can be kept on one acre or more, but a special exception is needed in other districts. Ms. Cramer said she supported the new ordinance, but had misunderstood the Planning Board’s position and the sequence of events. She will bring the issue of the poultry to the Selectmen.
Appointment: Dorothy Zug to discuss Community Forum, present maps to the Board, and discuss Growing Greener, by Randall Arendt.
Ms. Zug presented every Board member with an 11X17 map of natural resources and conservation lands in Fitzwilliam. They have been given to the Selectmen as well.
Planning for the Community Forum, “Tomorrow by Design,” is moving along, coming to fruition. Twenty people are working on the various subcommittees. An article by Rosalind Slavic appeared in this month’s town newsletter and a flyer was inserted inviting everyone to participate. The flyer logo is the product of a collaboration between Frank Bateman, Coni Porter and one of her students. Dorothy and Eleanor Vander Haegen were interviewed for an article in the Home Companion section of the Keene Sentinel and another article will appear in the Monadnock Shopper.
The committee has actively sought a diverse cross section of residents to participate in the Forum and with a wide variety of voices coming together, she expects to see both short and long term projects come out of the Forum.
All members of the Steering Committee have made contributions in support of the Forum and the town supported an article appropriating $6,000 to fund the Forum.
Ms. Zug urged the Board to get a copy of Growing Greener, by Randall Arendt. It’s a book she enjoyed and one she thought the Board would like.
Minutes: The Board reviewed the minutes of the March 21, 2006 meeting. Haynes moved, Pini seconded and the Board approved the minutes as written.
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.
Silverman opened the hearing noting that questions of intensification of use, which is something he wanted to get out of the way completely, have been addressed by the ZBA and they have sent the applicant back to the Planning Board to complete the site plan review. He asked Mr. Davis, attorney, if his client, Mr. Patel would join the Board at the table.
Silverman reviewed the site plan to date: the southerly driveway has been eliminated for the purposes of use by the proposed store; the northerly driveway has been expanded to accommodate truck traffic safely. Silverman suggested stockade fencing along the southern side of the parking area to screen vehicle traffic lights from the neighbors and to screen the neighbors’ houses from view. He didn’t think the fencing would negatively impact the store’s visibility from northbound traffic.
Mr. Davis indicated that his client had indicated previously that he’d be willing to erect a fence. Their only concern regards room for plowing snow. He wondered if a four foot fence would be sufficient. Haynes suggested a six foot fence would screen truck and SUV traffic lights better. They agreed. Mr. Taylor, current owner of the property, said that fencing wasn’t needed except in the winter, as vegetation screens the neighbors for the rest of the year. Silverman noted that vegetative buffer zones tend to disappear.
Mr. Niemala, abutter, expressed concern that his property will be exposed to increased store traffic. He intends to sell his ten acre lot that directly abuts the proposed store and any house built on the site will be close to the store. He believes the lot will lose value because of it. He added he didn’t think the traffic issue had been resolved yet. There will be about 153 cars total entering and leaving the site during peak hours; it concerns him.
Silverman remarked that the Board is trying to work with the neighbors and Mr. Patel to come to compromises that satisfy both parties. He added the ZBA cleared the way for the Planning Board to approve the store.
Silverman addressed Mr. Patel, saying he is concerned that when the Fitzwilliam police department goes on stand-by at 11PM the store may be vulnerable if it stays open until 11 PM. He asked Mr. Patel if he would consider shortening the hours of operation to 10 PM, to better insure store security and to be kinder to the neighbors. Mr. Patel agreed.
Mr. Davis distributed a memo stating some of the conditions they felt would be imposed. That document is part of these minutes. The conditions are:
Hours of operation - 7 AM to 10 PM;
DOT approval of the driveway modification;
No sales of gasoline or diesel fuel;
All necessary permits secured;
Lighting on the sign will be altered to shine from the top down;
Apartment will continue as a grandfathered use through the transition of owners, until the matter can be resolved (the apartment may be part of a security plan);
Two other conditions will be added at the Board’s request:
A six foot stockade type fence along south perimeter of parking lot;
No additional exterior lighting on building from what exists now, but wattage of covered walkway lights may be increased;
Pini asked if this legitimized the apartment in future considerations. Mr. Davis replied no, it means his client will not have the apartment as part of the site plan, but will seek the proper permits to use it if possible. It maintains the status quo for that space.
Silverman said the Board also does not want the parking lot illuminated.
Gray asked about temporary signs. Landy said the town permits temporary signs if they are put down daily. Pini added that some of the signs at the store across the street are not allowed. Landy noted that product advertisement signs are not allowed and Haynes added banners were not allowed. Mr. Davis noted that Mr. Patel has had no violations at any of the other stores he owns.
Mrs. Coburn, abutter, stated that headlights from vehicles exiting the store will shine into her house. She lives across the street from the proposed store. Lights will cross her living room late into the night and there is no way to block it from her home. She believes the parking lot is so dark that the owner will want to put up parking lot lights. Silverman said they may suggest ground lighting.
Mr. Madson, neighbor, said other stores in town are open late only in the summer. He wondered if the owner would consider keeping the same hours as other stores. Silverman said we have to allow Mr. Patel to run his own business.
Scott McLaughlin, abutter, said he thought the Board should differentiate between retail uses, that a general store is one thing, but selling controlled substances is another. Silverman said the ZBA decision has precluded the Planning Board from considering these issues. Mr. McLaughlin wondered about liquor sales so close to a school – he and Mr. Madson both home school their children.
Mr. Niemala thought that lighting would be a problem, likening it to Mr. Mike’s lighting. He added that noise is a significant problem now, and he surmises it will only get worse. He urged the Board to do something about it before the problem gets worse.
Mrs. Coburn asked why the Board sent the case to the ZBA – didn’t the Board think it was a problem? Pini answered that the Planning Board did think it was a problem and sent the case to the ZBA; Mr. Patel appealed the decision and the ZBA ruled against the Planning Board, adding that she disagreed with the ZBA but they have made their ruling.
Mr. McLaughlin suggested that this might be a good time to insure that old junk on the property is cleaned up and that an abandoned well is properly capped. Silverman suggested that if it has an impact on the neighbors maybe the current owner would like to clean it up. Mr. Taylor said he wasn’t sure it was even on his property.
Mrs. Coburn asked it the Board was leaving the possibility open for an apartment. Silverman said the legality of the apartment is in question but it has been in existence for years and exists today. Mrs. Coburn said it exists today because someone was deceitful. Silverman responded it wasn’t the current owner who was deceitful, but the timeline for the apartment is in question leaving the issue of a grandfathered use in dispute. He added any application for an apartment, which may be a change in use, will need approval, but wasn’t sure how an apartment would greatly increase the burden on the neighbors or the land. The septic system is sufficient to serve an apartment.
Mr. Niemala asked about a limit on the number of people who could live in the apartment. Silverman said the town doesn’t limit the number of people who can live in our homes. This is not a question for the Board, but health codes apply.
Mrs. Coburn asked if Mr. Patel owned a store in Marlboro, NH and he said no. Mr. Niemala raised the issue of being concerned about who his neighbors were.
Silverman brought the discussion of neighbors to a halt saying Mr. Patel will be running his business on that property and he probably will not do anything that will reflect negatively on the business.
Mrs. Coburn asked if the Patel hearing had been continued to tonight. Silverman said it had been continued pending the outcome of the ZBA hearing, adding abutters have the right to appeal any decision of any Board. He thought Mr. Patel would try to be a good neighbor and he hoped the neighbors would try to be good neighbors as well.
Silverman moved to approve the Patel site plan with the following conditions: Pini seconded.
1. Site Plan subject to all matters as shown on the Site Plan prepared by Paul Grasewicz dated 12/19/05, revised 1/17/06 and 3/4/06 being substantially completed at the premises previous to operation of the convenience store.
2. Hours of operation - 7 AM to 10 PM;
3. Six foot stockade type fence installed along south perimeter of parking lot;
4. DOT approval of access/egress, with any major modifications suggested by DOT subject to Planning Board approval;
5. No gasoline or diesel fuel pumps on the premises now or in the future;
6. All necessary permits to operate a convenience store secured and maintained;
7. Lighting on the exterior sign altered to shine from the top down;
8. The existing apartment will not be used as an apartment once the convenience store commences operation, provided the applicant may seek modification of the these conditions in the future to use the apartment as a residence; and if the applicant, at the time that the convenience store commences operation, has an application or request relative to the continued use of the apartment as a residence pending before the Planning Board or other Fitzwilliam municipal board, then the existing apartment may continue to be used as a residence until either the final approval or denial is issued by all applicable boards;
9. No additional exterior lighting on building than exists now, but wattage of covered walkway lights may be increased;
10. The southerly driveway will not be used and appropriate signage will be posted;
11. Corrections of hazards (abandoned well, junk) to be completed prior to opening;
12. Any outside sales will need a site plan review by the Planning Board.
Pini said Mr. Patel would need to come back to the Board if he decided to fill propane tanks. Mr. Patel and Mr. Davis agreed to do so.
The Board voted on the above motion and approved the site plan.
Clarification: Parker asked about the new livestock ordinance, wondering if it covered poultry. The interpretation is that it does, under the ‘other species of animal susceptible of use in the production of meat and meat products’ phrase. Pini wondered if people who had chickens at the time the ordinance was passed would be grandfathered.
Election of Officers: Landy moved no change to current officers. Schott seconded and the Board approved continuing with the current officers. Silverman, chairman; Pini vice-chairman; Haynes, secretary, were re-elected.
The meeting was adjourned at 9:00 PM.
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