Town of Fitzwilliam, NH - Planning Board Minutes 04/17/07

Wetlands hearing: Christopher and Susan Benik application to build within the WPOD on a nonconforming lot of record located on NH Route 119 W, Map 31, Lot 7, Residential and Historic Districts.

Mr. and Mrs. Benik presented their application. The Conservation Commission referred them to the Planning Board because wetlands were affected by their plans to build a house on this lot. They said they have had the wetlands delineated and they have a state approved septic plan that meets town setbacks from all existing wells on abutting property. However, the house site is within the Wetland Protection Overlay District, 31 feet from the delineated wetlands.

Haynes noted that the front setback requirement is 50 feet in the residential district. Mrs. Benik said the Conservation Commission recommended an alternative site for the house. Mr. Benik noted that most of the houses on Route 119 at that point are closer to the road than 50 feet.

Silverman noted that the lot is nonconforming and they may need a variance for the WPOD setback. Parker noted that while the nonconforming lot was exempt from certain yard dimensional requirements like area, depth or frontage, they would need a variance for all setbacks if the proposed construction was within front, side and rear yard setbacks.

Jane Roberts, abutter, had spoken to the wetlands scientist when he was delineating the wetlands and asked about the location of her well. She showed him but wanted to look at the plans to see how far the proposed septic is from her well. Her well is about 46 feet from the common boundary. She and Mr. and Mrs. Skelton, abutters to the east, reviewed the plans and Silverman noted that both wells were outside the 75 foot setback from the proposed septic system. Landy noted there was no existing well on the property. Mr. Benik agreed. Landy said it looked like the septic would have to be placed where it was proposed, because of the wetlands and the well setbacks. Parker asked if the state had granted any variance for placement of the septic. Mr. Benik said no.

Silverman moved, Landy seconded and the Board voted to deny the wetland application based on Land Use ordinance 127-34B that a nonconforming lot of record may be built on provided “that yard requirements for dimensions not involving area, depth or frontage of the lot shall conform to the provisions of this chapter for the district in which the lot is located.’

When asked by the Beniks about the next steps, Silverman explained the wetlands application has been denied and to get relief from this decision they should apply to the ZBA.

Pini said they could appeal to the ZBA for a variance from WPOD setback to keep house where it is proposed or move it and get an area variance for the front setback. Silverman noted it was not an easily buildable lot.

Haynes noted the Planning Board does not have jurisdiction to grant a waiver for building in the WPOD. Pini noted the Board has three options under 127-16 D.(3) (b), to reject the application, issue conditional use approval, or refer the applicant to the ZBA. She didn’t feel conditional use was a viable option.

The Beniks asked if the ZBA could decide where the houses should go. Silverman responded that the ZBA can’t change their plan; they can only give relief from a Planning Board decision in individual cases.

Silverman asked if the Board’s intent was to reject the application or refer the applicant to the ZBA. Haynes said she’d refer to the ZBA, but she hasn’t seen the land for herself and feels it was necessary since the Conservation Commission hadn’t done a site walk. Jane Roberts said she thought the land that was always wet was about 10 X 12 feet in size and near her boundary line. Mr. Benik agreed and said that the rest of the wetlands were wetlands soils but not wet. Pini asked if the Board wanted to rescind the previous vote.

Mrs. Benik said they had purchased their house and the lot across the street with the understanding that the lot was a grandfathered buildable lot. They thought they might build there someday and retire into a smaller house, selling the house they live in now. When the town was reevaluated the taxes on the lot doubled and they decided to sell. The lot has always been taxed as a buildable lot. They had it sold several times, only to discover another problem with its buildability. They’d like to sell it as a buildable lot.

Haynes moved, Pini seconded and the Board voted to rescind the previous vote denying the application so the Board can do a site walk. The Conservation Commission will be asked to do the site walk with the Board. The site walk is scheduled on Tuesday, April 24^th at 5:30 PM. The Beniks will be there and will insure the wetland boundary is flagged.

Public hearing: PSNH Site Plan Review to construct a new electrical substation on property located on Route 12 N, Map 18, Lot 29, Light Industrial and Rural Districts.

Mr. Young and Mr. Frazer were present. Silverman entered two letters into the record: one from the VFW authorizing PSNH to share the VFW driveway for access to the substation; and one from PSNH outlining its intention to restrict the use of pesticides and herbicides at the substation property.

Mr. Young noted that they expect the state site specific application to be evaluated with DES comments by the end of the week, which PSNH will turn around quickly. PSNH expect to have final approval in the next couple of weeks.

Silverman said the site walk revealed one spot on Route 12 traveling south where the top of one and maybe two poles could be seen. They were also visible from the third Gap Mountain peak. Mr. Frazer said visibility of the station from Gap Mountain Road should be minimal, as the station is 300-400 yards from where the road changes from a Class VI road into a trail and it is heavily wooded there.

When asked about input from the Fire Department, Nancy Carney, Deputy Fire Chief, said that both Bill Prigge and Ed Mattson were present at the first public hearing and that the Fire Wards were OK with the plan as presented. Silverman said that the Fire Department would secure the perimeter in case of a fire.

Mr. Frazer said security cameras will monitor the area continuously. A gate will be installed near the Route 12 entrance, limiting access and the substation itself will be fenced. The gates will be alarmed to notify the Manchester control center. A propane fueled generator will be tested periodically as backup, and there will be a battery backup for switches and motors. When asked if the monitoring is related to terrorism, he said no, but there will be a fourth autotransformer on site that could be called into use within a couple of months should it be needed.

Pini asked about night time lighting. Mr. Frazer told her PSNH rules call for lighting that will allow authorized personnel to walk through the property safely at night. If work needs to be completed at night, portable lights will be brought in. The lights will be up high and shielded, aiming at the ground. Illumination should not go above one candlepower at the fence line.

Gray asked about noise and Mr. Frazer said there will be some hum caused by the corona affect and some buzz associated with the transformers, but none of it will reach above normal background noise, except possibly at night when Route 12 traffic noise is at a minimum.

Silverman asked about the right of way areas and pesticide use. Mr. Frazer clarified that their letter regarding pesticide use applies only to the land within the fence line. The right of way is for power lines already in place, some of which belong to National Grid. PSNH plans to mow early to keep vegetation low, which may lessen the need for spraying.

Mr. Young said that the site plans will be finalized after the site specific application is approved by DES. Then they will ask the Planning Board to sign off on the plans. The state does not require site specific approval before tree clearing starts, if the Planning Board agrees. Mr. Frazer said the construction timeline is driven by the Vermont Yankee plant’s scheduled break. He anticipates transformers will arrive in April 2008 with the project completed by June or July.

Pini asked about protection of wetlands during construction. Mr. Young said the state prefers using silt fences alone or doubled up, rather than hay bales. On-site stumps will be ground up as mulch to be used instead of hay.

Mr. Young pointed out some minor changes to the plans, including a fence that runs along the top of the retaining wall, four inch plastic conduits underground to bring electric and telephone wires in from Route 12, rip rap at the entrance to the VFW to transport drainage to a ditch along Route 12, and pole structures that have been reoriented with no change to the WPOD encroachment. No grading will be steeper than 2:1.

Mr. Frazer hopes to have a document from DOT and the site specific approval for the next meeting. He will be asking the Selectmen for an intent-to-cut soon. Chips will go to a wood burning plant and ground stumps will be kept on site as mulch to control erosion.

Public hearing continued: Steve Filipi proposes a nine-lot subdivision of property located on Upper Troy Road, Map 15, Lot 6, Residential, Rural and Historic Districts.

Silverman said that after the site walk, in his personal opinion, the proposed plan looks like it covers what the Planning Board has asked for. He noted that Mr. Filipi has proposed a different location for the road entrance and it seems better. Mr. Filipi said the new entrance allows the road to be about 100 feet shorter and the roadway better conforms to land contours. This entrance will avoid cutting into the earth for the roadway.

Haynes noted that it would also allow a nice stand of hardwoods to remain. Mr. Filipi said there will now be space for a parking area for public use of the trails in the area. Paul Grasewicz is doing the road engineering and will be present at the next meeting. A letter from Sharon Monahan, wetlands scientist, addressing wetlands along the proposed roadway was entered into the record.

Haynes asked about tree cutting in the aquifer protection zone (APZ), so identified on the plan presented by hydrologist Chris Covel. (Fitzwilliam does not have an aquifer protection zone or ordinance.) Mr. Filipi said there will be no structures and no other access points in the APZ, except as necessary to access a Town well in the future, however, land owners may want to clean up dead logs and downed trees on their property in the APZ. Gray noted that water from yesterday’s rainfall was flowing heavily down the road site and culverts couldn’t handle the flow. The flow crossed the road and dumped into neighboring lots, potentially polluting their wells. She added that water from the northern end of the property flows down crossing two roads and many lots before dumping onto Lower Troy road, potentially impacting many more wells.

Mr. Filipi said this flow is storm water runoff and part of the road engineering challenge is to handle runoff from the hill. The water runoff from the area at the front of the property may be a problem. Gray voiced her concern that a paved road may generate water that has picked up pollutants that will be carried onto many properties, adding that the Planning Board decision may impact people’s lives in the future. Pini said she would like to consult with the Road Agent about drainage as it exists now, noting that the PB has the ability to assess for offsite improvements.

Mr. Sheldon said engineering may not be able to improve the existing situation but will not make it worse. Mr. Filipi noted that there wasn’t room for ditches along the road above the Buonomano house, which made a difference in water runoff management. Mrs. LaFond said she and her neighbors have a tremendous amount of water on their lots; the ground can’t hold it all.

Mr. Sheldon noted this was an existing problem that the town has to deal with; nothing they are going to do will increase the problem. There is a process for exacting offsite improvements and they need to be proportional. Mr. Filipi can’t be held responsible for all the town’s problems.

Mr. Sheldon asked for some sort of indication from the Board about their concerns with density, whether the subdivision will be denied on those grounds. Silverman said there were concerns voiced at the last meeting about the two additional lots. Mr. Sheldon noted that Mr. Filipi has met the regulations and the intention of the Master Plan to have larger lots that preserve the rural character of the town.

Pini pointed out a court case involving Derry, NH wherein a 23 lot subdivision was denied for being scattered and premature. She said that this subdivision with nine lots is proportional given the two towns’ populations. Silverman said that based on the zoning for that area, a scattered and premature designation was unlikely. Pini disagreed and indicated she would like to consult with an attorney about this issue.

Landy asked if the proposed changes to the road would make the road less expensive. Mr. Filipi said not really, adding that following the land contours it will be easier to build. Mr. Sheldon said that even with nine lots the road will be expensive, and there are other costs to consider.

Gray asked what triggers an environmental impact study. Silverman said he thought we would be hard pressed to justify an environmental study on a residential property since the state assumes it will take care of the septic issue and engineering can manage the water flow issue. Mr. Filipi noted that the only thing Mr. Covel, the hydrologist, was concerned about was salt treatment of the road, and the new configuration will keep the slope below 8% along its length and the road will be treated with sand not salt. It will follow the stone wall for most of its length.

Mr. Buonomano asked for clarification of the basis for the changes to the plan that added two more lots. He wondered why the lots as originally proposed couldn’t just be moved back up the hill rather than building a road. Silverman said that a simple driveway wouldn’t be engineered to handle runoff as well as a road would be. Mrs. LaFond said she was concerned about pesticides and other pollutants in the runoff from residential use.

Silverman thought that what is approved here won’t adversely impact what’s already happening. We can ask the town to fix the current situation, and we may ask Mr. Filipi to handle some portion of the cost to improve the situation.

Schott asked who would monitor the restrictions in the aquifer protection zone. Silverman said he assumed the APZ would be in a conservation easement. Mr. Filipi hopes to give an easement to the Water District. Landy asked who would maintain the road. Mr. Sheldon said there would be covenants for each lot. Silverman noted homeowners’ covenants can be written quite strongly. Mr. Filipi said the cost to maintain a gravel road is substantial, adding that he’s sure the people who buy in this development won’t let the road go.

Haynes said she is conservation minded and she sees the subdivision as being in the residential village district and as long as the aquifer is protected and the road is engineered properly, it fits with the density in the village, adding this is the place for the development. Silverman thought the road, if engineered like the one on Route 119, is a good deal for the town.

Ms. Partello said that more homes mean more cars and she is concerned about the intersection of Upper Troy and Lower Troy Roads with Route 119. She said while out walking her dogs, she is routinely crowded by motorists. Silverman said the real problem on that road is people from outside of town taking a shortcut, acknowledging the intersection is a concern. Both Haynes and Pini want to hear from the Road Agent on the intersection too. Mr. LaFond suggested a stop sign on Lower Troy Road. Silverman agreed it was a bad intersection but, like others, it is a reflection of 18^th century roadways and the town would not have the same appeal aesthetically if they were all fixed.

Landy said that short of not wanting the Pinnacle property to be developed at all, he thinks this is a pretty good plan, if we can insure that pollution from lots 8 and 9 won’t get into the aquifer.

Mr. LaFond asked how people will be prevented from using their property in the APZ for ATV trails or to create a quicker pathway to Upper Troy Road from their homes on lots 8 and 9. Mr. Filipi said he’d address that issue in the deeds.

Mr. Buonomano said if he was doing this development, he’d put lots 8 and 9 over with the others on the cul de sac. Silverman pointed out that he didn’t believe you could put more than 7 lots on that particular site because there isn’t room for more than 7 individual houses. If it was condos it might work. Pini noted that none of the houses on Upper Troy road meet setbacks for septic and wells.

Silverman said we don’t want to exacerbate what we have and we can’t repeat the 18^th century -they didn’t use water the way we do now and they had outhouses. He suggested looking at the Amos Fortune Road in Jaffrey as an innovative build out, remarking that it looked like a suburban development with no trees. Pini noted that the smart growth approach works well when there is municipal water and sewer.

Nancy Carney asked if the Fire Department could have a set of plans to review before the next meeting. She thinks the cul de sac looks a little small and she wants to insure that the town’s largest truck, the Meadowood tower truck, could make the curve.

Pini said the Board had approved some subdivisions in the past because we rationalized it and made a bad situation worse – she wants the Board to think about it, to not make a bad decision –she felt backed into a corner with the threat of bringing in a 15 lot subdivision if this one isn’t approved. Mr. Sheldon pointed out that he believes this development plan meets all the regulations, and now the Board must consider public health and safety.

Pini asked the Board to consider a scattered and premature designation relative to the condition of town roads, police, fire, and other services. Mr. Sheldon said he didn’t think the Board had a legal chance with scattered and premature. Gray said it is the Board’s duty to not exacerbate a bad situation.

Pini reminded everyone that the town tried and failed to get support for a public sewer system and that the village septic systems are in failure. She added this water problem is still a huge problem, it hasn’t gone away and it isn’t in the CIP plan for improvement. Parker said that until there is popular cry for a sewer system the Selectmen won’t bring it back. Pini wondered if anyone has checked how bad septic pollution is now, asking if the Board is worried about the impact of this development. Haynes asked how many people might live in these homes. Mr. Filipi said that generally the larger the home the fewer the people living in it. He said that typically he builds houses with a septic capacity for four bedrooms.

Landy said he thought the Water District was years away from taking on development of a new public water system. Gray asked if cutting trees would exacerbate the runoff problem, especially since impervious surfaces will replace the trees. Mr. Filipi noted that 25 years ago this area was much more open than it is now. Now there are mostly smaller trees with most of the proposed lots in fields or former fields. He added that hopefully the engineer will be able to answer these questions. Gray said this area is part of the huge Miller Watershed, which includes many towns, and she doesn’t want to create a regional pollution issue.

Mr. Sheldon pointed out that these are large lots and will require state approved septic plans. Landy said the perc tests may dictate where the septic systems are located. Pini said she wasn’t worried about the septic systems in the development but about all the other systems in town.

Silverman asked Mr. Filipi, hypothetically, how much relief from the road specs would Mr. Filipi need to eliminate the two outlying lots, and still have a paved road that has been properly engineered to manage drainage and storm water runoff. Mr. Filipi said he’ll think about it for the next meeting and ask the engineer what minimum road will work.

Minutes: Haynes moved, Silverman seconded and the Board voted to accept the minutes of the April 3, 2007 meeting as written, with the addition of the word ‘attorney’ clarifying Mr. Sheldon’s role on page 3.

Silverman moved, Gray seconded and the Board approved a motion to move into closed session by a unanimous role call vote of the Board to discuss a pending legal action and to report legal advice on a pending matter.