Town of Fitzwilliam, NH - Planning Board Minutes 12/04/07

Public hearing: Fitzwilliam Green application for a five lot subdivision of property located on Jaffrey Road, Map 15, Lots 52 and 53, Rural District.

David Green, Matt Buonomano and Ed Rogers presented the application. Mr. Rogers, engineer, distributed copies of the plan to the Board. He noted that two tax parcels were to be subdivided. Parcel 15/53 on the north side of Jaffrey Road will be divided into two lots; one lot of 7.34 acres with the existing barn and the second lot of approximately 187 acres. Parcel 15/52 on the south side of Jaffrey Road will be divided into three lots; one lot of 6 acres with the existing house, the second lot with 11.4 acres and the third lot with 18.9 acres.

Fitzwilliam Green has an option to buy the 195 acre parcel on the north side of the road and the permission of the landowner to pursue a subdivision of the lot. Because Jaffrey Road bisects the property, the plan is drawn as a two lot subdivision of parcel 15/53 and a three lot subdivision of parcel 15/52.

Subdivision lot lines and boundary follow existing stone walls. Pini questioned the survey of the two lot subdivision of parcel 15-53. Mr. Rogers surveyed the 7.34 acre parcel with the barn and the remaining lot was surveyed in the 1980s. Fitzwilliam Green LLC wants to retain options for future subdivision of this lot.

Mr. Rogers noted that if the lot with the barn is sold with the house lot, a restriction will be placed on the deed prohibiting further development of the barn lot. If the barn lot is sold separately from the house lot, a house site has been identified east of the barn across the swamp. They said new owners would access the barn via Jaffrey Road, rather than crossing the swamp.

Steve Reinhart, an abutter on the west side of parcel 15/53, commented that he and his family couldn’t be more pleased with the way the development of the parcel is proceeding and with the plans to conserve land and locate a CSA operation on sections of it. He believes the owners have done their homework and commends them.

Silverman noted that the Board has done a site walk of the property. The consensus of the Board is that the subdivision as presented is acceptable. Silverman moved, Pini seconded and the Board voted to continue the hearing to December 18, 2007 at 7 PM to allow time for the mylar to be produced for signature. A final decision will be made at that time.

Barbara Green and Paul Kotila have reviewed the model aquifer protection ordinance with the Conservation Commission and have several reservations about proceeding with ordinance development for a 2008 vote. They feel the Master Plan should recommend protection of water sources and believe the current edition does not. They said the Conservation Commission recommends building the groundwork for town acceptance and doing the necessary homework to develop the ordinance.

Mr. Kotila said they were not trying to slow down the process and would be happy to develop the ordinance in parallel with the revision of the Master Plan in 2008. Mrs. Green noted that other town ordinances describe the area to be protected and therefore accurate maps are needed. They are not sure how precise the maps are that they are reviewing at this time. They want to investigate the experience of other towns that have an ordinance protecting aquifers and/or groundwater.

Parker questioned who developed the maps - the underlying data for the maps they distributed. (Maps were created by the Land Use Department and are based on digital data from SWRPC and GRANIT using a variety of county, state and federal sources.)

Silverman asked if an aquifer protection ordinance would restrict homeowners differently than the way homeowners are restricted by the Wetlands Protection Overlay district ordinance and if prohibited uses were primarily industrial uses. Mr. Kotila said the model ordinance prohibits a number of things, primarily large sources of contamination but allows conditional uses if approved by the Planning Board and provides for exemptions, like private residences. He read a few examples of prohibited uses, like development of a hazardous waste disposal facility, operation of a junkyard or gasoline station, outdoor storage of road salt.

Silverman asked if the model ordinance addressed population density. It does not. Silverman added that he was thinking of the cumulative effects of a large subdivision. Grasewicz noted that these kinds of ordinances sometimes limit the amount of impervious surface allowed.

Parker said as Selectman he was concerned about enforcement and how much professional expertise would be needed to enforce this ordinance. Mr. Kotila said that is why they want to talk with other towns. Parker also raised the issue of “taking” and wondered about legal cases on this. Mr. Kotila questioned the expertise needed to clarify the boundaries of any aquifer protection district and wondered about grandfathered uses. Mrs. Green said some towns do require specific hydrology assessments. Grasewicz said the owner can be required to identify the boundaries and can also be required to use innovative systems and alternative management procedures.

Shelly Bobowski, engineer from Geosense, said restrictions vary from town to town. She said the maps are based on soils maps and test borings for identification of stratified drift aquifers. Borings were done in NH in the 1980s.

Mr. Kotila noted a stratified drift ordinance would not cover all sources of water such as bedrock fracture aquifers. If wellhead protection is included the wells must be specifically identified. He asked where the Board wanted the Commission to focus. Mrs. Green said an ordinance could cover only stratified drift aquifers, and/or wellheads, and/or other public water supplies.

Silverman said he thought we should proceed to identify what may be needed for the Master Plan, and to determine what future water supplies need to be protected, like lakes and quarries. Mrs. Green said lakes are a separate issue – this ordinance covers drinking water. Lakes are under state regulation. Parker noted the town is already behind in protecting Laurel Lake. Mr. Kotila said Laurel Lake is overdeveloped and overused.

Gray wondered if they thought there was data lacking. Mr. Kotila said stratified drift aquifers can be identified by observation as an area of loose gravel or sand where water is stored. A subsurface analysis is needed to identify bedrock fractures as water sources.

Schott summarized their concerns about acquiring more information and the challenge to educate the public about the ordinance. Mrs. Green said that protecting future water supplies may involve restrictions in highly developed areas. Mr. Kotila asked for more guidance from the Planning Board.

Preliminary consultation: Mary Ann and Mace Wenniger to discuss possible subdivision of property located on Rhododendron Road, Map 13, Lot 5-1, Rural District.

Mr. and Mrs. Wenniger attended and presented their concept. Two lots have sold from their original 2004 three-lot subdivision. They would like to further subdivide the third 15.04 acre lot into two lots. They want to sell one lot and keep the other with the intention of putting it under a conservation easement eventually. A large beaver pond and house site are identified on lot 5-1.

They discussed various options for subdividing. Pini asked if they had talked with anyone about subdividing and compliance with zoning requirements. They have not at this time. Pini added that with adequate frontage and acreage a subdivision would be possible. Silverman noted that with the large beaver pond on lot 5-1, he is concerned about whether there would be enough contiguous upland to create a second building lot on the parcel.

Silverman suggested finding someone who could draw a prospective subdivision and the Board will look at it. He added the Board can’t draw the subdivision for them.

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

Steve Filipi, developer, and Paul Grasewicz, engineer, were present. Silverman opened the hearing noting that the case was in the stage where the Board would be looking at documentation needed to finalize the application. Mr. Filipi said documents for the disposition of the common land, protecting the water resource and the homeowners association would be submitted at the next meeting. His attorney is finalizing them. They will also submit a waiver for the length of the road and a bond agreement at that time.

A written request for a cluster subdivision special permit will be submitted with a yield plan at the next meeting. Mr. Filipi noted that the Board had requested that he consider a cluster subdivision as a way of protecting the aquifer identified during the hydrology assessment. At the time the Board was advised by the Local Government Center attorney that a new application was probably not needed in order to proceed with consideration of the nine-lot cluster subdivision since the developer changed his original subdivision at the request of the Board. Staff will further research that issue. Mr. Filipi is amenable to completing a second application if necessary.

Mr. Filipi said his surveyor has waited to prepare a final topo map until the roadway and number of lots is finalized. Extra copies of the final engineering plans will be available, but the plans were final on November 6, 2007 and are in the Land Use office.

Applications to the state for subdivision approval, alteration of terrain permit and wetlands permit will proceed once the subdivision design is finalized.

Gray asked if the Board had received a letter from the Road Agent regarding the intersection of the new subdivision road with Upper Troy Road. Silverman read the letter, which indicated that all town requirements are met with the current road entrance. Gray asked if the state preferred intersections to be directly opposite one another and Grasewicz said the Fitzwilliam regulation reflects ASHTO requirements that prefer 125 feet minimum offset intersections. Mr. Little, attorney for abutters, objected. Silverman said the Board would like to hear from him as soon as it was finished with this review.

Mr. Filipi asked about numbering the Common lots. He has been advised that Common Lot A may need to be numbered in order to deed it to the Water District and so it won’t be confused with other common land lots. He wondered if he should change the designations of the common lots from alpha to numeric. These will be unbuildable lots and it will be so noted on the plans and in the deeds. Staff will research that issue.

Pini asked about the disposition of this lot if the Water District didn’t buy it. Mr. Filipi said it will be common land in the subdivision. Silverman asked for a legal opinion on this too.

Mr. Filipi said that the town cluster regulations allow the common land to be used in a variety of ways. There will be restrictions on two of the remaining common lots. The common lot intended for the Water District will have different restrictions to enable the District to install the necessary infrastructure for a municipal well.

Gray asked to review the Filipi subdivision covenants. Mr. Filipi said they were working on them, and are trying to work out how to restrict use on the aquifer protection area portions of the residential lots. Since there is no aquifer protection ordinance in town, he wants to protect the APZ but still allow the owners to use their land. There will be separate covenants for the Water District lot. Gray suggested the Water District Commission review the Filipi subdivision covenants.

Silverman asked for public comment. Mr. Little, attorney for abutters, reviewed the Filipi subdivision file and commented on his findings. He thought the Board was not adhering to its own regulations. Regarding the cluster subdivision, he found nothing in the file that would demonstrate the total number of lots allowed under a conventional subdivision as required in 127-16 B.(2), nor did he see a written request for a cluster subdivision special permit. Referring to a recent court case, Auger v Strafford, he believes the application is too far advanced given the lack of evidence of a plan for a conventional nine lot subdivision.

Referring to the same court case, he noted that a waiver for road length must meet a hardship test, and not merely be a financial hardship to the developer. He said the current plan looks like the reduced dimensional requirements of a cluster subdivision were used to get a conventional subdivision. He noted that all lots did not have access to the common land.

Referring to subdivision regulations, Mr. Little said the town has requirements for the length of blocks and intersecting streets, none of which are demonstrated on this plat. He feels there are other more fundamental problems with the application; for instance, there is no notation regarding the unbuildability of the common land. He said surveyor standards are not met. There is no notation regarding status of Old County Road which abuts the back of the parcel. There is no explanation of why the surveyor took the boundary line to the far side of that road.

He noted that all plat plans are dated the same, even though they have changed since the first submission. There is no notation of when or what revisions were made. He said the town hasn’t required these notations from the surveyor. He said our cluster regulations enable “more sensitive siting” of houses and it was his opinion that this plan did not satisfy that requirement. He thought the road could be moved farther south on the parcel, moving it away from the Roehl driveway entrance. He added that the impact on the neighborhood of the possible 90 vehicle trips per day generated by the proposed subdivision could be minimized by moving the driveway, thus satisfying the purpose of our cluster ordinance.

He said that there had been no demonstration that the streets could be brought into alignment. He noted that the state recommends that dead end streets not exceed 500 feet in length, and the length of this subdivision road exceeds even our subdivision standards.

Mr. Little expressed the opinion that this hearing should be treated as an information session and that the Board should make the developer comply with our regulations. He suggested that the subdivision needed to be reconfigured if there was to be any meaning to our cluster regulation.

Ms. Bobowski identified herself as the engineer who wrote the Geosense report. She said she had asked about the design for Pond 8 at the existing weir, but had not received the information. She asked Mr. Grasewicz for the information. She has investigated the water flow in the area and thinks that the design should accommodate water bubbling up from the surface as well as water flow on the surface. She suggested reviewing a presentation by Professor Mike Simpson regarding sizing of culverts.

Public hearing: Ramen Patel site plan amendment for proposed exterior lighting of the parking lot at his convenience store located at 646 NH Route 12 S, Map 8, Lot 13, Rural District.

Hitendra Patel, Mr. Ramen Patel’s son and owner of the store, asked the Board to determine where the stockade fence was to be located. The site plan review specified that a stockade type fence was to be erected on the south side of the parking lot to block headlights from the neighbors’ view and to help maintain a rural feel to the neighborhood. Grasewicz suggested several options and the Board decided the fence should be located outside the gravel driveway and angled around to provide maximum view protection to the neighbors. Mr. Dwinell, abutter, asked for clarification of the boundary line and the location of the fence. Grasewicz said the fence and driveway are within the store’s boundary.

Mr. McLaughlin and Mrs. Coburn both commented on the lights and how their yards are lighted now by store lights. Mrs. Coburn asked that any lighting be on short poles, like those used at Mr. Mike’s. Silverman said the Board was looking at less illumination that at Mr. Mike’s.

Mr. Patel brought in the light he planned to use, stating that it was a shielded light that would be placed on a low pole in the parking lot. Gray noted the Board had discussed shielded lighting to prevent night sky light pollution. The Board requested that he bring in an alternative lighting plan with lighting that would shine directly down on the spot to be illuminated. Gray said she had in mind a light with the bulb surrounded by a metal shield. Grasewicz said these lights are typically shielded on three sides.

Silverman said he felt the Board could ask for this as part of the site plan review, adding the Board is respectful of the business use but also feels the responsibility to protect the neighbors. He said the shielded light will perform more efficiently for the business, by using a lower wattage to light only the location that needs lighting. Mr. Patel assured the Board that they were no longer planning to have PSNH install the light pole, adding he would hire a contractor to make a lighting plan.

Mr. Dwinell said he was cut off by a truck exiting through the lower driveway, which he thought was supposed to be closed to traffic. Silverman suggested that more than a speed bump berm was needed to block vehicles from using that driveway. The driveway is shared with an abutter and needs to remain open for the abutter to access his property. Grasewicz suggested the fence could be extended to cross the driveway blocking the exit.

Mrs. Coburn reminded Mr. Patel that the light needs to be switched off half an hour after closing. He acknowledged that he knew that regulation. Silverman noted that there are still banners on the store and they must be removed. Mr. Dwinell said the light at the entrance is now a spotlight, changed from the original lighting. Silverman asked that the light be changed to shine directly down rather than out.

Public hearing: Estate of Raymond Smith Jr. application for a two lot subdivision of property located at Able Road and Fullam Hill Road, Map 8, Lot 28, Rural District.

Grasewicz presented the plat. He noted that the plan was in the same configuration as presented at the preliminary but that since Ms. Johnson wanted to buy the parcel and did not intend to merge it with her abutting property, the plan was now a subdivision instead of a boundary line adjustment (which is special kind of subdivision). The property will be divided into two lots, one of 56 acres with the existing farmhouse and the other to the south, which the Johnsons are buying, of 30.35 acres. Pini asked if there was place to site a house on this lot. Grasewicz said yes, there is a place higher up behind the wetlands back in the woods. Stone walls line the road.

Public hearing: Boundary Line Adjustment application between properties belonging to Kenneth and Kathleen Chase, Map 16, Lot 9 and William and Donna Flynn, Map 36, Lot 2 on Scott Pond Road, Rural District.

Grasewicz presented the plan for this boundary line adjustment, explaining that Mr. Flynn wants to buy 7700 square feet of land behind his current back boundary line to give the property a small backyard area. Pini noted this adjustment makes the Flynn property more conforming.

Minutes: The Board reviewed the minutes of the November 6, 2007 meeting. One correction was made. Haynes moved, Gray seconded and the Board approved the minutes as amended.

Discussion: Silverman asked the Board if they had any comments on Mr. Little’s presentation, adding that each of his points were ones the Board had discussed at one time or another during the course of this case. Pini suggested Mr. Little had presaged his court presentation if there was to be one. Silverman said the subdivision as originally presented had morphed into a cluster to protect the sensitive bedrock aquifer once it was discovered during the hydrologic assessment. Pini suggested the Board reread the case referred to by Mr. Little, a copy of which the Board has in its documentation, to insure the application meets whatever tests are necessary.

Meeting dates: The Board decided to meet on January 8^th and 15^th, with the option of meeting on January 22^nd if necessary to complete work on ordinance amendments.