Town of Fitzwilliam, NH - Planning Board Minutes 01/08/08

Wetlands hearing: Garrett and Shantell Curtis application to build an extension to an existing barn within the wetlands protection overlay district on property located at 62 Westlake Road, Map 11, Lot 13-02, Rural District.

Silverman stated that after reviewing the assessment folder for the property it seems the existing barn was built without a building permit. He read the Conservation Commission report.

“The extension appears to be in the Wetlands Protection Overlay District (WPOD). Obligate wetland plants (cattail, winterberry, rush) are located 14 feet from the extension and surface water is visible 32 feet from the extension. There appears to be a considerable fluctuation in water levels at this location, based on the vegetation and water lines on nearby boulders. It is not possible to determine if the barn extension itself is within a wetland without completing a professional wetland survey that would include examination of soil type and subsurface water level. A concern of the Conservation Commission is the proximity to the wetlands of the barnyard for horses (two present at the time of the visit) and adjacent manure pile – both appear to be within the WPOD.”

Mr. Curtis said there have been horses on the property for twenty years. Pini noted that the wetlands have never been delineated and Mr. Cutis said they weren’t disputing that they were near wetlands, but didn’t realize they needed a building permit for an extension to a structure her referred to as an animal shelter.

Silverman asked if everyone was familiar with the site – they are. Pini, reading from the wetlands ordinance, noted there were three options for the Planning Board: to reject the application, to grant conditional use, or to refer the case to the ZBA. Grasewicz noted a fourth option was to exempt the construction as an extension to an existing lawful structure.

Pini asked when the barn was built. Mr. Curtis said he thought 20 years ago. He said it is a 16X16 barn. Gray asked if the wetlands have increased in that time. Mr. Curtis said it was his understanding that they have increased. Silverman said the wetland has been expanding and shrinking for years. Parker believes the barn has been there quite awhile. Grasewicz said that it had been there since at least 1997. Parker thought it was built shortly after the house was built in 1987. Grasewicz noted that the wetlands ordinance was adopted in 1991.

Pini reviewed the assessment file and said it would be worth the Board’s efforts to pin down the actual date of construction, perhaps by viewing the tax cards for the property. Mr. Curtis asked if there were size exemptions for an animal shelter in the 1980s. There weren’t.

Pini noted there were criteria tests to be met to grant a conditional use approval and she wasn’t sure the activity could meet those criteria. [127-16.1 D. (4)] Gray stated that the Board needed to research when the barn was built and whether or not it is in the wetland. The Board agreed. Silverman asked Mr. Curtis to have the wetlands delineated by a qualified wetland scientist and to research and document the date the barn was constructed.

Preliminary consultation: Craig Chamberlain to discuss a boundary line adjustment between properties owned by Kings Arrow Realty Trust, Map 3, Lot 39 & 40 and Carl Michelson, Map 3, Lot 37, located on Templeton Turnpike at the state line, Rural District.

Mr. DeBernardo, representing Kings Arrow Realty, was present to discuss the plan. He explained that the boundary line adjustment will transfer 5.13 acres of back land belonging to Kings Arrow to Mr. Michelson and transfer .99 acres with 290 feet of frontage of land belonging to Mr. Michelson to Kings Arrow. The Michelson lot will become a 7.52 acre parcel with 584.50 feet of frontage. The Kings Arrow Realty Trust lot will become a 410.19 acre parcel with 2660.27 feet of frontage.

Pini noted Mr. Michelson’s lot is a buildable lot without adding any more land or frontage. There was some discussion about the subdividability of the new Michelson lot. Mr. DeBernardo said the reconfigured lot was a better building site.

Wetlands have not been delineated on the lots. He said Kings Arrow may want to subdivide their parcel in the future. Silverman noted that by adding more frontage to the large lot, the Board was increasing the potential number of lots in a future subdivision.

Landy asked about the state of Templeton Turnpike at that point. Mr. DeBernardo said it was passable. The town does not plow to the state line because there is no place to turn around. Royalston trucks plow north to the bridge and turn around where the Fitzwilliam trucks turn. (The Road Agent confirmed that the town does plow to the town line, with an informal cooperative arrangement with Royalston for plowing in the area. 1/09/08)

Nancy Carney, Deputy Fire Chief, said their biggest concern is the culvert. It has washed out several times. Parker noted Fitzwilliam has residents on the other side of the culvert, adding that he believed the culvert had been upgraded. Pini noted that when the time comes for a larger subdivision there on Templeton Turnpike, the Board consider assessing for off site improvements. (Road Agent says culvert replaced and upgraded two years ago with concrete header and footing and 13 foot arched aluminum culvert which is considered a bridge; bridge has railings and is approved by the state; at a cost to the town of $35,000-$40,000. 1/09/08)

Gray asked if there was any interest in a site walk at this time. Silverman said that would not be part of a boundary line adjustment. Parker noted Templeton Turnpike is a Class V road and the Selectmen would issue a building permit on it.

Preliminary consultation: John Tommila to discuss re-zoning parcels identified as tax Map 18, Lots 11, 12, and 12-1 located in Rural and Light Industrial Districts.

Mr. Tommila is concerned about the zoning of his property. The property is in two zoning districts – the light industrial district corridor, five hundred feet back from Route 12, and the rural district for the remaining acreage. He asked the Board to zone the whole property light industrial, in essence to follow the lot lines rather than have the 500 foot corridor. Pini said the Board proposed an ordinance change in 2007 that the light industrial zone follows lot lines similar to the general industrial district. The Board heard from the public and deemed the ordinance proposal should not go forward at that time.

Mr. Tommila said that when he left that public hearing he was under the impression that all his land would be in the light industrial district. Since the ordinance amendment did not come to a vote, he said he is appealing to the Board to rezone his property. He stated that the land has been used in the same way for 70 years.

Silverman said that the procedure for re-zoning is to petition the town to change the zoning at Town Meeting. Unfortunately, the deadline has passed for petitioned articles for the March 2008 Town Meeting. Landy reminded Mr. Tommila that his current use of the land is grandfathered and he can continue that use as could a new owner since a grandfathered use runs with the land.

Mr. Tommila asked if there was any other way to rezone the property without waiting another year. Silverman said he was not comfortable with the Board proposing rezoning to benefit one individual property. Mr. Tommila repeated that the situation was not right and he wants it fixed.

Mr. Tommila feels the town has taken his land and made it rural. He said his business is not even light industrial. He wants it zoned heavy industrial, stating that his business involves noise, dirt and large trucks. Pini reminded him that the zoning has been in effect for more than 20 years. Silverman said Mr. Tommila is a good steward of the land and his business has a light impact on the land. Silverman said a designation as heavy industrial is not right for the neighborhood. Pini reiterated that town meeting is the only way to change zoning, adding that there are provisions for calling a special town meeting.

Silverman said it is not a function of the Planning Board to change the zoning on his behalf. He added Mr. Tommila can continue to use his land as he has been using it for 70 years without restriction. Mr. Tommila said he would investigate the steps he needed to take to make the situation right.

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.

As requested at the last meeting, Mr. Grasewicz presented a conventional subdivision plan for 13 lots to be used as a yield plan for the cluster subdivision special permit request. The plan calls for two roads to enter the property and intersect at a point 300 feet from a cul de sac. The plan shows house sites, septic and well locations and he said all calculations indicate that the subdivision regulations are met. He did a conceptual profile for the road and the maximum slope is 5.8%. One of the roads has a reverse curve to minimize wetland impacts. Soil tests have been done for the parcel and they were submitted tonight.

All wells are outside wetlands, although the protective radius of some of the wells is partially in the wetlands buffer. He said road waivers would not be needed for this plan. Silverman confirmed that this plan is submitted as a yield plan for the cluster subdivision special permit.

Mr. Filipi said seven of the test pits were made for the original subdivision and apply to the yield plan since the plan puts some of those original lots back in play. Grasewicz said every lot is labeled with the acreage and frontage, and a chart for the upland acreage and a conceptual drainage plan are included.

Mr. Filipi said the other documents (covenants and easements) necessary to satisfy the cluster special permit will be completed by the next meeting; they are nearly finished now. A letter requesting the special permit has already been submitted. Grasewicz submitted a letter from a wetland scientist stating that a wetlands permit is likely to be approved for the yield plan.

Mr. Little, attorney for abutters, stated he thought the source of the soils data was not noted on the plan and that to the extent the yield plan depends on field tests this plan is not helpful. He was surprised that the soil mapping on the yield plan was not correlated with the lots. He said the wetland scientist’s letter is incomplete since it refers to information not provided. He said his impression is that a wetlands permit is not as easy as the letter implied. Mr. Little said he hadn’t had a chance to review the yield plan and will send written comments as soon as he does.

Grasewicz said the soil analysis in relation to lot loading was based on Soils Conservation Services maps. His own hydrological analysis is based on on-site soils testing, which was done for septic planning and stormwater management plans. He said the test pits may not line up and they may have to do more specific testing to line up with the 4K square foot square on the final plans. Mr. Filipi will of course submit plans to DES for any lot smaller than 5 acres with test pit information within the 4K sq.ft. area as required by state law.

Pini asked how many lots were smaller than 5 acres. Grasewicz said that on the yield plan and on the final cluster plan 8 lots were smaller than 5 acres and would require state septic approval.

Mr. Little submitted a letter from the Roehl’s, abutters, which the Board also received, stating that in a realtor’s opinion the subdivision road would devalue the Roehl property. The letter is part of these minutes. Pini stated that as a former realtor she believes this letter doesn’t offer any concrete evidence to support the claim that the roadway would devalue the property, and cautioned the Board about conclusions based on the letter.

Silverman moved, Landy seconded and the Board voted to continue the hearing to January 15, 2008 to discuss the covenants for the cluster subdivision and any comments made by Southwest Regional Planning Commission about the yield plan, which they have been asked to review.

Public hearing continued: 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, Rur. Dist.

Neither Mr. Patel nor a representative was present. No contact was made with the office about attendance. Mr. Grasewicz said he had heard from the electrical engineer who asked for the CAD file, which was sent, so it could be used in planning for lighting.

Abutters were present and Mr. Dwinell said the stockade fence required in the site plan had not yet been installed, noting it had been four months since the decision. Mrs. Coburn and Mr. Niemala expressed their frustration at Mr. Patel’s not showing up for the hearing and at progress at the store, noting several items they saw as violations.

Silverman said he understood their complaints, and the Planning Board was trying to make the site as amenable to the neighborhood as possible, but he didn’t feel it was time to ask the Selectmen to shut him down. He said the office would contact Mr. Patel.

Mr. Parker asked for a list of pending items that must be completed and the Board of Selectmen will write a letter to Mr. Patel. A certificate of occupancy has not been issued yet. Silverman said the construction of the stockade fence, competing new exterior lighting and permanent closure of the southern driveway were pending issues.

Amendment to Land Use Ordinance Article IV, Overlay Districts by adding a historic district overlay district, bringing existing ordinance into compliance with RSA 674:46.

Silverman introduced the historic district overlay district ordinance. The Vice Chairman of the Historic District Commission, Brian Luddy, told the Board that state legislation enabled historic districts in 1983. The Fitzwilliam historic district ordinance predates that enabling legislation by 13 years and is outdated and legally inadequate now. This amendment will legally empower a historic district and put enforcing authority in the hands of the municipality.

Gray asked if the boundaries as outlined in the ordinance are the same as the current district boundaries. Luddy replied they are. He said that in the future the Commission may consider making the district smaller, but there are no plans to do so now.

Silverman moved, Landy seconded and the Board voted to present the Historic District Overlay District ordinance to the Fitzwilliam legislative body on the second Tuesday in March 2008.

Paul Kotila, chairman, and Barbara Green, co-chairman, of the Conservation Commission presented their thoughts on the ordinance. They presented a draft that juxtaposed the state model ordinance with the Rindge ordinance in order to compare the state model to a real town ordinance. They found there were more than 30 references to different RSAs, with which they were not familiar. The model refers to outside sources of information that are unfamiliar too, especially for conditional use permits.

They do not recommend going forward with the ordinance at this time. They feel they would not be prepared to defend the ordinance at town meeting. They suggested staying away from the model ordinance and tweak the Rindge ordinance for Fitzwilliam.

They said the Rindge ordinance only protects stratified drift aquifers, not other surfical water sources. The Rindge ordinance is specific and restrictive; the state ordinance is not as specific.

Mr. Kotila asked if the Board intended to include bedrock fracture water sources or other water sources in the ordinance. The whole ordinance is based on reference maps and fracture zones are another matter altogether. A town would have to survey the whole town to include all the water sources. He added that identification of the fracture is one issue and the identification and protection of the infiltration area is a very difficult and complicated issue.

Pini asked if there couldn’t be a clause in the ordinance that stated that if it is determined that a source of water was present during a subdivision application or site plan review the Planning Board would manage the further identification of the water resource. Pini said the Planning Board requires the delineation of wetlands by a qualified professional in order to apply the wetlands protection overlay district ordinance, when wetlands aren’t shown on the town maps. Mr. Kotila wondered how we would know about sources other than stratified drift aquifers. Pini suggested there would be some evidence that would lead the Board to suspect a water source.

Silverman noted that the restrictions apply to uses other than residential uses and would probably not apply to 98% of the population. He said that the recent town wide survey found that 80% of respondents indicated protecting drinking water resources was a very high or high priority.

Mr. Grasewicz and Mr. Filipi suggested that some towns’ restrictions limit the amount of impervious surface allowed in development and some limit agricultural activities. Some restrict activities after they reach a specific threshold.

Gray said this ordinance was too important to not discuss thoroughly. Mr. Kotila said the complexity of the state model makes the ordinance hard to explain; it is designed to regulate those activities that really impact the land. Mr. Kotila asked the Board if there were other things they wanted the Commission to attend to and Silverman said no. Silverman asked the Board for consensus to take no action at this time on the ordinance. They agreed.

Amendment to Land Use Ordinance Article III, Section 127-8A, General Uses, amending the livestock ordinance to limit restrictions on livestock keeping in Fitzwilliam.

Landy said that Diane Schott was ill but wanted him to relay her comments that this ordinance has worked without problems in Jaffrey. Gray felt this ordinance makes the whole livestock management problem simpler. Silverman asked if anyone else had problems with the ordinance besides him. He said his problem with it is that this one doesn’t prevent people from keeping their animals close to their neighbors’ houses. He added there is no good guidance for enforcement and this enforcement would happen after the fact, when a problem is discovered.

Pini said that when someone comes in for a building permit for a barn the structure must meet setbacks. Silverman asked if the Board agreed to put this ordinance forward. They did.

Administration: The Board discussed whether or not to hold a public hearing on a proposed ordinance dealing with any lot divided by a zoning district line. Silverman introduced the concept saying that it applies only to residential lots and clarifies what restrictions apply in borderline lots.

Grasewicz didn’t think it treated lots fairly or equitably. Silverman said the intention is to not break up large lots but to keep them rural. The Board reviewed the zoning map.

Mr. Filipi said this ordinance was essentially re-districting. Grasewicz offered that they might as well abolish the residential district. Gray wasn’t sure this proposal affected very many lots.

Pini suggested that this discussion should be held as part of the master planning process when coming up with a proposal for comprehensive re-zoning with recommendations for implementation. Parker said he’d like the Board to take time to review zoning and make all districts follow lot lines.

Pini said she was not in favor of bringing this ordinance forward at this time. She suggested considering changing lot size regulations, increasing the residential lot size to 60,000 square feet. She asked what a reasonable residential lot size would be in a town without sewer or municipal water service. Grasewicz thought 60k was reasonable.

The Board wondered how many lots that were in two districts were subdividable. Silverman said they needed to decide if they are going to expand the residential district. He added that the survey found that most respondents wanted to preserve the rural character of the town.

Pini suggested looking at re-zoning after the Master Plan revision. Silverman said upping the size of residential lots has no impact; he didn’t think expanding the residential district up Upper Troy Road was reasonable. He added this is not a new suggestion; that this is about density more than anything else. Mr. Filipi suggested a scenario where lots that were side by side in the residential district could be restricted differently –if one was in a split district (residential and rural) development would be restricted to 3 acre lots and if the neighboring lot wasn’t in split districts lots sizes of 1 acre would be allowed.

Minutes: The Board reviewed the minutes of the December 18, 2008 meeting. Pini moved, Landy seconded and the Board approved the minutes as written. The Board thanked Paula Thompson for taking the minutes and doing such a good job.