Town of Fitzwilliam, NH - Planning Board Minutes 01/19/10

Appointment: Carol Ogilvie met with the Board to give them an update on progress on the Future Land Use Section of the Master Plan. She has reviewed all relevant materials, including the sections the Board has already worked on. She has reviewed the 2004 Master Plan. She plans to work with staff to review which of the 2004 recommendations has or has not been accomplished, and to discuss reasons they weren’t accomplished if relevant.

She distributed three examples of graphic summaries of master plans that help keep the master plan relevant to daily operations, and for public use on the website, in the library, on posters. She also has developed a matrix spreadsheet that helps track progress on the master plan. The plan should be reviewed annually. Gray felt the graphic representation made the MP easy and accessible and highlighted the main themes at a glance.

Ms. Ogilvie will check new policy statements, goals and recommendations against current zoning ordinances to see if the ordinances further the goals of the master plan and recommend changes if necessary.

Growth Management Ordinance. Ms. Ogilvie reviewed the GMO at the Board’s request. Silverman said the Board agrees with the goal of the GMO but doesn’t want to put the town at risk if the current GMO is illegal. The town has not asked for an opinion from an attorney about the legality of the current GMO, or about the legality of a proposal to amend it. Silverman said that in the opinion of the Local Government Center attorney our GMO does not meet current requirements. Ogilvie said she’d err on the conservative side and weigh the risks of keeping it or amending it against the risks of letting it go so we can take the time to do the studies necessary to provide evidence of need. She added that if we feel the town is at risk for a growth spurt we could put an interim GMO in place. She said that they are not seeing many GMOs around the region; they have either all expired or have been repealed. She noted there is very little building going on now.

Ogilvie said that land costs and site development costs are significant factors in a developer’s calculations, adding that site development costs are probably high in Fitzwilliam. The new workforce housing guidelines outline the issues of maximum concern for developers, and they are site development issues, rather than permits or zoning regulations.

Haynes asked Parker about his concerns. He allowed that no one can predict the future, but wondered what would happen if a developer wants to bring in 50 new homes. He realizes that the depressed building market will not last forever. He reiterated the survey results that indicated people want Fitzwilliam to remain a rural town; they don’t want it built up, he said. It is difficult to bring industry into town, and Fitzwilliam is becoming a bedroom community. He’d like to keep a lid on development and recommends adding a sunset clause to the current GMO and changing the formula for determining the number of building permits to a percentage of the number of current residential units. He said a one percent level would allow the town to make 13 building permits available in 2010, which he said would be in line with people’s opinions on the survey.

Parker said the town has a very high tax rate for what you get. We spend $14,000 per child in school, while Troy is at $4,500. He feels this is in part due to an inequitable tax system in the state. In his opinion, we should continue the GMO for the near future.

Gray said that to change the formula we need to change the ordinance, and she asked if there was enough time to do that and hold a public hearing on it. Silverman said there are other ways to dissuade development speculation, adding that the current wetlands ordinance discourages site development. He added that 13 building permits are too many under a GMO.

Yon said he wants a GMO to control a possible big spurt in growth, not to limit growth. If the formula is changed to allow a 1% per year growth rate it will give us an orderly way to get prepared. Ogilvie said the Planning Board already has the ability to temper the impacts of a large subdivision – you don’t have to put the town at risk. She said a GMO is challengeable because stopping development is a taking. She said phased development is a tool to use a percentage target for growth. This kind of change needs some basic research to determine what’s fair and it is possible for next year.

Parker said there is a lot of property ready to go into development, it’s cleared and has logging roads laid out like towns. Haynes feels it would be good to change the formula this year. Gray pointed out that the number of building permits given out held steady at 11 or 12 between 2005 and 2008 even though the GMO allowed for more to be available, but last year the bottom dropped out with only 5 permits available under the GMO.

Silverman said he had a question for an attorney – can the town modify the current GMO by adding a sunset clause to the current GMO? Pini said that would keep the number of building permits low for the coming year and she doesn’t feel that is fair. Haynes asked who was going to prepare the ordinance for public hearing if it is legal to change the formula to a percentage. Yon said we know what to do and distributed the recommended changes. The recommendations are to change the baseline to the number of housing units in town, allocate building permits as a percentage of the baseline and pick a sunset date. Pini offered to research a court case that used a percentage as a basis for allocating building permits and found it illegal to do without evidence that the percentage was based on real factors. (Stoney Brook Devel. Corp. v Town of Fremont)

Silverman said there is nothing supporting the suggested changes, not supported by defensible evidence, adding it is not legal to pick a number and expect it to hold up in court. He said he agreed with the objective, to slow growth. Yon said a percentage is not unreasonable and Gray said it was arbitrary.

Ogilvie pointed out that the statute says it’s not about keeping things the same, but about the need to demonstrate lack of capacity. The town has to be able to document why more than normal growth is unreasonable. She said the Board interviewed department heads and know what kind of stresses they are under.

Parker said there are plans for a police building, funds for a highway equipment storage building. The town hall can’t accommodate all the groups that want to meet here and there is no space for document storage. We have 50+ miles of roads to maintain. He said our infrastructure hasn’t grown because the town has grown at a steady rate. He feels progress has been stymied because of a stagnant economy – people don’t want us to spend money. There is no town water or sewage treatment facilities; the major industrial building in town is empty and frozen solid. He said he doesn’t even know who is holding the paper on it. He said it does have a good big septic system and if the building was razed the town could use the septic system. He said the town has a basis for a GMO – he’s not concerned about school capacity, school population has dropped.

Ogilvie said the requirements for phased development are not the same as for a GMO. Phasing clicks in once the development has reached a certain size. If the developer wants more houses, the Planning Board negotiates it, phasing growth into the future.

Yon said we might just as well repeal the GMO and see what happens. Silverman asked if the town could get a comprehensive road study to determine the conditions as a basis for determining development potential. Parker said UNH did one once for us. Ogilvie said the town has to be careful – exactions for road improvement are a way to assist the town in improving roads. The exaction has to be fair and the town will pay its share. She said roads have to be really bad in NH for scattered and premature to apply, adding it’s hard to identify places where public safety vehicles can’t go. Nowadays, police and fire equipment can go anywhere, and if they can’t get to a problem it is rarely actionable.

Livestock Ordinance. Haynes registered her objection to requiring chickens to be fenced. Silverman moved, Landy seconded and the Board voted to bring the proposed livestock ordinance to town meeting as written. Five yes, one objection.

Enforcement ordinance. Silverman said this is the first public hearing on this ordinance, which allows for a penalty to be imposed for violation of the livestock ordinance. Questioned, Silverman said he assumed it was for each complaint, not for every chicken that was not fenced. Hearing no further discussion, Silverman moved, Landy seconded and the Board voted to bring the livestock ordinance to town meeting as written. Five yes, one abstention.

Wireless amendment. The amendment was expanded using the SWRPC guidelines for size of array and height restrictions. The height restriction suggested at the January 5, 2010 meeting has been replaced with the SWRPC guideline language. The intent of the ordinance has not changed. Silverman moved, Landy seconded and the Board voted to bring the amendment to town meeting as written, incorporating the SWRPC guideline language. All yes.