Town of Fitzwilliam, NH - Planning Board Minutes 10/20/09

Richard Drew, surveyor, presented the plans. He said the plans had been changed to reflect recommendations from the Board at the last public hearing and changes suggested during the site walk, conducted September 24, 2009. Silverman, Haynes, Landy and abutters did the site walk.

Mr. Drew submitted a completed voluntary merger application to merge Map 13, Lots 5-1, 6 and 7. This merger precedes a two lot subdivision of the merged lot. The merger will insure that the unbuildable portion of Lot 5-1 remains a non-building property following the subdivision.

As a result of the site walk, Mr. Drew added a vegetative buffer around the building site and along the edge of the beaver pond, to diminish stormwater runoff into the pond and reduce runoff across the road. A retention basin was added for the same reason. Mr. Newcomb, an abutter, noted that he was satisfied that the buffer and retention basin measures would deal with the problems he raised regarding stormwater runoff, as long as the buffer remains. Silverman noted that the changes are part of the plan and if development proceeds without them, Mr. Newcomb should notify the Selectmen.

Silverman moved, Haynes seconded and the Board voted to approve the voluntary merger. Silverman moved, Gray seconded and the Board voted to accept the subdivision application as complete. Hearing no further discussion, Haynes moved, Gray seconded and the Board approved the subdivision as presented.

Silverman said the Planning Board feels there should be provisions for nuisance and containment of livestock in any livestock ordinance and invited comments on other provision.

Kate Thomas asked what was wrong with the current ordinance, which requires adherence to best management practices in livestock keeping. Silverman said the police chief has fielded complaints from many residents about poultry in their yards or making noise that is a nuisance. He said that raising poultry in residential areas is becoming more and more common and the town should set reasonable guidelines for the safety of animals and peace and quiet for neighbors and the public.

Brian Doerpholz asked if the BMPs covered this. Haynes said BMPs don’t address noise or fencing. She added that the state indicated they would enforce the BMPS but they won’t enforce noise or odor issues. Doerpholz feels that wild turkeys running free in town are a bigger problem. Silverman said the argument isn’t relevant to the discussion. Doerpholz feels domesticated animals should be penned but a few wandering guinea fowl can’t cause too much trouble. Silverman said the Board wants to control the problem without making it so restrictive that it is tough to farm. He read the 2006 livestock ordinance, noting that the setback requirements were found to be problematic. When the ordinance was changed in 2007 to BMPs it left the town with basically no enforceable ordinance.

Haynes said the Board was looking at ordinances from other towns as examples. Thomas asked is they were suburban towns; she believes this discussion is about the character of the town – is it rural or suburban? We must decide what kind of community we want and write rules to guide the town toward that goal. She feels the model regulations are for towns with a different vision than we have for Fitzwilliam. She questioned the wisdom of throwing out the current ordinance and starting over.

Gary Heald said he is concerned that whatever ordinance we have doesn’t open his farm up to nuisance complaints. His neighbor’s house is for sale and if someone moves in during the winter, their experience of living next door to a farm will be quite different in January than in August. He said he wants some protection for “those of us who are trying our best,” knowing that sometimes the wind blows odor or an animal gets loose. Thomas agreed that “things happen.” Doerpholz said when we were an agrarian community there was probably general agreement that livestock noise and odor were not a nuisance. He asked if there was general agreement that certain things are problems or is it just that in some peoples’ opinion it is a problem. Silverman said that is the balancing act of regulation, trying to curb problems without restricting use.

Gray said setbacks may restrict small lot owners from having farm animals. Pini said it all depends on the vision of the town. It goes back to the Master Plan and zoning, and putting like uses together so the impact on neighbors is minimized, adding that maybe we should focus on the rural areas for agriculture and not in the residential district. Lisa Damon said that when a farmer spreads manure on the field in the rural district, the wind sometimes carries the smell into the residential district. Ben Thomas said one of the most attractive parts of town is having a working farm next door to the town hall.

Doerpholz noted that he will be attending an event in Keene on November 10 to discuss creation of agricultural commissions and wondered if the town would be open to creation of a commission in Fitzwilliam, and if a commission could help in this situation. Haynes said it would be helpful to have a sub committee with an issue like this. Doerpholz said there is a lot of support for promoting local agriculture.

Heald said any animal ownership comes with responsibility – if the cows get out and cause damage, it must be compensated, adding it goes both ways – if the neighbor’s dog comes to the farm and hurts chickens there should be compensation. He added that it’s not just agriculture that has nuisances; it’s the cat that uses the neighbor’s bird feeder as its own private game preserve too.

Matt Buonomano said he was hearing this discussion as a nuisance issue. Whether it is a chain saw at 6 AM, which he did this summer, or a rooster or a cat, it’s all the same. He asked the Board to make the language neutral in any ordinance. He said a good neighbor doesn’t cause a nuisance; they think about the impact of their actions on their neighbors.

Doerpholz said it will be important to protect both those engaged in agriculture and those not engaged. Silverman said it’s also about protecting our water sources. He has a problem if people have animals and they become his animals. He added noise and nuisance are hard to legislate but ongoing noise and nuisance are the issue. He suggested setbacks from neighboring dwellings, rather than setbacks from boundary lines as more appropriate.

Frank Bequaert said the reason we were here tonight is that the Selectmen can’t make any decisions because we don’t have reasonable ordinances, adding that good ordinances may make good, or at least better neighbors. Silverman said with an ordinance the issues are more objective than emotional.

Silverman said the Board will draft something and then will hear from you again, before getting into the formal hearing process. Haynes asked everyone to send their ideas and thoughts to the Board, adding that many towns have chicken ordinances just for residential areas.

Mulcahey Subdivision. Silverman moved, Haynes seconded and the Board voted to continue the Mulcahey subdivision hearing to 8:30 PM this evening to avoid a scheduling conflict.

Public hearing: Roger Keilig site plan review to make improvements to the retail building (State Liquor Store) and surrounding area located at 11 Route 119 W, Map 34, Lot 2-1, Residential and Historic Districts.

Mr. Keilig said he now knows that his liquor store is not first on the state’s list to be closed, but beyond that he has not real update. He presented his revised site plan, locating the site on a topo map indicating streams and other drainage that runs through the property. He said the main pollution of the brook comes from Route 12 and the intersection of Route 12 and 119. He described himself as a practicing engineer and registered geologist whose main client is the Department of Transportation for drainage and stormwater runoff issues. Addressing the Conservation Commission report, attached to these minutes, he described slope, runoff and nutrient loading issues.

He said Mr. Mike’s has 25,000 square feet of paved area and Casey J’s has 10 – 11,000 square feet of paved area, both larger than the amount of paved area he is proposing. He added that all these paved areas drain onto the wetlands and streams on his property.

His design for parking includes the 4,000 square feet of currently paved area and an additional 3,800 square feet of gravel surfaced area will be added. There are 11 parking spaces now, and the plan calls for 18 total. He described the proposed fill area and the measures that will be in place to mitigate runoff. The filled area is designed to create an effective buffer for runoff, with a snow storage/melt filtration area, a stone covered slope and landscaped area to slow runoff and provide additional filtration. Most of this work will be within the 75 foot wetlands buffer.

Mr. Massin asked if this was a change in use of the property. Silverman said no, it will continue to be a retail use of the property, adding that Mr. Keilig has a special exception for business use. Mr. Massin asked about lighting. Mr. Keilig plans a couple of additional lights but feels the property has the benefit of the street lights and so doesn’t need too much more lighting. Silverman said the Board always asks for shielded lighting. Mr. Massin described the location as being different than Mr. Mike’s in that it is closer to the center of town. He also wondered if a state liquor store was an institutional use of the land.

Grasewicz thought DOT might need a new application for the access since the use was changing. Mr. Keilig said the use wasn’t changing and he didn’t anticipate the traffic volume to be substantially different. He hopes there will be more traffic than the current store generates, maybe a third more.

Mr. Buonomano asked what kinds of things will be sold in the agency store. Mr. Keilig said he wasn’t on the business side, but it probably won’t be convenience store items. It is a 4800 square foot business space. He said he is making these changes so the state will not close the store. If the state does close the liquor store, his next plan is to become an agency store, which sells both spirits and other items. Silverman asked what happens if the agency store is not approved by the state. Mr. Keilig said he would probably close the store for awhile to think through options. He added that he is working hard with the State Liquor Commission to keep the liquor store open.

Dorothy Zug asked if the Board had read the Conservation Commission report on the property. The Board has the report. She said this situation is exactly why a wetlands protection overlay district was created.

Gray expressed concern about lighting – that there is enough for public safety and that it doesn’t pollute the dark skies of Fitzwilliam. Mr. Keilig said he hadn’t done the planning for lighting yet, but that lighting installations are much better now and so finding lighting to meet both needs should be possible.

Pini said she was interested in the projected traffic for the proposed use. Because the store is located right at the intersection, one has to watch for traffic coming from Route 119 and turning traffic from Route 12. She added that the intersection is already a dangerous one, and more traffic might exacerbate the problem. She said traffic in and out of Mr. Mike’s is considerable. Silverman feels it’s no more hazardous than the Jaffrey Road cutoff from Route 119. Mr. Keilig estimated about a 33% increase in traffic.

Tommila said the town wants businesses to survive, wants them full. Mr. Keilig pointed out that the town ordinance calls for 25 parking spaces using the formula. Adding seven more spaces for a total of 18 seemed reasonable to him. Grasewicz said that the number of parking spaces doesn’t necessarily mean more traffic. He feels an updated access permit from DOT is advisable.

Gray expressed concern that the parking lot is within the WPOD. Mr. Keilig noted that the proposed plan would be better, in that the filled area gives greater separation between the surface and the water table. Grasewicz said the design looks good, and it would be better with stone on the slope than topsoil in his opinion. Haynes said, on the other hand, the area is for parking and that could mean spills and contamination of the brook, which is part of a major watershed. Mr. Keilig noted that there is more runoff from Mr. Mike’s than is proposed from his store. He said the fill and filter strip will limit the possibility of runoff flowing into the wetlands, improving the current situation.

Silverman said that he would like to see a more specific lighting plan with fixtures to control light pollution, no matter what kind of business is on the site. He added that he would like to see the wetlands delineated on the topo map, not just the site plan. Yon asked if considering the amount of change to the WPOD, the Board would like to engage a wetlands scientist to evaluate the situation. Tommila noted that Mr. Keilig is an engineer who works with DES and DOT on drainage issues. Mr. Keilig said he has been a practicing engineer in this area for 25 years and has a reputation to protect. Hill said that if Grasewicz feels it is a good plan, he is OK with it too.

Silverman asked if the Board wanted to schedule a site walk of the property. They scheduled it for Friday, October 23, 2009 at 10:30 AM. Staff will email the Conservation Commission about the site walk. Mr. Keilig will be on site.

Public hearing: Mulcahey Land and Timber, LLC application for a boundary line adjustment and a four lot subdivision of property located between West Lake Road and Webb Hill Road, Map 11, Lot 5-1 and Map 27, Lot 13, Rural District.

Silverman opened the hearing by saying a noticing issue has come to his attention. Mr. and Mrs. Roy were not noticed and a corner of their property is within 200 feet of the site in question. Grasewicz pointed out that the subdivision regulations define an abutting property as either being directly across a street from the site or adjoining the site. He feels the Roy property is neither. He added that if the Board wanted to continue the hearing so the Roys can be notified, he has no problem with that.

Silverman said he’d like to review the site walk and continue the rest to a later date. Haynes said, for the record, Silverman, Haynes, Landy went on the site walk. Three abutters, Mr. Donnelly, Mr.Whitham, and Mr. Parker attended. Paul Grasewicz represented the landowner.

Grasewicz indicated the changes made to the plans based on recommendations from the site walk. The plans now show the setback line from the building sites; the 75 foot WPOD buffer has been updated, lot line have been changed somewhat, and the common driveway was removed. Since the landowner is not a developer and the lots will be sold separately, it is better for each lot to have its own driveway.

Silverman asked about the underground water. Bob Handy, an abutter has several concerns, including the impact on the peat marsh that has been buried by timber slash; the impact on neighboring wells if there is blasting to build roads or basements since the aquifer on Webb Hill is in the ledges and water runs uphill in this area; the status of Webb Hill Road in the Spring. He said the town should not have to correct the damage done to the marsh, the wells and the roads by the subdivision. Pini noted that most of the people in the area have water in their basements. Mr. Handy said that people who buy these lots are not going to know how much water they have to contend with. Grasewicz indicated that site development of this site will be very difficult.

Land Use Discussion. It being so late, the Board decided to move this discussion to November 17, 2009 following the meeting with Carol Ogilvie at 7 PM. Dorothy Zug noted that Conservation Characteristics numbered 5 and 6 in the Natural Resources Inventory indicate land that should be protected, adding the Board might want to review this information for the November 17, 2009 meeting.