Town of Sutton
Planning Board
Hearing Minutes for December 23, 2008
The hearing was called to order at 7:06 p.m. Members in attendance were Peter Blakeman, Acting Chair, Robert Wright, Jr., Courtney Galluzzo and Carrie Thomas.
There was one item on the agenda the Kezar Conservation Group, LLC. This was a preliminary subdivision review for a consolidation re-subdivision for Meadow View Farms. The application has been filed; the abutters have been notified and public notice as been posted. Application is complete. Robert Wright, Jr. made a motion to accept the application as complete. Carrie Thomas seconded. Unanimous Vote by Board members to accept this completed application.
Peter Blakeman turned the hearing over to Roger Wells, co-founder of the Kezar Conservation Group, LLC. Wells supplied the Board members with updated maps of the proposed project. This project is referred to as Phase II of Meadow View. The land is the back pieces consisting of 11 lots on the far side of Lyon Brook. It consists of a little over 90 acres and has an approved subdivision for 11 lots. The Kezar Conservation Group, LLC has an agreement of sale with the contract purchasers. The condition of this purchase is that the necessary approvals come from the Township in order for this to be converted to a 3 lot minor subdivision. The plans show 3 lots each having at least 200’ of frontage along Kings Hill Road as required by the Rural Agricultural district. Lots 1 and
2 are each 12.5 acres +/-. The intent being that there are 2 clear acres for house, septic, well and driveway construction and the remaining 10 acres that then could have the purchaser’s option to be deed restricted or put into current land use. Lot 3 is approximately 65 acres. It is the lot furthest away from Kings Hill Road. It also shows a single family residence on it. The hope of the KCG, LLC is that they will be able to work out an agreement with the Sutton Conservation Commission so that that lot would become undeveloped completely. The best thing that would happen if the application proceeds through is that there would be 2 buildable lots. The worst thing that could happen is that there could be 3 lots with houses on them. The previous plan showed how the 11 lots were laid out as compared to the 3 lots that the KCG, LLC is proposing. The new drawing shows where the proposed home sites are for the 3 lots relative to
where the approved house sites were for the lots before. What the KCG, LLC has done is to utilize the approved well location, house locations and septic locations for lot 17 which would be for the new lot 1; lot 18 for the new lot 2; and lot 10 for the new lot 3. The driveways are slightly different but they are utilizing as much as possible the initial part of the loop road that was put in since it has already been timbered and cleared. One driveway is a shared driveway for lots 2 and 3 and the second driveway is a single driveway for lot 1. It is the understanding of the KCG, LLC that there is a general precedent in the Town that the Town does not like to have extension of use of roads that are not currently being used a great deal longer than 1,000’. The furthest most driveway is 1,000’ from where Kings Hill Road connects to Penacook Road. Wells does not know if this is actually a rule anywhere in the Subdivision
Regulations but it is something that they felt that they should follow. In the remainder of the submission drawings, they have essentially utilized all the materials that where prepared for before for the subdivision including the various details, swales, ditches and culverts. They have also included drawings showing how the proposed driveways would work both in plan and in profile and section. This allows the Board to see that the driveways that are being proposed are buildable. Wells met with the Selectboard on December 22, 2008 to discuss Kings Hill Road because the existing approved subdivision has a significant level of improvements required for the 11 lots. Wells discussed with the Selectboard what their feelings were and whether they had other situations they had allowed for a lower level of improvement. At the end of the packet submitted there is a letter from the Selectboard making a recommendation to the Planning Board that the
“Cottage Road” detail be considered sufficient for this which is a 14’ wide gravel road with 2’ shoulders on either side and a minimum distance between ditch bottoms on either side. Wells submitted drawings that showed how the needed changes would be done for the 3 sections on Kings Hill Road that need to be fixed. Paul Parker, Road Agent for the Town of Sutton would also like an additional 4 to 6” of gravel added to the road so that the road may be crowned correctly. Wells stressed that they would like to comply with the upgrades but did not want to disturb the existing stone walls if at all possible.
Blakeman asked if anyone on the Board had any questions for Wells. Courtney asked if the KCG, LLC would be willing to add the gravel to the road. Wells stated that they would be willing. Betsy Forsham, Conservation Commission asked if the entire road would be gravel. Wells stated that it would indeed be a gravel road. Blakeman asked if the representative from the Selectboard had any comments. Robert Wright, Jr., representative for the Selectboard referred to the letter submitted and also that there by “lay bys” so that emergency vehicles going up and down the “driveway” could pass each other as necessary. He also stated that the Selectboard went back to the concept of “Cottage Road” standards as they are as high as a regular road which many of
the attendees are familiar with. These are the 2 principal things the Selectboard had and the applicants had offered to do the road repair of approximately 6” with a crown as Wells had described. The Selectboard was unanimous in agreeing to this. Wright also stated that all three of the selectman had signed their recommendation letter. They all signed separately and no one signed for any other member. Wells also stated, at this time, that he checked what the width of the gravel road on Penny Ante Lane and Park Avenue are and found that they are both 14’ wide. These measurements where taken before the snow fall.
As there were no other questions from Board Members, Blakeman took a motion to open the public hearing from Robert Wright, Jr. This motion was seconded by Carrie Thomas. Unanimous vote.
Blakeman inquired as to any abutter questions. Leslie Enroth was the first to speak. She felt strongly that the Planning Board should include a condition to the approval that no further subdivision be allowed on the property. She would like to see this on the deed and on the plat. Wells stated that the KCG, LLC would be willing to stipulate that there will never be more than the 3 lots. Blakeman reminded the attendees that this was a preliminary hearing and the final subdivision would be agreed on at a later date when all the paperwork is final. Wells asked whether this hearing was a combined preliminary final hearing. Blakeman stated that it was not. It was a preliminary hearing as there is more information that would be required as far as the lots, lot plans, and another
posting would have to be done. He also stated that the purpose of this hearing was because there was a concern by the applicants on the road itself and they could not discuss that in detail in a non-binding consultation. With this public hearing tonight, they can discuss this and have a recommendation on how the Board wants to handle this application as far as road upgrades but as far as the actual lots this is just a preliminary so the applicants would have to come back for a final hearing.
Chris Rowe, Fire Chief, Sutton Volunteer Fire Department Association, recommended that the road be widened to accommodate 1 emergency vehicle going down the road and 1 vehicle going up the road. He also stated that he would recommend that the road requirements follow the 2006 National Fire Protection Association codes of an unobstructed width of 20’. He also stated that he cannot justify a truck sitting there empty waiting for a loaded truck to come up the driveway. The trucks can pump approximately 2,050 gallons of water a minute while the tanker holds 1,500 gallons. Blakeman inquired as to the Fire Trucks width from mirror to mirror. Rowe stated that the smallest one is 8’6”. The largest truck is around 9’ mirror to mirror. He felt that he could work on
the requirements with the KCG, LLC. He also questioned the two driveways as one is quite long. There is enough hose to get from the house at the top on lot 3 down to the intersection or from the brook to the driveway. He is going to need some kind of turn around. At a major structure fire you are looking at probably 15 units plus men coming and going. He appreciates what the KCG, LLC is trying to do but the people building those houses have the right to a safe road. He would not want to call the Selectmen and tell them he has a $500,000 truck in a ditch. He would also like to have the driveway “mouths” widened to allow for turn around as the longest driveway would not be safe for an emergency vehicle to drive backwards on. He would also rather see the pull-off areas be wider and the hammer head would need at least 25’ in order to back a fire truck out of the driveway. Rowe did, however, express that he would be
willing to work with the KCG, LLC so that all these recommendations/accommodations would work for both of them. Wells stated that if they had to destroy the wall to accommodate these changes they would do it but they did not want to if at all possible. Rowe would rather protect what was already approved for the 11 lots then to change the requirements to fit the projected 3 lots. He also stated that he knew that the Selectmen had the final say as they “own” the roads.
Galluzzo commented that he felt that some of tonight’s issues were hinging around lot 3. He felt that there really is no lot 3 home site to date. Wells stated that he could not guarantee that there would not be a home built on lot 3. Blakeman responded by saying that they would move forward assuming that lot 3 would have a building on it. Thomas stated that the road would still not be wide enough for the fire trucks even with the two house lots. Galluzzo responded by reiterating that Rowe would be willing to work with them on this problem. Blakeman stated that it is “unobstructed sight distance between the driveways and Penacook Road”. He felt that it was a pretty straight shot. Wells stated that it is as straight as an arrow until you get to the last 100’ where it is almost dead level. Blakeman asked if there was an area where a pull off could be easily constructed. Wells stated that yes there was and it was shown on the plans near the middle of the road. Wells stated
that it was 34’ wide and includes the road which is 100’ long. Blakeman stated that it was 100’x20’ on the plans.
Forsham asked if the problem was with the 3 house lots and if only 2 house lots were used would this be as much of a concern. Rowe stated that this is a Class 5 summer maintained road and would have to be brought up to a code. Rowe stated that there is a state law regarding Class 6 road. Blakeman stated that it is a Class 5 summer maintained road and has a different status as far as the regulations go. Rowe stated that he had been working with the State of New Hampshire Fire Marshall’s Office as well as the Department of Transportation to make sure he has the right information for tonight’s hearing. Rowe reiterated that those people in those 3 homes have the same right as everyone else in Town to emergency services. Pulling a truck over on the side of a road on the way to a
fire is wrong. That truck should be able to go all the way to the fire and not have to pull over for an empty truck.
Blakeman asked Wright if he had any information on the summer maintained status as far as recognition. He asked if this was a legal status itself. Wright asked to be able to do some research and he would get back to him during the hearing.
Garrett Evans inquired as to the Homeowners Association/Protected Covenants. He wanted to know how this would affect the people who have already purchased lots at Meadow View and on the last lot and how would this affect the Conservation Commission. Wells asked at this time if they could make it a condition of sale that any residential lot within this development that was not used as a residential lot would not be obligated to pay any association fees or expenses. He was not sure if this was the precise way to word this condition but he felt that he could get guidance from his attorney and he was sure the seller would have to talk to his attorney as well. The intent would be if that 65 acre lot were just an open space lot, he did not see why they should have to pay the fees.
Galluzzo commented that he felt this had nothing to do with the Planning Board. Wells stated that he and his partner will make this a condition of the sale.
Wells stated that he needed to know tonight if Phase II of Meadow View would pass tonight as the closing with the seller had to be completed by December 30, 2008. Kezar Conservation Group, LLC did not wish to go ahead with the purchase if the Planning Board had any reservations regarding this project. He also inquired as to what else they needed to do to have a final application hearing. Blakeman responded by saying that when the Kezar Conservation Group, LLC comes forth with a preliminary application the information that the Board takes in is reduced. They can go with an incomplete set of plans with the metes and bounds for all the lots, the mylars. Completed plans, maps and mylars need to be submitted 10 days to 2 weeks before the final hearing. The Board could not have waived that
standard because the abutters have a right to see all the information. When you go forth into the final it will be another public hearing and more information can be taken in and the Board can look at certain aspects of this proposal that you bring up and make recommendations or get a sense of the Board as far as the road itself but the Board cannot answer every question unless you have specific questions. He recommends that if KCG, LLC has specific questions they should be brought up now but he can not prognosticate what other issues they might have and how this proposal will play out. Wells stated that he understood and felt that there were no better plans for the lots. They are agreeing that this should not be ever further subdivided. Their intent and their commitment is that it is a 3 lot subdivision forever. He stated that this could be a condition that is incorporated in the final application. He also reiterated that any lot that is
not used as a residential lot and built on would be excluded from fees and dues and expenses from the association.
Blakeman stated that any documents that were approved for the subdivision following through and to what extent they can be adjusted would have to be submitted to Town Counsel. Wells stated that this was an important issue that as the documentation is written now, per the current owner Mr. Zinder, states that as soon as someone no longer has ¾ control of the lots, which Zinder does own now, as soon as that drops then the agreements cannot be changed without everyone participating. Zinder has the ability to simply say that he has more than ¾ of the vote so he can change or add a phrase. They would need him to do that before the sale takes place. Blakeman stated that that would have to come before the Planning Board as a public hearing to amend the documents of that subdivision. Wells
asked if this would happen this year. Blakeman stated that to amend these documents that were approved for the final of this subdivision this would have to come back to the Planning Board as they do have review authority over it as part of the subdivision and that would have to be brought up in a public hearing. Wright explained that this was indeed true but he did not feel that this was the question being asked. He wanted to focus on the timing aspect of the application. He felt that the proposed applicant does not own the property. The proposed applicant is not going to own the property unless the proposed applicant has a reasonable assurance that this whole project is not going to become stillborn. He felt that Wells was asking for a sense of the Board members, not a final determination in any way shape or form because he cannot get one. The timing that is important is the timing for the closing. At this time he turned to the agent
for the applicant, Joe Burns, and asked him if he wanted to comment on this but the Board’s concern is focused on question (A) the Road and question (B) the concerns and populous of no further subdividing. At this time Wright, Board member wanted to comment on the subdividing issue. The Board was put in a painful situation a little over a year ago, which raised a comment when the Master Plan, which Joe Burns pointed out in an earlier discussion, when asked for a Master Plan what did the town want. There were a series of questions but by far the largest response was the townspeople wanted to maintain its rural character which was around 40%. The responsibility of the Planning Board is using the Master Plan as a guide. If the Master Plan is not used as a guide why bother to have one? At this time the Planning Board is in the process of putting together new regulations based on the Master Plan. So the Board looks at the totality, yes the
roads are important, enter and egress for emergency vehicles is a primary factor. But this part is not a deal breaker as it has been pointed out that this issue can be worked on. There may have to be some adjustments on the driveways but this is not a deal breaker. Wright went on to say that the Conservation Commission also has an interest in this application. He commented that if the Conservation Commission buys the property it is their perpetuity. But the applicant who said they are willing to be able to make sure that there will be no further subdivision thereafter, the Conservation Commission is basically getting what it wants and paying absolutely nothing. Burns interjected “accept for the control”. Wright went on to say that the applicant is really attempting to do a very important benefit to the Town both short and long range and so he, as a member of the Planning Board, ex-officio, is going to look at the totality of the
project and he is not going to make his decision based on one disparate factual item. He also stated that basis of the roads “standards of care municipalities – beyond requirements imposed by this section within the limits … duty of repairing and maintaining highways including performance of any act reasonably necessary to put and keep them in a condition suitable for travel thereon and is for the municipality to determine how fine and how perfect that highway should be”. This is 231:92, Section IV and Section XI. One thing if the town suffered travel part of highway to become widen as to travel the whole width was equally suitable to travel it is answerable for damages growing out of defects and the part so widen. And the part so widen makes him nervous to think of widening of a highway for that reason. And that is why the Selectboard discussed the lay-bys on 12/22/08. This is his own personal concern that he shares with
the attendees and the record. He is more concerned with the responsibility of the Town in a legal sense because the other two selectboard members are concerned from a practical sense. However, all 3 of the selectmen signed off on the recommendation as submitted.
Thomas wanted to discuss the covenants. Per the advice from the Town Attorney, the new application stands alone. Town counsel recommends that the Board revoke the current approval for the previous application before the Board approves the new application. She believes that this means the covenants that were attached to the previous application would become null and void. As Town Counsel refers to the new application and the road conditions, this new application stands alone if the Board revokes the previous application as it applies to this section of lots then the road conditions that were in effect for the previous application, no longer apply and the Board can consider a new application and she believes this may hold true for the covenants. Meaning the Board would be starting all over
again. Blakeman was not sure of this is a procedural aspect but felt that Town Counsel could be asked to clarify for members. Wells asked if they would rescind the existing subdivision requirements for Phase II, so they can adopt a new one. He felt that it could not happen until KCG, LLC owns the property. Blakeman stated that as far as the nuts and bolts of the Association’s documents, he does not know procedurally how that plays out. He could not give an answer to Wells at this time. Wells stated that he knew that the Board could not consider financial issues but for KCG, LLC it is less a financial issue then the road is. They are far more focused on what the Board members position is on Kings Hill Road. Galluzzo responded with the utmost respect to all involved, as he is looking at this application as a strictly business decision. He went on to say that he felt that the applicants are asking the Board members to make a
business decision whether they should buy this or not is the question. He felt the Board members have to give them some kind of guidance as to whether the Board members liked the idea or not. Speaking for himself he felt that what the KCG, LLC is trying to do by getting guidance for this project is before purchase was a good idea and he is all for it. The only thing that is in question is would Rowe whom he has the utmost respect for, be willing to work with the KCG, LLC to have rescue and fire apparatus accessible to the new lots. As Galluzzo states Rowe was willing to work on this issue and he felt that there could be a compromise to this issue. With everything taken into consideration he feels that the Board should come to some kind of conclusion at this hearing whether or not this makes sense for the KCG, LLC to go forward with this project. He is in favor of this proposal as Meadow View is going from 11 lots to 3 lots and will hopefully have
the 60+ acres as conservation zoned area. The only issue he feels that needs to be addressed tonight is the road and whether or not the emergency department can negotiate with this.
Joe Burns, who is working with the KCG, LLC stated that when he was first approached by the buyers they stated they did not want to do any work on the road. He was surprised when he heard they would be willing to fix up the road. He feels it makes common sense to him and they would be willing to pay for the improvements. He asked if they could vote on the road tonight for them so that there is a vote coming from the Board in regards to the road issue.
Blakeman stated that he felt the intent was to have some sort of recommendation in the minutes so there is something on the public record.
Wells stated that there would be a lot of money laid out and he does not want to do this and then discover later that he was in error.
Blakeman questioned that if they do not purchase the property what will happen to it. Is it still for sale January 2, 2009 for the same price? Burns stated it would be an 11 lot subdivision for sale. Wells stated that Zinder has had some success in Florida earlier in the year. This subdivision is a huge failure for him and he wants the tax right offs this year. Galluzzo stated that the “horse has left the barn”.
Evans inquired as to the Wetland Permits. Are the existing permits being used? Wells stated that they are. Evans also wanted someone to show that these permits went through the NH Division of Historical Resources as they have discussed this before with DHR. To the best of Evans’ knowledge this has never been done. Evans has talked to the DHR and he was told that permits can be revoked if they have not been in complete compliance.
Wells stated that the only wetlands crossing is 2 very small ones by the driveway on lot 3. So if lot 3 does not get built on there are no wetland crossings. He understands where Evans is coming from but felt that if someone sitting in attendance wants to file a complaint and they have bought the property they will have to do the proper paperwork then.
Blakeman asked if there were any more comments from the public or abutters. Rowe asked if the Board was done with the road issue. Blakeman stated they were going to close the public hearing and the Board would go into deliberations. If Rowe wished to exit the hearing he could do so.
Charles Ash, Attendee expressed that he was all in favor of this new plan for Phase II of Meadow View.
Forsham has reviewed the covenants of the previous application. She inquired as to the septic systems that were required on two of the 8 lots. She asked that if this “covenant” was dissolved would this mean that this requirement would be dissolved. Blakeman stated that again that would be a covenant issue and guidance from Town Counsel would be needed. It does not sound like it can be brought back with Zinder changing it himself if this sale does go through. If there are changes that have to be made to the covenants then it would have to be made with everyone’s agreement. The covenants that have to be changed with Planning Board approval would have to have Town Counsel input as to procedure.
Forsham, representative from the Conservation Commission wanted in the record that yes the CC would certainly consider purchase of the acres in question but they have criteria they have to abide by and they need to wait and see what the Planning Board ruling is before any purchase is made by them. If the KCG, LLC wants to put easements on the deed it can be done without the involvement of the Conservation Commission, they could help with stewardship fees and then the lot could be sold with a conservation easement on it.
Blakeman stated that basically the Board has to review it as a building lot and then if in the final they want to present it with an easement that documentation could come in or it could be done after any type of approval. Wells, KCG, LLC stated he did not think they would do this.
Blakeman stated that the Board would have to look at it as a building lot. Wells stated they would be willing to agree that there would be no further subdivision but they figure if someone wants to buy a 60+ lot they should be able to do what they want to otherwise they are making it a less saleable lot.
Robert Wright, Jr., made a motion to close the public hearing. Carrie Thomas seconded. Unanimous Vote. Peter Blakeman, Acting Chair stated that the public hearing had been closed.
Wright wanted to make a comment to Article XI in the Subdivision/Site Plan Review Regulations “When in the opinion of the Board strict conformity with any portion of the Site Plan Review Regulations poses an unnecessary hardship to the applicant, upon written request of the applicant, the Board may grant a waiver, provided that such waiver is not contrary to the spirit and intent of these regulations”. He requested that this be put in the Record.
Galluzzo asked if the Selectmen were all for this application. Wright stated yes they were.
Thomas stated that even the regular road standards were not up to 2006 fire regulations as the footage for a road now is requested to be 18’.
Blakeman stated that the clear width included the shoulder as well. This would be 18’ and 2’ shoulders which would be 22’ clear width. He felt that the Board could look at this road in its totality as well and it is a very straight shot with the sight distances. He felt there was not going to be a problem with 2 trucks meeting each other in the middle of it. The only issue could be the minute or so that one truck would have to pull into the turn out and the other truck would have to pass. He felt that there are roads existing in Town now that do not have turn outs.
Thomas pointed out that there are actually 3 places where a turnout would be. One is at the intersection of Penacook Road/Hominy Pot Road and then a pull out place from the driveways. This would give 3 places where trucks could get over and pass each other. Galluzzo stated that it is flat and you can see from one end right to the hillside.
Blakeman also wanted in the record as he mentioned to Wright that when they were personally looking at building and having a driveway put in of about 1000’ along the Class VI portion of Poor Farm Road, he was presented with a “Cottage Road” standard which meant he had to upgrade the road to 14’-2’-2’. He did not think this was really any different when you go from one house to 3 houses.
Thomas felt that as long as the Selectmen, who technically own the roads, have signed off on this then the application it is fine with her. Galluzzo was in agreement with her.
Wright asked that if it was a sense of the Board then the procedural vote would be for a preliminary vote not a final vote. Galluzzo understood this but felt that at least the Board could give some guidance to begin with and what would need to be done in the future.
Thomas was hoping that this would happen years ago. Meaning she was hoping that someone would buy this piece of property and protect it. Galluzzo stated that this was a great thing for the Town to have this happen.
Blakeman stated that he saw the Road Agent, Paul Parker and he had mentioned that he was wondering what would happen if there was further subdivision up the road. Blakeman felt that it would be a stand alone application. Board members felt that this would be a separate issue.
Thomas asked if anyone new of the “summer maintained” road guidelines. Wright stated that there was really nothing on “summer maintained” roads except that in some “summer maintained” roads they put a pile of dirt or concrete barrier at each end of the road.
Blakeman asked if there was a sense of the Board.
Wright stated that as a procedural end he could not make a motion as he had already made a recommendation as a selectman.
Motion made by Courtney Galluzzo for preliminary approval with the recommendations of:
1. King Hill Road be improved to “Cottage Road Standards” those being 14’ travel surface, 2’ shoulders, improved with 4” to 6” of crushed gravel and drainage as required by the Road Agent.
2. The road improvements to include a 20’x100’ lay-by and a hammerhead at the last driveway sufficient enough to allow for entrance and egress.
3. The applicant offered and the Board recommends that no further subdivision will be done.
Blakeman expressed that there will be other procedural details that will come forth with the final application. This is to give a sense of the Board preliminary approval which he felt that Wells was looking for. The applicant will have to come back with a completed final application.
Carrie Thomas seconded. Unanimous vote.
Motion made by Robert Wright, Jr., and seconded by Carrie Thomas to close this case and open up to the public for any more comments.
Wells inquired as to what the final application steps would be. Blakeman stated that they would have to comply with the “check list” for the Final Application Process in the Subdivision/Site Plan Review Regulations. The next hearing for the Planning Board will be on January 13, 2009 at 7:00 p.m. at the Pillsbury Memorial Hall should the final application be complete and ready for submission. Blakeman also stated that Wells needs to look at the covenants and review them.
Robert Wright, Jr., made a motion to waive reports and correspondence. Carrie Thomas seconded.
Carrie Thomas made a motion to accept the 11/18/08 meeting minutes as submitted. Robert Wright, Jr., seconded. Peter Blakeman, Acting Chair will review the 12/9/08 meeting minutes and forward on to the Land Use Coordinator.
Meeting adjourned.
Respectfully submitted,
Linda D. Ford
Land Use Coordinator
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