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Town of Sutton
Planning Board
Hearing Minutes for April 14, 2009
Meeting called to order at approximately 7:03 p.m. Members attending were Carrie Thomas, Chair; Robert Wright, Jr., Paul Raynor sitting for Courtney Galluzzo; David Burnham; Peter Blakeman; Joe Burns and new alternate member, Roger Wells, sitting in for Dan Sundquist and Linda Ford, Land Use Coordinator.
Roger Wells and Tom Paul presented the Board with the Mylars that needed to be signed for the Kezar Conservation Group, LLC. Robert Wright, Jr. offered to take them to Concord.
1st Case – Continued Hearing for a Minor Subdivision/Condominium Conversion for Priscilla and Alan West. Property located at Grist Mill Road, Map #6, Lot #416,245. Matt Landry from Mitchell and Bates was in attendance as well as Priscilla West. Requested information was submitted to the Board from Town Counsel, State of NH Fire Marshall and a letter from Mark Connelly, Attorney. Per Mr. Landry septic information from 2006 was a replacement not a new one so there is no new permit as the original approval was done in 1996. Burnham asked about the designation of parking spaces. Landry showed that on the newly submitted plans there are designated parking spaces for each unit. Wright reviewed the letter from the Department of Safety, Division of Fire Safety, State Fire
Marshal’s office “every sleeping room is required to have two means of escape and it must be standard doors and stairways”. There is also a second letter that at the time, the request for a variance which was approved subject to the condition that “the area located on the third floor be allowed to remain and utilized as living space only”. Wright wanted to make sure that on the plan the third floor has a bedroom it is the acceptance of the applicant that anything on the third floor that does not have a two measurement access and egress is not to be a bedroom. He wanted to know if his understanding is correct. Landry thought this sounded right but he is not a fire marshal. Wright apologized that his question was unclear. Wright stated that the fire marshal is stating and there was a waiver on the condition, back in 1998, that the third floor not have a bedroom. Wright wanted to know if this had been
surreptitiously changed over the years and nobody paid attention. What Wright wants to add is that it is in part of the record as a condition and it was centered as a waiver from the fire marshal that there would be no sleeping quarters on that floor. It is Wright’s understanding that there is not going to be any changes and this is what the whole predicate of this application is maintaining. Landry stated this was true. Wright continued to say that he wanted to be sure that it is accepted by the applicant that that specific rule still applies to the third floor. Wright wanted to make sure that everyone is on the same page regarding this issue. Landry stated that this was a different subject altogether. The application in front of the Board is requesting is an approval on any existing conditions situation and there might be other situations in the building that are unacceptable and not to the Board’s liking, but unfortunately
due to state statute, numerous letters from Town Counsel and his client’s counsel, unfortunately the Board cannot require any alternations or changes. Wright apologized for not explaining himself very well and this is no one’s fault. Burnham interjected that those conditions exist as they were back when. Mrs. West interjected that she understood what Wright was looking at. She explained that a waiver was obtained to have a bedroom on the third floor which has the window for egress. The fire marshal allowed this bedroom as long as the window was brought up to spec. There would not be two bedrooms on the third floor only the one. Thomas reviewed the new plans and stated that the parking spaces looked like they were of sufficient quantity for the number of tenants in the building. She asked if there were any other problems. Burnham asked about monumenting. Landry stated that monumenting was not a requirement for
condominium conversion. Burnham went on to say that there had been some fairly serious discussion as to how the people are going to, in the future, be able to be certain of their unit’s limited access/usable area for each unit. He thought that there was an agreement and that it would certainly clean it up if those people had some way on the ground to figure out where their usage begins and ends. Landry stated that they opted not to mark this on the ground as it is noted on the plans. Roger Wells asked to be brought up to date on this application as this was his first meeting. He thought that the application was to convert existing structures to a condominium. He inquired as to how many units there would be. There would be Two Units. Unit One: the first floor is a retail business; the second floor has one two bedroom apartment and one two bedroom apartment with a third bedroom being on the third floor. Unit Two:
is by itself and is a one to two bedroom unit. Building One will have one owner who has the option of renting out the three units. Building Two will have its own owner. Wells wanted to know what the Board is supposed to be giving permission for. Thomas stated that it was going from a rental property to a condominium property. They are in front of the Planning Board because as it stands now, the Town of Sutton has no regulations for condominium conversions. Landry stated there would be no proposed changes except for the change in ownership for Building Two. Wright asked to revisit the third floor plan again. He referred back to the plans submitted. Landry explained the floor plan to him and showed him where the egress would be from the third floor to the roof of the porch below. Wright wanted to know if the stairs are the primary exit and the window is the egress onto the roof of the porch. Wells felt that there
were all kinds of BOCA rules for which must be complied with no matter what the Board says. Wright stated the reason for his questions are because the state fire marshal stated there would be no bedroom and his understanding is that there would be no change in this. And this is why it could go through. Wright felt that if there was no change this application could go through. His understanding is that there would be no change and wants to be sure that the third floor apartment does not constitute a change because the statement has been made by the State Fire Marshal that there should be no bedrooms unless there is two methods of egress. He realizes that the owner has explained it to him but he wants to be sure that his understanding is correct and that they can go out to the second story roof and then are able to get off the second story. Raynor stated that there is no requirement to provide access from a second floor window to the ground.
As long as the window meets the dimensional size 5’x7’ that’s all you need. Wright was okay with this. Wells interjected that he thought the only thing that was changing was the ownership. If there are two owners on this property instead of one, is that a change of use? Burnham stated that it would still be used as apartments and commercial use on the first floor. The usage does not change just the owners. Wright just wanted to make sure he understood and thanked Raynor for clearing it up for him. Wells asked for more information with regards to it not being a change to whatever was approved whenever it was approved in the past. Wright confirmed this. Wells asked if what is there now is what was in fact approved before. His question is whether it got approved for the way it is being used. Thomas confirmed this. He would not recommend this being done, but if there is no basis for undoing
it then why undo it. Burnham stated that they did get the variance when it was needed. Thomas asked if due to the contents of the Town Attorney’s letter if any Board members had any more questions. Thomas asked if the public had any questions and/or comments. Paul Raynor made a motion to close the public hearing. Robert Wright, Jr. seconded. Unanimous vote. Robert Wright, Jr., made a motion to approve with the proviso that it is clear with the owners that it has come to their attention that there is no change in use. Roger Wells seconded. Wright questioned the parking. Burnham stated that the parking spaces are designated on the plans. He also stated that the applicant has chosen not to monument. Thomas stated that they are not required to. Burnham felt that he probably could have found something in the Surveyors Standards about it because he knows that every condominium project he has worked on,
the common area has been monumented so that it was reproducible in the future. He does not agree with what is being done whatsoever and he feels they are shortcutting a very important component to the owners of the property. However, the Board has no regulations that address this specifically. Roger Wells was appointment so sit for Dan Sundquist as Joe Burns arrived at approximately 7:25 p.m. as well as Peter Blakeman. Thomas asked if there were any more comments, questions or concerns. Motion on the table is to approve the application as submitted with the clear understanding that the uses cannot and shall not be changed. This motion was restated so that Board members understood what is being voted on. Wright stated that the contention is that and the applicant seems to think that because the way the law is written if there is no change from one ownership to condominium ownership there is no change, there is nothing that prevents a
planning board from putting conditions that being said, he wanted on the record, that is how the understanding the Board will comply with that if there will be no change to and that was how the applicant has presented it and that is it. Burns asked if this was forever. Wright stated that they come forward at a latter time. Thomas asked if there was any more discussion. Application was voted for unanimously.
2nd Case – Minor Subdivision – Bruce B. Ellsworth/Blaisdell Lake Protective Assoc. Property located at Route 114, Map #2, Lot #704,486. Representing the Blaisdell Lake Protective Association were Bruce B. Ellsworth and David Young. Robert Wright, Jr., and David Burnham recused themselves from this hearing. Ellsworth gave a brief history of the property in question. The Blaisdell Lake Protective Association is a non-profit organization comprised of members/owners around Blaisdell Lake. For the soul purpose of maintaining the dam, maintain the level of the water of the lake and to watch and to protect the environmental and ecological issues around the lake. The BLPA monitors the quality of the water and potential weeds and works closely with the Department of
Environmental Services. In 2004 the Wright family approached the BLPA and offered to give them the beach, the beach which they had historically owned. There was a vote of the Association to accept it and in 2005 it was accepted. In reviewing the deed that was given to the Association they found that the beach was not just the beach. The property that was being transferred to the BLPA extended from Brown Road at the corner as you come down off the hill headed to Bradford and extended all the way across to the other edge of the lake, the so called “Sheep Dip Culvert”. The BLPA looked at the property which has a lot of docks and private usage along the area and determined that this is not something the BLPA wanted to retain responsibility for. They did not want to have the liability for this piece of the property. The BLPA embarked on a mission to subdivide this property. They had previously approached the Town and asked if
it would be possible to subdivide it at which time Town Counsel stated to the Planning Board that it could be done with variances, which there are letters in the file that confirm this and they now come before the Board with a new application asking for a subdivision of this piece of property. There is a newly formed organization, The Blaisdell Lake Dock Owners Association, which is prepared to accept this piece of property and the BLPA will turn it over to them with certain conditions: Even though many of the docks there do not relate to the folks that live on the other side of the road which has developed over time that those away from the lake have put docks in. We have conditioned that all those who now have rights and opportunity along that piece of property will continue to have those rights. They have also established that there will be no new docks installed along the lake. They have established that no docks that are currently there need to be
removed. They have established that there can be no changes in the use of this property and no new structures can be built, no commercial use can be made out of it and it will remain as it is. The BLPA’s interested is simply in divesting themselves of this portion of this property so than they can focus their attention on the beach.
Thomas asked if the application was complete. Ford stated it was. Wells asked if the parcel in question was parcel 2. Ellsworth stated yes it was. Blakeman asked if the BLPA had talked with the State Department of Environmental Services about the docks and are they okay with this. Ellsworth stated that he submitted a copy of the memorandum he submitted to the State and he informed the Board that the State stated (2 years ago) that they did not have any interest in this application and did not require a state submission for approval under the statute. He reviewed the statute and he felt that this statute focuses more on shore issues. Blakeman was curious about the wetlands. Ellsworth stated they had spoken with the wetlands people and got the same answer. He does not,
however, have written confirmation for this. Burns asked if all the docks shown on the plans are legal or either grandfathered in. Wells asked if the BLPA had established a legal arrangement with the BLDOA as to the rules that had previously been listed. Ellsworth stated that this has not been done yet as the Association had recently been formed. They have not started to negotiate with them at this time. When the BLPA says negotiate with them they are not looking to make money from them as this will be a “free passage” of property rights. But the conditions mentioned above will be in any contract or sales agreement with the BLDOA. If the desire of the Board is to have these conditions on the subdivision plat they would be willing to do this. Thomas asked if any of the current owners of the docks want to sell the docks in the future would they be allowed to do this. Ellsworth stated that this would be up to the BLDOA. But there where two questions that came to his mind one
being the BLDOA would take responsibility for this and the argument could be whether an unapproved dock could be transferred anyway. Blakeman stated this was a good question as on many of the big lakes, you can buy boat slips, etc. and this gets to the question of do these docks that are there now run with a particular piece of property? Ellsworth stated that not necessarily as there is no relationship between the location of the dock and the property across the road. Burns asked if someone had deeded rights. Raynor asked if they were “squatters” rights. He also felt that there was an assumed connection between the off shore houses and the docks. Blakeman thought that he understood that some of the owners of the docks are one tier behind or across the lake. His question is is there a connection between the dock on the lake and a house a road or two roads back and is this going to be spelled out. Burnham, Surveyor for the BLPA,
stated that there are actual rights that shows to the 90’ easement which is as near as they could determine legally. Burns asked if someone has an easement on this. He was told yes by Burnham. Ellsworth stated that there were a number of easements and rights-of-way along the property. Burnham stated that there were a number of them that appear to be bogus that they can not come up with a justification that would lead anyone to any legal rights that the person may actually have. Ellsworth stated that there are other various deeds that give permission in some form of the other to use the access and there are some that have docks that correspond with a building that is not along the waterfront but is up the hill, etc. Burnham asked if the direct question is in correlation to a parcel of land, the 90’ parcel is the only one they know of and the rest of them the only correlation would be to the deed titled to the land they are on which is
going to be transferred. Thomas asked if the houses right across the street from these docks their property lines do not extend to the water. Ellsworth stated this was right. Burns interjected that they may have a dock or it may be someone else’s. Wells asked if they are in essence writing a lot number for each dock so that when someone sells a piece of ground that dock goes with it. Burnham stated no this was not the case. Wells asked how they would stop more or less docks from occurring. Burns stated that there could be no more docks put in. The state will not allow it. Burnham stated that state regulations will not allow any more than what is grandfathered in as they do not have an adequate frontage to be able to add more. Wells asked how they would continue to define whose dock belongs to whom. Burns stated that this was the question. Ellsworth stated that the BLPA is not and this would be up to the
BLDOA to determine if and how they want to separately identify each of those docks. Blakeman stated that what they are trying to get at is the Board may need something that shows which dock goes with which property so it stays with that property. It seems like if it is not specifically written out, so that it is legally recorded now there is no way to control it. Ellsworth thought this could be controlled through the association. Burnham stated that they do not have anything designated on paper either so that they know which one goes where. Ellsworth introduced Betsy Fowler who represents the BLDOA and she may have some insight as to this issue. Fowler stated that they had just submitted their part of the agreement to the State and each dock has a lot assigned to it in this agreement and the bylaws and it is the current house/lot that is using that dock and in the bylaws they are working on they are working on a non-transfer so if the house sells
the dock goes with it. This is in the articles of agreement that has been submitted and accepted by the State. Wells asked if the articles had language which would prohibit the dock from being used commercially. Fowler stated that it is not in the current articles but is something they can put in the bylaws which are in draft form. Ellsworth stated that it is not their intent that any commercial activity takes place there. Fowler stated that each of the current dock owners agreed to assign the existing docks to the lot that is currently being used. Burns asked if the question to the Board was should this be on the plans. Blakeman and Thomas agreed that this should be on the plans. Ellsworth stated that they would be amenable to putting whatever the requirements the Board would chose be put on the plans. Thomas thought that before the Board signed any kind of mylar the Board would have to have the numbered lots and the numbered
docks clearly identified on the plans so that it would be on public record. Burns stated this would help people when they go to transfer and they have the corresponding dock with the deed. Wells stated that this would not be hard to do as you could number the docks 1, 2 or whatever and would correspond with the lot. Wright asked if the lot number would match the dock number. Fowler referred to the tax maps but as Burns stated that some of the tax information is incorrect. The houses that may be a problem would be the 1 or 2 houses on the 2nd tier. Burnham had an issue with how this could be done. Wells thought that if you numbered the docks 1-8 and do a chart and dock #1 would have next to it the lot number and current owner that goes with it. Thomas thought this could be a simple thing to do. Wells stated that then if there comes an argument later on you have this information. Burnham said there was
documentation as to where it was and which one was the back ownership. He thought this would be a good idea he just didn’t know how to get this done. Burns stated that the having the notes about the restrictions that the BLDOA is going to have will help at least if they are either on the plan or referenced on the plan. Wells also thought that it would be helpful if there was a brief sentence that stated “this is for the use of the lot owner so identified and not for commercial use” so that you do not get into arguments between neighbors regarding renting spaces of your dock to others. Ellsworth stated they would be prepared to include on the plat any conditions that the Board may recommend. Thomas asked if there was anyone in the public who wanted to speak up. Robert Wright, Jr. stated that the whole genesis of this was to mitigate or remove liability. If push came to shove all of the docks would be gone and there would be
no-one allowed to use it and they did not want to do this. They want to keep the lake as open as possible so that people can use it. There will be no changes to property. Once there is no change to property by definition – no commercialization, no renting, etc. the whole purpose of this was to remove or mitigate liability. Because of the liability the Association will be limited. That is what the whole thing is about. What Wright would be concerned with being a member would be are they going to change anything about the lake. The answer is no. Are they potentially going to make any changes to the lake? The answer is also no. Are they going to commercialize? No. Are they going to add anything? No. And that is really where he would put his focus on. But he has recused himself. Thomas asked if there was a public access dock on the beach property or anywhere. Burnham stated no. Thomas asked if anyone else could put their boat into the lake. Ellsworth stated that
anyone could put their boat in the lake but you have no dock. There is a gate and there is access to anyone who wants to put a boat in for a charge of $10.00. There is also an opportunity to get a season ticket if they want. This is available to the public. Blakeman wished to add a couple things that Wright had discussed. He mentioned that there is going to be more use of the beach which he wished for more details. Ellsworth stated that the use of the beach is and has been and will continue to be limited to members of the Association except for in some cases when they have had a request. Bradford Elementary School has asked to bring some of their students up which they have contracted to do this for a certain period of time. But, it will continue to be basically a limited use to Blaisdell Lake Protective Association members. Blakeman asked what the use of it is now and by whom. Ellsworth stated that it has not changed and
it will not change. Blakeman asked who owns it now. Ellsworth stated that the Wright family traditionally owned it and they restricted it. When the BLPA took it over they expanded it to make sure that all Association members would be able to use it without any charge. Blakeman stated that this presents a problem in his eyes as far as how the State will consider this because they are now giving rights to basically everyone around the lake to use the beach. He did not believe the Shoreland Protection Act allows them to give other people rights to a single parcel of land unless that was already in place prior to the Shoreland Protection Act. The State said they were okay with the docks here and with the subdivision but he did not think that they would be okay with taking a beach which was used and controlled by the Wright Family and then because that was given or sold to the Association now the Association allowing all the land owners rights to that
beach. Burnham stated the initial usage has changed. Blakeman and Burns agreed with this statement. Blakeman thought this would truly need a letter from the State saying that they were okay with that. Ellsworth stated that the BLPA would look into this. He would bring this back to the Boards attention. He suggested that this might not have an affect on the Board’s consideration of whether or not the subdivision was reasonable or not, because they really are two separate issues. One is the issue of disposing of a portion of the property and the other is the use of the property. Blakeman does not disagree with this. Blakeman went on to say that the other issue that Wright brought up was to sort of disregard the attaching ownership of a dock to a particular lot is the intent of what the Board would like to see because if he is not mistaken the Dock Owner’s Association is only going to be members of people who have docks
right there now. This question was referred to Ms. Fowler. She stated that the only members of the BLDOA where in fact the owners of the docks at the lake now. Blakeman asked how many members this would be and he was told approximately 11. Ellsworth stated that there were some docks not on the survey because when the survey was done some of the docks had been taken out for the winter. Blakeman stated that the ownership is very important and attaching the dock and use of the particular dock to a property is what the meeting was all about. He believes that if a dock is being used by an owner it should be record somewhere. Burns also thought that by having the size of the docks on the plans this would be to the advantage of the BLDOA if in the future there was a title search it would be listed already. Ellsworth said this could be done as he already has the information. He is questioning why this is an issue with this application
and more importantly he does not think that anyone who has a dock there could make any modifications to those docks without getting State approval anyway. Blakeman stated this was the point. This would give the Board a baseline to work with. If the State wants to allow for bigger docks this would not be an issue as long as the permits are done but the Board needs to have the baseline of information to help future owners protect their interest in what is there and it would be much clearer. Ellsworth stated he would do this. Bethany Bourcier, dock owner, asked for clarification on rental/commercial. Would this mean that owners could not rent their cottages out? The clarification would be that they could not rent the dock out for the season but the home and dock would be a rental. This question was due to an issue in New London when a residential dock was rented out as a commercial dock. Burns stated that the more detailed the plan
is the better it is going to be for everyone involved in the Association. Ellsworth stated that this would help in years down the road. Ellsworth stated that one of the conditions that he suggested that there be no additional docks or slips would prevent someone from renting the other side of their dock. They also included no additional structures so if someone wanted to make a very narrow MacDonald’s there this could not happen. So the addition of any new structures was a condition that the BLPA was prepared to include in their agreement with the BLDOA. Bourcier also asked about the State Right-of-Way and how this would be taxed for future consideration. Burnham stated that the State has the right-of-way. He does not know how this will be done as there is technically no taxable property or land that he knows of. What it is is a fee title of ownership and there are a number of rights to go across that to the owner of the land
underneath what the right-of-way is on. That right-of-way is only allowed to have certain things done with it. Burns stated that the fee title owner is the BLPA but is going to be the BLDOA so he does not think this could become a taxable piece of property. Ellsworth stated that the Town’s tax map shows a taxable identified piece of property as the beach and does not show any identifiable tax on the area that they are trying to dispose of. Burns stated that this may change. Blakeman guesses that the question is that the Board is looking for a little bit more information on the plans and does the Board want to get this information in front of them before they deliberate on this application. Burns stated that the Board does need to have it. Ellsworth wanted to remind the Board members that as an alternative they could simply condition any approval on what the Board members want for additional information. Blakeman stated that if
there were any further questions they could not ask them if the application was to be approved before all the requested information is received. Ellsworth understood this. Information requested from the Board is as follows: map delineation of ownership of all docks and dimension of all docks and these should be put on plans, covenants and restrictions with the BLDOA on plans, no commercial use, no new structures, etc, and clear up the usage on Lot #1. Burns asked if this would interfere if they own property they are subdividing the property. Ellsworth stated that it was open to new members only. Blakeman stated this was within the purview of the Planning Board due to this being a subdivision because of the use of the property by subdivision. Wells asked Blakeman if they weren’t subdividing what would he be saying. Blakeman stated that the Board would not have any control, but because they are subdividing, the Board has some
control and he may be way out in left field but this is something he is concerned about because he does not think that the BLPA will have any rights to use that beach. Burns interjected that he felt that Town Counsel should weigh in on this. Ellsworth asked how Blakeman came to the conclusion that they own the beach and that they cannot use the beach. Blakeman stated that the Shoreland Protection Act specifically does not allow it, very specifically. Ellsworth asked does not allow what. Blakeman stated that they do not allow funneling down. What they have done and what is written in is on all the big lakes and a lot of small lakes too a developer would purchase a small piece like this and then have 200 acres and all those people would have a right to use that piece. Ellsworth stated that this is what they are specifically trying to avoid. Burnham wanted to know if someone from the Association goes to the Shoreland Protection people
and simply explains to them “listen we are there to protect and preserve this lake, we are a controlling force on this lake, will you give us a letter stating that you will let this go”. Ellsworth stated that he and Burnham have been working with the Shoreland Protection people. Blakeman understood this but what he is looking for is a letter from Shoreland stating this. Burnham felt that in the future they are going to have new members and it will not necessarily mean that the members are going to all be members all at the same time. Blakeman stated this does not matter. Burnham knows this but how can the Board say no with an Association such as this as there isn’t going to be any further use. Blakeman is not saying this. Thomas asked if this would be grandfathered. Burns/Blakeman/Burnham stated no. Thomas thought that because the Wrights allowed this wouldn’t it be grandfathered. Raynor stated no
because it was a family beach. Wells stated this was a crucial point. He felt that if some research was done you could establish a sufficiently decent argument with Shoreland to allow this to happen because in fact it was being done before. Burnham asked if anyone new of another way to do this as he does not. Wells stated that the fact that the ownership has changed seems to be mute. If the “rights sold it to the wrongs then the wrongs couldn’t do this” (). Blakeman said this was right and he thought that in his mind it has to be established. Blakeman stated that if they could establish that the Wrights were granting people the right to use that beach all along than he believes this is the argument that Shoreland needs to hear. He does think that if that was not the case, then the Board cannot allow a subdivision knowing that that is going to be the use of that property. Ellsworth said that it would be very
easy to document that this piece of land has been used by the public since he was a very small boy. Blakeman felt that this is what needs to be done. Wells thought that if someone went to Shoreland and asked them how they could approach this they could find a way to come up with an answer to this issue. Burns stated that their main interest is in protecting the water and they will work with them to make this happen. Burnham asked if this was the best first approach. Ellsworth asked if the Board would like this as part of the application. Blakeman stated that it would be cleaner but if it came down next month and it wasn’t there he would not object. Thomas asked how long this would take. Ellsworth stated that they could be ready in two weeks but this does not allow enough time for proper procedures. He asked if they could be put on the May 12, 2009 agenda and if they need to reschedule they will let Ford know.
Blakeman does not have a problem with the overall project but feels that there are a lot of little details that need to be nailed down for everyone’s benefit. Board members thought this was great that they are clearing this up for all the owners around the Lake. Joe Burns made a motion to continue this public hearing until May 12, 2009 at or before 7:00 p.m. Roger Wells seconded.
3rd Case – Design Review Phase – 6 Lot Major Subdivision – Matt Falvey. Property located at Baker Hill Road, Map #8, Lot #936,403. Thomas stated that this application is in the design review phase and is not complete to date. Burns asked for clarification on this. Blakeman stated that the design review phase is a step above the non-binding conceptual. Thomas stated that they were coming in for a non-binding consultation with the Board previous to making a formal application for subdivision. This was per Dan Sundquist, Chairman of the Planning Board. Blakeman explained that there were 3 steps to the application process: non-binding conceptual review which is general comments with no abutters being notified; the design review phase which is when the abutters
are notified and the applicant submits what information they have during a public hearing so the Board can go into detail and make any requests for further information; then the final application phase is when all the information has been gathered and the check list is completed. Tracy Sweeney, Land Surveyor with Richard Bartlett and Associates representing Matt Falvey was in attendance. This is a major subdivision with 6 lots on a parent tract of 21.59 acres. They are proposing a subdivision with various lots. Mr. Sweeney referred to the plans submitted to the Board. The lots range from 2.28 acres to 5.24 acres. Sweeney referred to the October 28, 2008 meeting where they came for a conceptual hearing. He stated that some of the suggestions from that meeting where staking of the lot lines and staking of the proposed driveways. After this was done Paul Parker, Road Agent, reviewed the driveway locations as they are staked out.
The applicant is at this meeting to get a little bit more information for the final design review phase and be able to present the application. Sweeney asked stated that Mr. Falvey thought that the current locations are the ideal site locations more from an aesthetic value as there are beautiful views whether they are practical or not this needs to be determined. Blakeman asked if the shaded areas on the maps where the slopes over 25%. Sweeney told him yes. At this time Ben Hammond was introduced as a representative from Richard Bartlett and Associates and was asked to join in the discussion. Blakeman stated that he had had an informal conversation with Paul Parker, Road Agent, who stated that a couple of the driveways might be better if they were combined due to the sight distance. Blakeman also stated that he thought that the Board would need something more formal from Parker for the record. He also thought that the driveways in
question were the ones on the upper corner. He asked Sweeney what they were using for footage for sight distance. Sweeney did not have a conversation with Parker but Hammond was asked to look at the driveways and stake them out per the driveway criteria of the Town. Wright asked to review the lot loading calculations. His understanding is that the 2 acre requirement is a “buildable” lot and with the weighted averages his understanding is that this is less than a “buildable” lot. Wright asked Blakeman for clarification. Wright asked if it was a 2 acre buildable lot. Not a contiguous but buildable. Wright had an issue with the square footage for lot 3. Blakeman asked if this came out of DES or the HISS lot sizing the Town has. Hammond stated that the top chart was from DES the bottom chart was from the Town of Sutton. Wells confirmed that the bottom chart was the Town of Suttons and that the lot
in question was Lot 4, not Lot 3. Hammond stated that there was ½ and acre under the 2 acre minimum that was not buildable. The client is aware of this and adjustments could be made as the Board is still in the design review phase. Suggestion was that the lot line between lots 4 and 5 be adjusted so each lot is the 2 acre buildable lot size. Wells asked if the Road Agent okayed the driveway with a snaking back for lot 3 and he would like to see how the driveway would be put in on lot 4. Sweeney stated that this had been looked at and switchbacks may not work and may not be economically feasible but moving the line southerly could create another little pocket down close by the road which may be more feasible. Again, these are possible house locations that could be placed up through there and the client would like to have the views up on top. Wells understood this but felt that a little more creative lot lining for 3, 4 and 5 could be
done. One suggestion he has was a shared driveway. Wright read into the record the comments from Dan Sundquist, Chairman as written:
“1. The topo mapping shows extensive steep slope areas on Lots 3, 4, and 5. I do not think Lot 4 is buildable without excessive site development (blasting, grading, etc.) to get a driveway into the proposed house site to the rear of the lot. Lot 3 will have problems, too. Site drainage along these driveways will lead into town ROW and ditching, and this needs careful evaluations, especially by Paul Parker. Lot 5 is more feasible. I recommend combining Lots 3 and 4 into a single lot with access traversing the slope to the house site on Lot 3.
2. The traffic study was prepared by Steve Pernaw, a well-respected traffic consultant. The most important aspect is the 60% break for traffic southbound on Baker Hill Road, which is not in top condition heading down into Sutton Mills. I think this is reasonable estimate of traffic into Sutton, but the question is what does that mean for the narrow, unpaved sections of the upper stretch of Baker Hill Road. I recommend Paul P. review that, and the Board make a site walk at the time a formal applications is submitted.
3. This development abuts the town of Newbury. I suggest asking the developer if they have had conversations/prelim consultations with the Newbury PB and road agent. At some point, our board would need to consider if this subdivision should be declared of regional significance per the RSA to give Newbury more input”.
Wright stated that Sutton has worked with Newbury in the past where there was mutual assistance and wanted this on record. Sweeney realized that there where some changeling lots of the proposed lot designs. Their client would like to get six lots out of the subdivision, moving the lot lines could be a possibility. He asked if they could copy correspondence to Newbury or specifically ask Newbury to be in attendance in Sutton. Wright read a letter from the Town of Newbury dated November 13, 2008 stating “thank you for the application and attending information for Mr. Falvey’s proposed subdivision. The Newbury Planning Board reviewed that information at its regularly scheduled meeting on October 21, 2008. It was a sense of the Board that the subdivision will not significantly
impact Baker Hill Road in Newbury”. Wright stated that from this letter there seems to be no issue with the Town of Newbury and does not appear to be of regional impact. So this specific issue has been resolved. Thomas stated there were still some issues with a couple lots with steep slopes that could be resolved with maybe a common driveway for two of the lots if they are still thinking of doing six lots instead of combining two lots into one. Wells thought that it would be worth their while to chat with the owner about non-standard lots. He also thought there were ways to be creative following the contours to make the lots more workable as he had submitted a plan to the Board before he was on the Board and one of things they did was actually pick a house location based on where they thought it was most marketable and showed how the driveway got there so they were proving their case. This showed that you could actually get a driveway up
there and you can show how the house would work better if it were parallel to the contours. Wells demonstrated this on the plans before the Board. Sweeney stated that they had identified this problem and again they are looking for the Board’s input and any suggestions to get this 6 lot subdivision to work. They are trying to be conforming to the rules and regulations and are looking for input due to the parcels and their unique and physical characteristic that could be solved with less then conforming straight lines on paper and more designs specific to the lot/land that exists there now. Burns stated that he thought lot 4 was not conforming. If they could come back with some type of driveway design that represents and proves their challenge, would this be acceptable to the Board. Wells stated that as he can only speak for himself, as he is a land planner, it would behoove the client to be as creative as they can be while meeting the rules. There is nothing in the rules that
say that the side lines have to be perpendicular to the street. They do not want lots that look like a “plate of spaghetti” but there is no reason why there cannot be angles as long as they are reasonable and solve good practical problems. He would, as one member of the Board, vote for that kind of thing but he suggested that they come back, unless you are “chomping at the bit to get an approval” before you’ve engineered everything to try it one more time. Sweeney stated that it is their desire, as the owner is getting itchy, to move forward and what they are trying to do is come back to the Board hopefully next month with some type of resolution for the concerns and to rectify some of the things that the Board desires. Blakeman asked about the 300’ minimum site distance requirement for driveways and this needs to be delineated on the plans. The driveway locations do need that 300’. It is 10 times the
speed limit for a minimum of 300’. Blakeman also stated that a water source would be the chief concern with Fire Chief Chris Rowe. Also a concern is the driveway access to potential sites. As the fire department is taking a much more proactive interest in the subdivision plans now and they do need to give their “blessing” to the plans as well. Blakeman also has a very strong concern regarding the drainage and he wants to see a drainage study done for the final application to see if this shows there is going to be no impact on the road by the increased drainage from the house sites. Showing they are not going to be increasing the drainage onto the road is a key feature. He also felt that Paul Parker would be concerned with as well as there is not a whole lot of infrastructure along the road there. Blakeman feels that there needs to be some discussion of Baker Hill Road itself and the impact of daily trips. He believes
the Board has a strong history of looking at the existing roads and trying to pinpoint the trouble areas and whether there is going to be any further impact if there is an area of the road which is too narrow or has other faults i.e. site distance, width, etc. The Board is not asking applicants to fix the grade on any of the existing roads but this is a discussion the Board has to have and he feels that they need to have site walk to take a look at things including the road itself. Wright wanted to review the area of public safety as well. He questioned the driveways and how they are designed. He suggested that when they are accessing the driveways they are as perpendicular to the road as much as possible for sight. The other comment he has is that there be sufficient water due to safety and fire. Thomas asked if there were any comments. Chris Rowe, Fire Chief stated that he would like to see a 30,000 gallon cistern. The NFPA
requirement is 1500’ from the structure. He would like to come to a happy medium. There would also need to be adequate parking for the emergency vehicles. Sweeney asked if there were any plans on file for a cistern. Rowe stated that he would be happy to provide cistern designs to him. Rowe also questioned the maintenance of the cistern tank. He thought that there has to be an association to maintain the cistern. He also thought that all the lot owners would be responsible to maintain the cistern. He suggested that if the cistern was not an option then they could put sprinkler systems in each home. He is concerned that the terrain could become an issue down the road. There is one particular driveway that could become an issue and the Chief does not feel comfortable with it. Burns asked if Parker could approve the driveway entrances on the plans. Blakeman wanted to make sure the 300’ sight distance is
corrected. He will double check with Parker on the driveways. Abutter, Amy Highstrom asked about existing deed restrictions on existing properties. The Board informed her that they cannot impose deed restrictions on these lots. If they meet the subdivision requirements that’s all they can do. Burns stated that the applicant could volunteer to put any type of restrictions that they wanted to and the Board could consider them but the Board cannot require them to put restrictions on. Highstrom also asked about the precedent to upgrade Baker Hill Road. She also asked about water sheds. They have 3 culverts at the front of her home. Water can be a very big issue and she is wants to know what impact this subdivision will have. Vicki Anderson, Abutter added in that there are three culverts that come from the property in question. Highstrom also asked who would request from NH Fish & Game a study of the possibility
of breeding mountain lions on this property. They have been seen at least 3 times not only adults but kittens as well. Blakeman stated that he had heard that the mountain lions had been seen as well. He also stated that in our regulations there is a section on Wildlife Study. He also thought that he heard that once the mountain lion has a confirmed sighting the NH Fish & Game has to start managing for this and they were not sure if they wanted to take this step or not as this is a big undertaking for them. Thomas asked if the Planning Board could require this. Burns stated that in a past case they required a turtle study. Blakeman stated that this was in the subdivision regulations as part of the Environmental Impact Study. This was done for the Medowview project. Wright asked to respond to the road question. He stated that the Town as structural standards and they are based on each house having 20 trips per day, 10
times in and 10 times out. The Board does not want to base it on 50-200 where there are certain road standards. Then over 200 there are other standards. The question of where, after the study, where is it now and what might it be increased to. The Board would be guided by the “minimum geometric structural standards of road construction”. Burns thought that this was for new roads being built not for existing roads. He thought that existing roads just had to be safe and adequate. Wright stated that there are subdivision guidelines that have to be followed. Burns stated he thought that the applicant had to bring the road up to a safe and adequate standard. Blakeman stated that the prior case of Birch Hill was a perfect example. This was a prior subdivision of last year and the road was an old town road similar to Baker Hill Road but not as long but there were issues along the whole road as it did not meet Town
standards and the Board asked the developer as a compromise to fix four locations that the Board thought needed some work to make the road safe and adequate which the applicant would pay for rather than going to a whole road and saying that the applicant was responsible for this percentage the Board pinpointed a few spots to upgrade the road, not the whole road just a few spots, and they would look at this application in a similar way. Burns stated that that is why they should go out and take a look as Sundquist stated in his letter. Blakeman said there are certainly some areas in the road that are horrific in the spring time just getting up and down it with one car but there is no-one who would ask the applicant to upgrade the whole road but it is something the Board will look at very closely. Sweeney stated that most of the control exists on the frontage. They do not have an issue until they get off site and it is not wide enough to do all the things they
desire. Money is an option they can add some to it. They will bring this back to the client and the ideas of the Board’s offsite improvement dollar per lot or anything to that effect at this point in time. Burns felt that the Board would have a better idea once the site visit is done. Sweeney asked if there should be a site visit with the Road Agent based upon Dan’s letter prior to the next visit on the 12th of May. Thomas felt that this would be a good idea. Wright asked if the site walk could be done before the application was accepted as complete or after. Blakeman told him that it could be done before as he does this all the time with other towns. Sweeney felt that if there were going to be significant upgrades to large sections of the road, his client is going to look at this subdivision differently and if the Board is asking him to spend money to straighten out the curve this could cut in to other things
that he may want to do. Sweeney felt this was prudent and with the Board’s blessing he would like to get in touch with Paul Parker and identify some of the issues that are specifically related to off site improvements. He felt the driveway locations and everything there that has been requested so far is reasonable and he does not think that there are any real big issues that tweaking or further design could be brought back to the Board. This would include some better engineering, sound driveway locations and also some off site improvements with some suggestions based upon printouts from the traffic impact study and good input from Paul Parker. Burns also stated that drainage would need to be included on the new plans. Anderson stated that the KRSD does not have a bus that goes up Baker Hill Road due to its safety issue. She also reiterated that the drainage of water runoff would be an issue and asked if anyone could be a part of the site
walk. Blakeman informed her that they were public meetings but no input could be taken at that time. They can observe but not offer any comment or input from the public. She asked that on the site walk they look at the drainage issue. Blakeman stated that that is one of things they are asking for is the drainage study to look at the pre and post development of the subdivision. George Tulorian, Abutter spoke with regards to his family owning the adjoining land. He asked for a copy of the plan so he could see the relationship between the Tulorian family property and the proposed subdivision. He also stated that he believed that the Planning Board has the authority to make sure that nobody turns any lot into a salvage yard or something like that which would conflict with the zoning laws. He asked if the Town has a limit on unregistered automobiles per lot. Burns told him that yes the Town does. He also thought that the
problem with the school bus not being able to go up Baker Hill Road is the Town’s responsibility as people up there are paying taxes and they are entitled to the services that the rest of the town gets. He felt they were being discriminated against and this was a town problem. He wanted to know when the last time the town upgraded Baker Hill Road. Blakeman stated that this would be a question for Paul Parker. He did know that in 1988-1989 there was a $500,000 road bond and that a significant amount of road work was done on Baker Hill Road. He was not sure other than maintenance what has been done beyond that. Blakeman also stated that as far as the bus going up there, there is a fine line between what the bus company says they can do and will do and he is not sure of the specifics behind the reason for that. Tulorian stated that if the Town adheres to the guidelines the bus company would not have a problem. Burns stated that if
there is a safety concern currently this should be brought before the Selectmen. The road is going to be looked at on the site walk as it pertains to the submitted subdivision proposal. If there are safety concerns now, then they should be brought before the Selectmen right away. Tulorian stated that the people who buy the lots deserve to have a school bus pick up their kids not have to drive them to school. Blakeman stated that as far as the wildlife in the subdivision regulations under additional requirements, there is an item that says “an environmental impact study to include but necessarily be limited to information pertaining to adverse impacts on traffic, scenic resources, solid waste, flood plains, wetlands, public safety, cultural resources, wildlife habitat, prime agricultural land, growth and character of the community and neighborhood”. He threw this out to the Board. Sweeney stated that a normal course of Towns is to do a
National Heritage Inventory Identification that there is rare and endangered species that have been identified through the state. And what they usually do is come back to the Board and say that here is the documentation to say that there is an issue or no there is not an issue. Cougar sightings in New Hampshire are not identified as there is no documentation on them. If the Board wants something more substantial than that they can provide that for the study but the State Fish & Game Department keeps an inventory of all identified and documented endangered species that need to have consideration on. If we send them a letter that triggers whether there is something there or whether there isn’t something there it is his recommendation that they provide that and go from the basis that there is something that has been identified which would lead to another step if the Board desires. Blakeman understands where he is coming from but this is limited
to what people have called in and proven to Fish & Game that might be out there. But the Board is looking at possibly at a study by a wildlife biologist to look at that specifically among other things. He does not know what they would look for but he is sure there is habitat or scat that may be there. This is something that the Board really needs to think about. When the Meadowview subdivision went through the Board required the property owner to do the wildlife study. The developer hired a scientist due to a question about endangered turtles being seen on the property. Blakeman stated that it was certainly within the Boards power to request this done. Burns stated that it is pretty powerful if the abutters have seen 3 cougars. Thomas said it was pretty powerful that different people have seen them. Highstrom stated that the highest concentration of the sightings is on Baker Hill Road. Sweeney stated that he had been
working with the New Hampshire Fish & Game for 9 years and he is stating that cougar sightings are not documented at this point time and they are not substantiated. He does not want to snow anyone but NH does not have any great populations of cougars. They may pass and re-pass through this area and they will continue to do so whether this subdivision gets developed or not. But if the Board so desires to have a wildlife biologist by all means they will. He does believe that there are cougars in NH and they do pass and re-pass but from a biological standpoint as he has worked for the NH Fish & Game Department for 9 years he told the Board that there was little to no documentation. There may be sightings, there may be pictures, there is little to no scat, there is very limited documentation. Burns asked if the wildlife biologist was to come across some “poop” out there would he report it. Sweeney said yes he would. If
this is what the Board wants this is what they will do. Blakeman stated that this was all they were asking for. But this would be a Board decision. Thomas asked what the sense of the Board was on this issue. She asked if the members thought it was a good idea to require a wildlife scientist to go out and take a look. Wells asked what the Board will do with the report if scat is found and scratch marks are found and while out there the biologist saw a cougar. Burns stated that this would be proof of habitat. Blakeman stated that a good report would have a recommendation of what could be done and they would usually not come back and say only put one lot up there which would be best for the wildlife but it is not something that they are going to require. But, they may have a suggestion which could be that there is nothing that they can do, it might be that they have a habitat up on the top and it is pretty clear it is following the ridge
or whatever and it might be a good idea to try and have a corridor or whatever or leave it undeveloped. This might be the type of thing that could come out of this type of report. It certainly would not be I came across its den and I want a 1000’ radius, no cut, no walk zone, etc. He is not against the development per see, but he thinks that it is not a bad idea to have this information. Tulorian stated that he knew for a fact that the Audubon Society owns quite a bit of land in the back and they have trails all over the place and they have people walking all over the place. If there were that many cougars up there would they allow this? Thomas asked the question if they do find clear evidence of these animals, does this trigger any federal endangered wildlife act. Burns stated that he thought they could cross that bridge if and when it happens. He felt that the Boards job is to get a sense of the Board if they are going to
require this report. Whatever the reports says, then it will be the first in NH if they saw one and then the Board will have to cross a whole new bridge then. He thinks that the point tonight is to say whether the Board wants the study or they want a one page report. What is the Board going to require. Wells asked if it was not unreasonable for the applicant to do this and it sounds as if though it is by the applicant’s representative that is not an unreasonable request, obviously the applicant does not want to have request after request and make it so time consuming and so expensive that it becomes absurd, but there seems to be reasonable evidence, the applicants have indicated to the Board that they would be willing to do a reasonable study then yes he thinks that the Board does have an obligation to protect the wildlife. If there is a way that something can clear this up that may not satisfy abutters, the Board should at least try.
Blakeman asked if anyone new where the Chairman would fall on this subject and Burns stated that he thought he would stand with the Board. Sweeney stated that they did not have a problem with this as they have worked with an environmentalist before and they would be willing to identify if there are cougars or not. They are willing to work with the broad based 21.5 acres and what the habitat has and will give the Board some type of analogy and if something comes up they will bring it to the Board’s attention. Thomas asked if the Board was ready to schedule a site walk. The walk was scheduled for April 25, 2009 at 9:00 a.m. Wells thought it would be good to do it after a rainy day but unfortunately there are no clouds in sight. All those attending the site walk will meet at Lot #2. Wright will not be available for this site walk. Things that the Board is looking for at the time of the final application after the site walk
are:
Low Impact House Drainage
Road Drainage
Driveways Roughed out on Plans
Environmental/Wildlife Study
Site Distance
Driveway Locations
Fire Safety – Cistern/Sprinklers
Lot #4 Adjustments
The Board voted to continue this hearing until May 12, 2009 at or before 7:00 p.m. Abutters will be notified of the final hearing.
Wright made a motion to postpone the correspondence and previous hearing minutes to the May 12, 2009 hearing. Burns seconded. Unanimous.
Hearing adjourned at 9:30 p.m.
Respectfully submitted,
Linda D. Ford
Land Use Coordinator
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