February 2, 2004


The Chairman, Paddy Culbert called the meeting to order at 7:30 pm.


The Secretary, Bill Scanzani, called the roll:



Paddy Culbert, Bill Scanzani, Peter McNamara, Henry DeLuca, Gael Ouellette, Robin Bousa, Selectmen Representative Hal Lynde, Alternate Bob Yarmo, Planning Director Will D’Andrea




Alternate Raymond Brunelle




Map 4 Lot 9-146 – Mesiti Development – Arlene Drive – Request for Bond Reduction – TFMoran recommends a reduction from $140,000 to $22,100


Mr. Scanzani read aloud a letter submitted to the Planning Department by a resident of Arlene Drive who was not able to attend the meeting.  The letter listed existing problems with the road.  The abutter requested that the Board strongly reconsider the bond reduction and hold the full bond until completion of Arlene Drive.  Mr. Scanzani reviewed the worksheets submitted by TFMoran (former Town Engineer).  He said there was nothing in TFMoran’s worksheet that stated the wear coat of the road had not been completed, which he believed should be clarified.  Mr. Scanzani said there were several memos dating back to March 22, 2001 that listed the items needing completion. 


Mr. D’Andrea said that he had forwarded the backup correspondence to TFMoran in December, 2003.  He anticipated that a representative would be present later in the meeting.  Mr. Culbert said that the Board would set aside the discussion until TFMoran’s representative was present later in the meeting. 


Ms. Jean Lucas, resident of Arlene Drive assured the Board that no work had been done to the road since 2001. 


Mr. Lynde asked about the bond status.  Mr. D’Andrea said the Town was in control of the bond.  Mr. Culbert said if there was any doubt about the road after the Board discussed the status with the engineering company, the Board would not reduce the bond. 


* see below for further action.


Map 6 Lot 4-140 – K.L.N. Construction Inc. – Old Orchard Estates – Request for Bond Reductions of Phases I, II & III – TFMoran recommends for Phase I a reduction from $$75,900 to $25,300; Phase II a reduction from $230,000 to $89,000; and Phase III a reduction from $147,101 to $73,275.18


Phase I (Jonathan Road) – Mr. Scanzani said the original bond amount was $253,000; all work was completed except for the final wear coat over-wintering.  There was a brief discussion regarding when the bond was submitted and if it fell under the 30% contingency, or the old regulation of 10%.  Mr. Scanzani reviewed TFMoran’s calculations, and noted that phase I was at 10%; phase II & III were calculated at 10% plus 30% contingency. 



(Scanzani/DeLuca) To recommend a bond reduction for Phase I, per TFMoran’s recommendation letter and worksheet, from $75,900 to $25,300.




(7-0-0) The motion carries. 


Phase II (Gala Court, Longview Circle, Rome Avenue) – Mr. Scanzani noted the work still to be completed per TFMoran’s worksheet. 



(Scanzani/DeLuca) To recommend a bond reduction for Phase II, per TFMoran’s recommendation letter and worksheet, from $230,000 to $89,000.




(7-0-0) The motion carries. 


Phase III (Empire Road) - Mr. Scanzani reviewed TFMoran’s recommendation.



(Scanzani/DeLuca) To recommend a bond reduction for Phase III, per TFMoran’s recommendation letter and worksheet, from $147,101 to $73,275.18.




(7-0-0) The motion carries. 


Map 4 Lot 9-146 – Mesiti Development – Arlene Drive – Request for Bond Reduction - Mr. Culbert announced that the Board would not take action on the request due to the absence of the engineer.  He said that Mr. D’Andrea would work further on the situation. 


Map 15 Lot 9-40-3 – St.Onge – Request for Extension of an approved Subdivision in accordance with Section 13.01 of the Town of Pelham Subdivision Regulations


Mr. Scanzani said that the property owner had submitted a letter requesting an extension which had been approved by the Planning Board in February, 2003.  The owner had recently hired a contractor to clear the land.  He recommended that the Board grant an extension.  Ms. Cathy St. Onge requested that the Board consider granting an extension for at least six (6) months.  Mr. Bob Chatel (applicant’s fiancé) discussed the items that needed completion which had been held up due to financial hardship. 


It was noted that the regulations allowed for a one (1) year extension.  A motion was made to grant a six (6) month extension.  Mr. Culbert said if the applicant could not begin work in six (6) months, they could come back to the Board and request an additional six (6) month extension.



(Scanzani/DeLuca) To grant the applicant a six (6) month extension.




(7-0-0) The motion carries. 




Map 21 Lot 3-107 – Robert & Florine Hirsch – Mammoth Road – Proposed 2-Lot Subdivision for consideration


Mr. Scanzani read the list of abutters aloud. There were no persons present who did not have their name read, or who had a problem with notification. The file did not contain any written correspondence from abutters. 


Mr. Mike Grainger, Grainger Engineering (Hudson, NH) presented the plan to the Board.  He explained that the applicant was seeking to subdivide two and a half (2.5) acres from an existing parcel containing forty-five (45) acres. 


Mr. Culbert asked if the created lot would meet site distance requirements.  Mr. Grainger answered yes.  He said the lot contained existing structures.  Mr. Scanzani confirmed with Mr. Grainger that the setback requirements were met.  He said the state approved plan clearly showed the location of the septic and the well; the plan needing the Board’s approval should include the same information.  Mr. Grainger said that the plan had been sent to the state for approval prior to Board review.  He said that the notes would also be added to the Board’s copy of the plan.  Mr. Scanzani informed that the applicant had already received DES approval. 


There was no public input.



(Scanzani/Lynde) To accept the plan for consideration.




(7-0-0) The motion carries. 


Mr. Scanzani said no waivers had been requested.



(Scanzani/Lynde) To approve the two (2) lot subdivision, conditioned upon the applicant including the existing location of the septic, well and 4K area on the plan being approved by the Board.




(7-0-0) The motion carries. 


Mr. Scanzani asked that the NHDES approval number also be included on the plan being approved by the Board.  Mr. Grainger will include the NHDES number on the plan. 


Map 24 Lot 12-224 – Anastasia Wickwire – 43 Ledge Road – Proposed 2-Lot Subdivision for consideration


Mr. Scanzani read the list of abutters aloud. There were no persons present who did not have their name read, or who had a problem with notification. The file did not contain any written correspondence from abutters. 


Mr. Matt Hamor, Meisner Brem Corporation presented the plan to the Board.  He reviewed the plan and showed that there were two small wetland areas.  He said they were proposing to subdivide the existing lot into two (2) lots for single-family dwellings.  He showed the driveway location.  He also showed the location of the proposed septic system.  He said it was recognized during the time test pits were being done that the existing dwelling would need to update their septic system.  He showed the location where the reserve area and septic system would be located.  Mr. Hamor said that a waiver would be requested for the seventy-five foot (75’) protective radius of the wells.  He showed that the existing well radius extended past the current lot line.  Once again he showed the existing driveway location and noted that it was located between the two (2) wetlands.  There was an additional proposal to have a small access easement due to the existing driveway being located within eighteen feet (18’) of the proposed lot’s frontage. 


Mr. Scanzani had an issue with the proposed well radiuses being located on abutting lots.  He also took issue with the driveway easement being contained on the proposed lot.  He asked if the test pit data met the fifty foot (50’) separation requirements.  Mr. Hamor said they had difficulty meeting the requirement; additional test pits had been done and the tests that passed were then noted on the plan.  It was Mr. Scanzani’s opinion that things should not be forced onto lots.  He then asked for explanation of the slope easement.  Mr. Hamor said that the slope easement was added to accommodate the side slope requirement of 3-1 for the septic design.  Mr. Scanzani asked if, on the existing lot, the septic system would be located above the well.  Mr. Hamor explained that due to the contour of the land, the well was slightly upgrade and tapped into a different source; the proposed septic would not contribute to the water for the well.  Mr. Scanzani had a problem with the design concept of the subdivision which appeared to be flawed due to the need for the slope easement, driveway easement, well radius onto abutting lots, septic abutting lot line and the test pit data.  Mr. Culbert took no issue with the driveway easement, but was not in favor of the well radius and the test pit information.  He said it appeared that everything was being forced onto the lot.  Mr. Hamor said in an effort not to encroach the wetlands, the driveway easement had been added. 


There was no public input.



(Scanzani/McNamara) To accept the plan for consideration.




(7-0-0) The motion carries. 


The applicant requested a continuance to work out some of the issues brought up by the Board.  The Board granted a continuance. 


Mr. Scanzani said that waiver requests had not been received for the slope easement, driveway easement, test pits, or well radius on abutting lots.  There was a consensus of the Board to request that the applicant revise the plan based on the points raised by Mr. Scanzani.  Mr. Hamor said he would work with the Town’s sub-consultant for approval of the septic design. 


The plan was date specified to the March 1, 2004 meeting. 




Map 30 Lot 11-93 – Cormier & Saurman Building, LLC – Dutton Road – Proposed Elderly Complex for Site Plan Review and Seeking Special Permit for Wetland Crossing for continued consideration


Ms. Ouellette and Mr. Lynde stepped down.  Mr. Culbert asked Mr. Yarmo if he would also be stepping down.  Mr. Yarmo said he would remain on the Board.  He said he would remain impartial during the Planning Board meeting, just as he had done during the Conservation Commission meetings.   


It was Mr. Scanzani’s assumption that regardless of the Board’s decision the plan would go to court.  In an effort to make the case simple, Mr. Scanzani referenced and read aloud RSA 673:14, II which outlined the disqualification of a member who may appear to have a conflict of interest.  He said a request had been received by one of the attorneys regarding the matter of Mr. Yarmo (a Planning Board alternate, who is also the Conservation Chairman) sitting on the Board during the proceedings.  Mr. Scanzani asked the sitting members of the Board to vote thereby requesting Mr. Yarmo to step down.  He then made a motion to request Mr. Yarmo to step down from the Board.  Ms. Bousa said the issue arose at a previous meeting when Mr. Yarmo (being an alternate) would have been a voting member in the absence of a regular member.  She wanted to know if there would be a difference now, since Mr. Yarmo would not be voting, but simply sitting on the Board during the discussion.  She noted if Mr. Yarmo stepped down, he would still be allowed to speak as a member of the public.  There was a brief discussion and there was a question if Mr. Yarmo would be appointed as a voting member, since two regular members of the Board had stepped down.  Mr. Culbert said that the Board had a quorum (five voting members) and didn’t believe that an alternate had to be appointed.  In Mr. Scanzani’s opinion, it may prejudice the court’s decision if Mr. Yarmo sat on the Board during the discussion.  Mr. DeLuca didn’t feel it was fair to ask Mr. Yarmo to step down, since Mr. Yarmo had to remain impartial.  He was not in favor of Mr. Yarmo stepping down.  Mr. McNamara believed that there were specific facts with this case that lead to the attorney requesting Mr. Yarmo to step down.  He said no one was stating that Mr. Yarmo could not remain impartial, but rather if there was an ‘appearance’ that he could not be objective. 


Mr. Scanzani read aloud a letter submitted by Attorney Paul DeCarolis, representing the applicant, dated December 31, 2003 that had been submitted to the Planning Board Chairman.  The letter requested that Mr. Yarmo recuse himself from the above referenced matter based upon Mr. Yarmo being the Chairman of the Conservation Commission, and the fact that the Little Island Pond Watershed Association was a vocal and primary opponent to the proposed project.  The Association’s webpage discussed their concern for preserving Little Island Pond and asked that members join them in a partnership with neighbors and the Conservation Commission.  A concern has been raised that the Chairman of the Conservation Commission (Mr. Yarmo) could not be neutral and detached with respect to decision making for this project per RSA 673:14.  Mr. Scanzani reiterated that there was not an issue of actual conflict, but if the case went to court, it was his opinion that the case would be further convoluted. 


Town Council, Diane Gorrow believed the disqualification statute was regarding the participation of a voting member in the meeting.  She didn’t feel that the Board needed to go through the steps of requesting Mr. Yarmo to step down, since he would not be voting. 


The Board moved forward with Town Counsel’s opinion.  The decision was made that Mr. Yarmo would remain seated as a non-voting alternate Board member.


Mr. Yarmo noted that the website referenced in the December 31, 2003 letter was not authorized by the Little Island Pond Watershed Association.  He also said as Chairman of the Conservation Commission (or as a member), there was an obligation to meet with abutters who wanted to preserve land.  He reiterated that he was impartial on the Conservation Commission, and would be impartial as a Planning Board member. 


Attorney Paul DeCarolis, representing the applicant, provided a brief re-cap of the plan being presented and what had been previously been submitted and discussed by the Board.  He said the proposal was for elderly housing which was authorized in accordance with the Pelham Elderly Housing Ordinance.  He said the applicant weighed the concerns for the pond, the rural/residential character of the neighborhood and had agreed to restrict a portion of the property to future development to keep it in its natural state.  He said the Wetlands Conservation District ordinance allowed utility and driveway crossings over wetlands, if necessary, for the productive use of the property.  Attorney DeCarolis said the applicant was willing to restrict the use of the property to fifteen (15) units, and had tried to address every concern that the Town Engineer and consultants had raised.  He said that the ordinance required open space, which the applicant had provided.  He said another concern was the preservation of Little Island Pond and through the Watershed Protection Act, the state statute called for a fifty foot (50’) setback; the Town regulations require a one hundred foot (100’) setback; it was noted that any developable area of the site was approximately nine hundred-fifty feet (950’) from the pond.  Attorney DeCarolis also noted that the site, which was over nine (9) acres would contain fifteen (15) units.  He didn’t feel that the use was an overburden to the lot and pointed out even with the wetlands, the site could contain six (6), or seven (7) homes, which could accommodate twenty (20) to twenty-four (24) bedrooms. 


Attorney DeCarolis reiterated that all the criteria for elderly housing had been met.  He said that access to Smith Road had been brought up by the Fire Chief, not the applicant, and pointed out that it was not necessary to meet frontage requirements.  The proposal for Smith Road was to provide a secondary emergency access only, as requested by the Town; the access would be gated.  He said the abutters had argued that Smith Road had been acquired by them through adverse possession.  He said the there were very specific actions/procedures that were required per statute to be filed with Superior Court for adverse possession which had not been done in this case.  Attorney DeCarolis said there were several opinions in the file, dating back to 1983 that state either 1) the property owner of Map 30 Lot 11-93 has as much right to Smith Road as the Trust, or 2) the property owner owned to the center line along with other abutters.  He said regardless of the ownership, the proposal would be for emergency access as outlined in RSA 154:7 (Emergency Vehicles, Fire Department et al). 


Attorney DeCarolis informed that the total wetland impact was seven hundred fifty square feet (750SF).  He believed that the engineers had gone to great lengths to address all of the concerns of the Town’s consultants, and the plans had been revised accordingly. 


Mr. Scanzani asked if the applicant would be willing to donate the back parcel to the Town to assure the abutting residents it would not be further developed.  Attorney DeCarolis said that the applicant wanted to keep the area in its natural state.  He said part of the ordinance required viable open space for the residents, therefore, if something were drafted for the land to be dedicated to the Town, he would like language that tied-in the usage of such land by the residents of the proposed project.  He showed an area where access could be obtained through a portion of the land.  Mr. Yarmo noted that the open space area was the location of the alternate leach field.  Attorney DeCarolis proposed if title was taken by the Town to the land, there would be an easement area reserved for the alternate septic system location. 


Mr. Scanzani believed that the applicant met all of the regulations.  He said it made sense to have the portion of land deeded to the Town for open space use (i.e. walking trails).  It was noted that the parcel would not be landlocked because the Town owned land adjacent to the proposed open space area. 


Mr. Peter Zohdi, Herbert Associates said the applicant would like the open space portion of the parcel for a future reserve septic system in order to meet the requirements of Article K.  He noted in many instances septic systems were replaced in the same area they were installed (such as the Pelham Plaza). 


Attorney Gorrow believed the only legal issue would be ‘adverse possession’, but didn’t find anything in her materials that would deny the applicant the right to use Smith Road for an emergency gated access as proposed. 


Mr. McNamara reviewed notes from the Technical Review Committee meeting of May 12, 2003 in which they discussed the access issue.  At that time, Fire Chief David Fisher requested and/or concurred that the first choice would be a connection to Smith Road; at a minimum, if it were determined by Town Counsel that the connection were not allowed, a cul-de-sac would have to be designed to allow a turning radius for emergency vehicles.  Mr. McNamara wanted to know if the request would still hold.  Mr. Culbert believed for emergency access, emergency vehicles could not be prevented from using Smith Road.  Attorney Gorrow was not familiar with the statute, but went on to discuss there were many elements of adverse possession that would need to be proven. 


Mr. DeLuca confirmed that the disturbance to the wetland was seven hundred fifty square feet (750SF).  Mr. Zohdi answered yes.  Mr. Yarmo said square footage was the impact to the fill in the wetland.  He said per the Louis-Berger (Town wetland consultant) report the actual impact to the wetland has not been addressed.  He went on to read a portion of the report aloud. 


Mr. Craig Wood of Louis-Berger said that they had reviewed the impact statement previously prepared by Gove Environmental Services for the subdivision.  He said there were elements of the report that were very well done.  He believed that the report was done before some of the final details were in place, which was the reason that some of Louis-Berger’s comments were related to the timing of the report.  Mr. Wood said that they ultimately agreed with many of the conclusions that the report made.  He said one of the significant habitat features of the site was the potential for seven vernal pools, but due to seasonal constraints, it was not known if they would actually support vernal pool dependant wildlife.  He said the encroachment into the surrounding wetlands and the fragmentation of the development would have a detrimental impact on the viability of the wetlands to provide wildlife habitat function in the future.  He believed that indirect impacts of potential water withdrawal should be reviewed since it was not thoroughly discussed in the report.  He said they did not review the site during the growing season, the comments were based on some amount of prediction.  He said it would have been nice if the Gove Environmental report provided more detail on the nature of the impacts. 


Mr. Scanzani said that Louis-Berger had not made any specific recommendations for the site, other than to review certain points closer.  He said all development had some sort of environmental impact.  He asked if there was something, based on the Gove Environmental report to which Louis-Berger could make a specific recommendation for mitigation.  Mr. Wood said it would be helpful if there was some connection between the drainage report and the ‘loading analysis’ of water quality.  He said there were not enough facts to make an educated decision that might be made if there was more information available.  Setting the wildlife issue aside, Mr. Wood noted there was some encroachment into a buffer zone, which would have performed a great function once the development was in place.  He said there should be a closer look at the water flow, volume, and potential contaminates that the water may contain due to the fairly steep slope.


Mr. Culbert wanted to know if he heard correctly that there was no balance between the environment and the development.  Mr. Wood suggested that there was the appearance for potential sensitive wetlands on the property.  It was Louis-Berger’s opinion that the Environmental Impact Assessment should have addressed issues in further detail.  He said the field work to assess vernal pools could not be done until March.  He said the water quality issues were more of an analytical assessment and Louis-Berger was not privy to the hydrological backup, which is generally included as part of the engineering backup. 


Mr. McNamara reviewed the Gove Environmental report (page 65) and commented that there was a number of impact mitigation suggestions listed.  He wanted to know if the recommendations for mitigation changes would change Louis-Berger’s opinion.  Mr. Wood said there was a suggestion for a one-hundred foot (100’) buffer.  Mr. Scanzani informed that the Pelham voters turned the buffer down.  Mr. Wood felt that there were some issues that warranted further consideration (i.e. potential vernal pools). 


Mr. Scanzani asked if grassy areas would help limit fertilization etc.  Mr. Wood said no-cut zones would be a better alternative, since grass was difficult to enforce.  He then noted that there were cellar holes found on Dutton Road that someone may want to research in the event they were significant in the early development of the Town. 




Attorney Michael Donovan, representing the Little Island Pond Watershed Association, Trustees of the Smith Trust and the Trustees of the Little Island Pond Road Fund asked if there were rules of procedure that establish the Board to appoint an alternate to vote only when there is not a quorum.  Mr. Culbert said as far as he knew, the appointment of an alternate was the Chairman’s call.  Attorney Donovan objected to the procedure and believed that the statues require if alternates were present they should be seated up to the full seven (7) members of the Board. 


Attorney Donovan said he would discuss the wetlands issue (special permit), road issue, adverse possession and some of the zoning issues.  He began by discussing the special permit.  Through the discussion, Attorney Donovan believed that the Town’s consultant said that the development, as proposed, should not be approved without additional information and investigation on the impacts to the wetlands.  He said one alternative was the reduction of units (per the Louis-Berger/Craig Wood letter dated December 30, 2003) and without that reduction certain protections to the buffers and cut zones would not be able to be provided.  He believed that the Board should deny the plan until further investigation.  Attorney Donovan said that the special use permit required favorable written comment of the Conservation Commission, which the Board did not have at this time.  He believed that the Board’s legal counsel was incorrect in their interpretation of the ordinance and went on to say, it was his belief that the proposed development was not essential to the productive use of the land.  He suggested that the Board ask the applicant what the purchase price was for the parcel, so that the Board could make its own judgment in terms of its value, and to how many units were necessary to have productive use.  He believed that the fifteen (15) units and the impact to the wetlands could be reduced, and still allow for productive use.  He ended by saying the Board should deny the special use permit since he believed there was no basis for its approval. 


With regard to the zoning issues, Attorney Donovan asked what other approved developments the Board was using as past practice examples when making  the decision to not apply the terms of the zoning ordinance (e.g. three [3] acres per dwelling unit and setbacks). 


Attorney Donovan then addressed the issue of adverse possession (documentation of which he previously submitted to the Board).  Mr. Scanzani said the Board agreed that Smith Road was private, and was not a public road.  Attorney Donovan believed that Town Counsel didn’t have complete information when advising the Board about the status of Smith Road.  He felt the additional information would make a difference.  He said the residents paid taxes on the road, maintained the road and closed the road enough to establish hostility.  He reviewed some of the information in connection with a court case involving the status of Smith Road.  He formally requested that the Board attach a condition of approval relative to the evidence of ownership of Smith Road by the Trustees of Smith Trust.  Mr. Culbert asked if the information presented would prevent a fire truck, ambulance, or police vehicle from utilizing the road.  Attorney Donovan believed that the statute provided the Fire Chief authority to use to anyone’s property to put out a fire.  He said the difference in this case was that the parcel was too long from a public road; in the event that the access road was blocked residents may then use the proposed access onto Smith Road as a secondary access, not a means for emergency access for fire trucks.  Mr. Culbert said that the Board had not requested a secondary access, and noted that the access was exclusively for emergency vehicles.  Attorney Donovan said it didn’t appear that a survey had been done for the precise location of the emergency access road and noted there may be problems with the turning movements of vehicles.  He reiterated that the Board should deny the plan based on the wetlands impact and send the plan back to be reworked to have fewer units. 


Mr. McNamara asked when Attorney Donovan believed the adverse possession period began and ended.  Attorney Donovan said in all likelihood it probably started in 1950 and ended in 1970.  Mr. McNamara asked how many abutters there were to Smith Road.  Attorney Donovan said there appeared to be three including the applicant.  Mr. McNamara wanted to know the history of use for access to Smith Road.  Attorney Donovan said there hadn’t been any use by an abutting parcel owner because the abutting parcels were largely undeveloped.  He said the access had been exclusively for the residents on the South Shore of Little Island Pond. 


Ms. Julia Steed-Mawson, member of the Little Island Pond Watershed Association, discussed the items that were important to her.  Such items included, but were not limited to the number of wetland delineations, flow and crossings that may not all be noted, and would require an additional permit; appropriateness of the site for senior housing due to the mosquito population and the health concerns/impacts of West Nile Virus for the elderly; non-point source pollution by development in the watershed; past work to try and foster partnership between the Little Island Pond Watershed Association and developer, land owner, Planning Board, Conservation Commission, Selectmen and in the past the former Planning Director.  She said the Association had tried, on three occasions, to engage in a dialogue with the developer to further discussions for a potential compromise to mitigate some of the effects of the development; the overtures for conversation had been denied.  Ms. Mawson said as a result of not being able to engage in dialogue, the Association felt there was no choice but to request that the Board consider the request extremely carefully and deny the plan. 


Ms. Holly Saurman, Scenic View Drive, clarified Ms. Steed-Mawson’s statement and said it was untrue that negotiations and discussions had been ignored.  She said prior to coming to this stage of the discussion, her husband took plans into Ms. Steed-Mawson’s home, and sat with some of the people opposing the plan, only to be threatened with a law suit.  Ms. Saurman said that’s why they felt it was important to move forward with the project.


Attorney DeCarolis said per the ordinance, site plan approval was needed from the Planning Board.  He said the regulations require the applicant to obtain written confirmation from the Fire Chief, Health Officer and the Code Enforcement Department and for the plan to meet all criteria of the regulations that each have jurisdiction over.  He noted that the Board should already have received the three confirmation letters.  Attorney DeCarolis pointed out that there were approximately one hundred thirty-four (134) homes along the shore of Little Island Pond within a forty (40) acre stretch with a density of ten (10) bedrooms per acre, whereas the proposed plan equaled two (2) bedrooms per acre. 


Attorney Donovan said the issue with the Smith Road access was actually the curb cut, and who had the authority to grant such; it was his belief that the authority lay only with the Trustees of the Smith Road Trust because they owned it through adverse possession. 


Mr. Scanzani summarized that the Board started the plan for consideration on May 5, 2003.  He said there had been several revisions since that time to address many of the issues.  He said the environmental survey was thought to have been done, but was actually done at a later point (due to a miscommunication of the interim Planning Director); there were procedural questions regarding zoning – which several opinions, from three attorneys had been reviewed; environmental studies/delineations have been done and reviewed by three companies; research regarding Smith Road has also occurred.  He said the Board should provide/show a clear path of how the Board made its decision. 


Mr. Scanzani listed the following issues he believed the Board should vote on:


1)     Zoning  – Special Permit – zoning currently states that favorable comment from the Conservation Commission is required, which is not forthcoming in this case – such language is in conflict with certain RSA’s and the Board should take a position.  Mr. Scanzani asked that the Board take the position (based upon multiple legal consultation) that not requiring a favorable comment from Conservation Commission is correct and further that the zoning language is in the process of being re-codified in accordance with state statues.  The Board was in agreement with Mr. Scanzani’s statement.  Mr. McNamara said under Section 307.40 of the Subdivision Regulations he was bothered by subsection A-1 ‘essential to the productive use of land’.  He was unsure on a factual basis how a determination of what is essential to the entire parcel should be made.  Mr. Culbert felt ‘essential’ was subjective.  It was Mr. Scanzani’s opinion, that the Board should view productive use of land on what is thought to be how a court system would rule regarding it.  He noted in order to mitigate some of the issues with wetlands the Board worked with the applicant to reduce the number of units.  Mr. McNamara continuing to review Subdivision Regulations, Section 307.40, believed the Board, at a minimum, should require fairly specific landscaping, construction restrictions on tree removal, wetland impact and labeling to help mitigate/minimize detrimental impact of such use on the wetland.  Mr. Scanzani believed the environmental reports should be reviewed in regard to what the Board could do, specifically in the zoning and subdivision regulations;  he then noted better protection may be available through a ‘best practices’ standpoint from what the regulations allowed. 


2)     Smith Road – private road - adverse possession  - Mr. Scanzani said that the Board requested legal opinion from two (2) sources; Town attorney agreed that Smith Road is private; at which point, the issue of adverse possession arose and the ability of the Fire Department to require an emergency access.  He suggested, with regard to the proposed parcel, that the Board take the position of the state statue, which clearly indicates private roads are owned to the center line by the abutting properties to the road, and therefore the emergency access is the right of the Fire Chief.  Mr. McNamara felt it was important that the Board gather as many facts about the claim of adverse possession, because he felt at this time the Board did not have enough information on whether or not adverse possession applied in this case.  Mr. Scanzani said that the Board received advice from its attorneys that they didn’t feel adverse possession applied in this case.  Mr. DeLuca wanted to know what would prevent people from using the Smith Road emergency access road in the event the egress to the proposed development was blocked.  Mr. Culbert said the access to Smith Road was being requested as access for emergency vehicles.  It was his understanding if adverse possession did not apply, the road would be able to be used by the abutter.  He noted that adverse possession had not been challenged.  Mr. Scanzani said the driveway, without the access to Smith Road, did not violate the Town regulations, however the Fire Chief had requested the emergency access (the Planning Board has never challenged the life safety recommendations of the Fire Chief).  Mr. Scanzani said that Smith Road was not a public road, or something the Board had jurisdiction over; any design for emergency access would be done to the Fire Chief’s specifications.  Mr. Culbert said he was basing his opinion from Town Counsel’s advice that Smith Road is a private road, not subject to adverse possession.  He said in his view, the access onto Smith Road was solely for emergency access by emergency vehicles.  Mr. Scanzani said the recommendation of the Safety Committee was for the access to be gated with bars.


3)     Elderly Housing – Mr. McNamara said that the Board had received opinion from both Town Counsel, and independent counsel that advised elderly housing was not required to meet multi-family dimensional requirements.  He reviewed Section 307.18, Table II of the Subdivision Regulations which listed multi-family and elderly housing as different uses; the default clause, Section 307.55 reads if there are inconsistencies between requirements of the elderly housing ordinance and other requirements, the elderly housing ordinance governs; Section 307.12-a there is wording that states all buildings not contained in Table I shall conform to single-family requirements.  Mr. McNamara said based upon Counsel’s opinion and the Subdivision Regulations, the Board had ample evidence that the two were different applications and treated as such.  He said the opinion was not being based upon past practice, but rather from counsel’s opinion and the wording in zoning. 


The Board was in agreement to all the zoning issues, as discussed.  Mr. Scanzani said the remaining issue was the site plan regulations and the subdivision plans.


Mr. Scanzani said that the plan has gone through multiple revisions, an Environmental Impact Analysis had been prepared and further information had been submitted by West Environmental, Gove Environmental Services and Louis-Berger Group (some of the information conflicts).  He said if the proposal were reviewed from a standpoint of lots to be developed on a ten (10) acre parcel, the topography (other than being upstream of Little Island Pond) trees and vegetation was not very different from other parcels the Board dealt with.  He said the issue was how the Board would protect the parcel, such as delineating trees, minimizing some of the impervious surfaces, etc. and determining which aspects would work.  Mr. Scanzani believed there were also some issues regarding Louis-Berger’s recommendations (such as set backs, which had previously failed at Town Meeting); Gove Environmental had made recommendations, which would have to be voluntary because the items were not contained in the Town’s zoning.  He suggested that the Board request a meeting with Louis-Berger, Gove Environmental, applicant, Planning Director and members of the Planning Board to review the environmental issues and how they could be protected.  He gave examples of what actions could be taken to provide protection to the areas of sensitivity on the lot. 


Mr. Yarmo said that the WCD area was already protected, and didn’t feel that adding signs would provide additional protection of that area.  He said most of the buildings and road was abutting WCD, except for a portion at the end of the site.  He didn’t feel there was much that could be done to mitigate the areas. 


Mr. McNamara was disturbed by the testimony provided by Mr. Wood (Louis-Berger) regarding potential impacts in connection with vernal pools that could not be answered until March. 


Ms. Bousa said the Board received environmental impact information of ‘potential’, and ‘I don’t know’; she said there was no way the Town could hold every public hearing in March when there was suspect of a vernal pool.  She felt the Board should base its decision on information presented at the time of the hearing. 


Mr. Scanzani noted that there was conflicting information contained in the environmental studies.  He said it was the Board’s job to review all information and determine what was true and make the best decision possible.  He believed the Board could be pro-active by holding a joint meeting with interested parties to work through the issues.  Mr. Yarmo said in the past, the former Planning Director had advised the Board that its duty was to provide a common sense approach to development.  He believed if the Board was to provide such an approach the conclusion would be that the development was not appropriate for the parcel.  He said forty percent (40%) of the road was in the WCD, which was critical to the wetlands.  He said there was not enough information contained in the consultant’s report of the environmental report.  He then noted  the impact to the wetlands would not be just seven hundred fifty square feet (750SF), but rather to the entire system. 


Mr. Yarmo noted a seventeen (17) lot development on the abutting parcel was denied by the Planning Board based upon environmental purposes.  Mr. Scanzani added that after further discussion, a six (6) lot subdivision was approved on the abutting parcel.  Mr. Yarmo brought up the fact that in an effort to preserve the environmental quality of the adjacent parcel, the Town spent $150,000, took $65,000 from an LCHP Grant and $50,000 from abutters.  He pointed out that the Gove Environmental report stated that the development was detrimental to the parcel.  Mr. Culbert said he didn’t feel denying the plan was the proper step, but rather finding a balance between the environment and development, as was done with the last plan for the adjacent parcel.  He noted that the applicant had already reduced the number of units.  Mr. Scanzani said that the engineer had presented a plan that crossed to the back parcel, which was revised because of the sensitivity data.  He said the Board had already reviewed several designs which were revised to cut back the development.  He also wanted to find a balance between the environment and development. 


Mr. Yarmo reviewed the environmental report and said the development of the parcel would have a detrimental impact on the conservation aspects.  He said the Town consultant concurred.  Mr. Culbert said neither of the reports recommended denying the application.  He said he would like to set up a meeting with Louis-Berger, the applicant, Gove Environmental, Mr. D’Andrea and a couple members of the Board to review the proposed plan and see if a balance could be reached.  He said the meeting should occur after March to see if there were vernal pools on the site.  It was noted that the application was submitted in March, 2003, but the EIA was not done until a later time due to a miscommunication with the Planning Department, who at that time was under tremendous strain and employee changes.  He felt the applicant was good to the Board by granting extensions. 


Mr. Zohdi suggested that the Board approve the plan subject to coming up with a ‘happy medium’.  The Board did not agree with the suggestion.  Attorney Gorrow said she didn’t have the benefit of all the information.  She said that the cooperation of people was a benefit, but didn’t feel that the applicant should be kept ‘in limbo’ waiting for information.  Mr. Scanzani said that the Board had requested information and received it.  He recommended that the Board place an item on the work session agenda and try to come to an agreement regarding the environmental issues and make a decision at that point.  He asked if the applicant would agree to an additional two week extension.  


Ms. Bousa said that any development on the site would have an environmental impact, which didn’t mean the site was not developable.  Mr. Wood didn’t feel that the Louis-Berger report was in conflict with Gove Environmental’s report.  Mr. Scanzani noted that there had been an additional report done by West Environmental that contained additional information.  Mr. Yarmo wanted it known that the denial of the Picard property had nothing to do with negotiations to purchase the land, the negotiations started well before the parcel was denied. 


There was a brief discussion regarding how to proceed.  The Board members agreed to hold a meeting at the next work session with the interested parties to review ways of minimizing the impacts.  The work session was scheduled for February 23, 2004.  Mr. Zohdi asked if a meeting could be set up prior to February 23, 2004 between Mr. D’Andrea, Gove Environmental and the Town’s environmental consultant to discuss possible plans and work with the issues.  Mr. Culbert said the Board was looking for a balance; the environmental people, applicant and Mr. D’Andrea should get together and come up with the best balance for the land.  Mr. Scanzani said there was nothing to preclude Mr. Zohdi from meeting with the environmental people to work out the issues.  Mr. D’Andrea did not have a problem working with the applicant to discuss the environmental issues.  It was noted that the information from the meeting with Mr. D’Andrea would be presented at February 23, 2004 Planning Board work session.  Anyone interested in obtaining a copy of the information prior to the meeting was told to contact Mr. D’Andrea to find out if the information was available.    


The applicant was in agreement with the extension and would provide written documentation of such.  The plan was continued and date specified for February 23, 2004. 


Ms. Ouellette and Mr. Lynde returned to the Board.


Map 7 Lot 4-185 – Geoffrey Detellis – Benoit Avenue – Proposed 4-Lot Subdivision and Seeking Special Permit for Wetland Crossing for continued consideration


Mr. Peter Zohdi, Herbert Associates presented the plan to the Board.  He showed what roadway grade revisions had been made.  He said two parking spaces had been reserved part way up the driveway.  He noted that a circular area had been added for emergency vehicle turnaround and also that an access way had been added to the Town land in the event of a fire, or an emergency.  He said the major fill section was between station thirteen and station sixteen (up the road 300’-400’) with an average of eleven to twelve feet of fill. 


Mr. DeLuca believed there was a problem with the previous presentation in which it was stated that the roadway width was going to be twelve feet (12’), which wouldn’t allow for emergency vehicles to pass each other.  Mr. Zohdi said he had discussed the roadway with the Fire Chief and the width would be eighteen feet (18’).  He discussed additional alterations that could be made to ‘flatten’ out the roadway further.  Mr. Scanzani wanted to know if a retaining wall, or guardrails, in certain areas would be added to prevent cars from sliding off the road down a steep slope.  Mr. Zohdi said he would review and work with his client to come up with a proposal.


Mr. McNamara asked if the hold harmless agreement had been drafted and submitted for review by Town Counsel.  Attorney Paul DeCarolis, representing the applicant, said the agreement had not been submitted at this time and requested that submission be a condition of approval.  Mr. McNamara asked if an enforcement clause for the maintenance of the road was also included in the language.  Attorney DeCarolis said that the two property owners were solely responsible to maintain the road and hold the Town harmless from any maintenance.  Mr. McNamara wanted to know how the Town’s access would be protected.  Attorney DeCarolis said language would be incorporated that the access remain open; such language would be registered at the Registry of Deeds.  Mr. Scanzani wanted to know how the access would be constructed.  Mr. Geoffrey Detellis informed that the Fire Chief wanted the access to be gravel.  Mr. Scanzani confirmed that the access would be cut to the Fire Chief’s specifications to the parcel. 


Mr. McNamara discussed his dislike of two lots being accessed by the one driveway, particularly given the length and steep grade, and felt it set a bad precedent.  He believed if the access to Town property was not obtained through the proposed plan that the Town would have to pay to have an easement/driveway.  


Mr. Lynde asked if the center of the cul-de-sac would remain green space.  Mr. Zohdi said the center of the cul-de-sac was being proposed to be vegetation and grass. 


Mr. D’Andrea noted that he had not seen the revised plans prior to the meeting.  Mr. Zohdi said copies of the plans and drainage would be brought to the Planning Department in the morning.  Mr. Culbert reminded Mr. Zohdi that plans were supposed to be submitted seven (7) days prior to scheduled meetings.  He said that the plans still needed engineering review before further action could be taken. 


The plan was date specified to the March 1, 2004 meeting. 


Map 7 Lot 4-180-17 – Two M Construction – Benoit Avenue – Proposed 2-Lot Subdivision for continued consideration


Mr. Culbert said that the applicant requested that the Board not hear the application.  The request was granted, the Board will hear the application on March 1, 2004. 


Miscellaneous Discussion


Mr. Scanzani noted that a petition warrant article had been submitted for the traffic signalization of the Town Center.  The warrant article did not have Selectmen approval.  Mr. Scanzani asked that the Board submit a letter to the Selectmen indicating the Board’s position of maintaining a colonial Town Center and request that all options for traffic management be reviewed.  He asked that the Board forward a letter to the Selectmen that stated the opposition to the petition warrant article for traffic signalization noting it was against the long-term goals.  The Board agreed that a letter should be sent to the Selectmen stating the Board’s position. 


Mr. Lynde asked for the Board’s support with regard to the warrant article for the study of fire station needs.  There was no opposition to supporting the warrant article. 




December 1, 2003



(Scanzani/McNamara) To approve the December 1, 2003 meeting minutes as amended.




(7-0-0) The motion carried.


January 5, 2004



(Scanzani/McNamara) To approve the January 5, 2004 meeting minutes as amended.




(6 - 0 - 1) The motion carried.  Mr. DeLuca abstained.


January 15, 2004



(Lynde/McNamara) To approve the January 15, 2004 meeting minutes as amended.




(5 - 0 - 2) The motion carried.  Mr. Scanzani and Mr. DeLuca abstained.




February 23, 2004

Map 30 Lot 11-93 – Cormier & Saurman Building, LLC – Dutton Road – Proposed Elderly Complex for Site Plan Review and Seeking Special Permit for Wetland Crossing for continued consideration


March 1, 2004

Map 7 Lot 4-180-17 – Two M Construction – Benoit Avenue – Proposed 2-Lot Subdivision for continued consideration


Map 24 Lot 12-224 – Anastasia Wickwire – 43 Ledge Road – Proposed 2-Lot Subdivision for consideration


Map 7 Lot 4-185 – Geoffrey Detellis – Benoit Avenue – Proposed 4-Lot Subdivision and Seeking Special Permit for Wetland Crossing for continued consideration




A motion was made and seconded to adjourn the meeting.


The meeting was adjourned at approximately 11:30pm.

                                                                                          Respectfully submitted,


                                                                                          Charity A. L. Willis

                                                                                          Recording Secretary