PB Minutes 4-05-04

APPROVED

TOWN OF PELHAM

PLANNING BOARD MEETING

April 5, 2004

The Vice Chairman, Peter McNamara called the meeting to order at 7:30 pm.

The Secretary, Bill Scanzani, called the roll:

PRESENT:

Peter McNamara, Bill Scanzani, Gael Ouellette, Robin Bousa, Alternate Bob Yarmo, Planning Director Will D’Andrea

ABSENT:

Paddy Culbert, Henry DeLuca, Selectmen Representative Victor Danevich, Alternate Raymond Brunelle

Mr. McNamara noted that there were five members of the Board present, but due to recusals, there would be a problem hearing the agenda item Map 1 Lot 5-104, 113,115 – Sousa Realty & Development – Lawrence Corner – Proposed 20-Lot Subdivision – Court Ordered Remand. Attorney Brad Westgate, (Concord Street, Nashua NH), representing the applicant, requested placement onto the next agenda. Mr. Scanzani suggested that the case be placed first on the agenda. The Board agreed. The case was date specified to the April 19, 2004 meeting.

Mr. McNamara informed that Mr. Yarmo would be voting in Mr. DeLuca’s absence.

ADMINITRATIVE

Map 24 Lot 12-44-9, 14 – DHB Home Builders, Inc. – Mulberry Estates Phase II – Well Radius Waiver Request

Mr. D’Andrea informed that the Board could not take action due to a problem with abutter notification because the applicant did not meet the required fifteen day submittal.

There was no representative present.

Mr. D’Andrea said that abutter notification could be done in time for the April 19, 2004 meeting. After a brief discussion, the Board decided to date specify the request to April 19, 2004.

Map 7 Lot 4-180-14 – Two M Construction – Benoit Avenue Extension – Request for bond reduction

Mr. D’Andrea said there had been a question regarding the construction of the 100ft. section onto Benoit Avenue Extension; a site walk had been scheduled and performed.

Mr. Scanzani reviewed the file and noted that bond reductions had already been done. He said that TF Moran had calculated the bond reduction by taking 10% off the already reduced amount, rather than from the bond original amount. The original bond amount was $248,500, which was reduced to $174,200 on October 7, 2003; (10% of $248,500 is $24,850). To retain 10% of the original bond ($24,850) the current bond ($174,200) would be reduced by $149,350. Mr. Scanzani noted that all of the other conditions had been met.

Mr. D’Andrea asked if there was a question at the site walk regarding the bonding of the remaining section of roadway. Mr. Yarmo answered yes; there was a question as to what assurance the Town would have that the portion of the stub would be bonded. He believed that Mr. Gauthier would be responsible. There was a brief discussion regarding who would be responsible for the 100ft. section of the road and what the approximate cost would be to do the paving. It was believed that $10,000 would be an adequate amount to complete the stub roadway work.

MOTION:

(Scanzani/Yarmo) With regard to Map 7 Lot 4-180-14 – Two M Construction – Benoit Avenue Extension, based upon the site, the calculation of the Town Engineer (TF Moran) is rejected; instead $24,850 (10% of the original bond) plus an additional $10,000 (to bond the stub) totaling $34,850 shall be retained; the $10,000 will be eligible to go back to the development as soon as the entire new subdivision bond is in place for the road if it gets extended.

VOTE:

(5-0-0) The motion carried.

Map 8 Lot 9-63 – Cormier & Saurman Building – Woodlawn Drive & Sycamore Street – Request for final bond release

Mr. Scanzani said the Town voted to accept the road. He discussed the site and suggested that the Board consider reviewing subdivisions and areas of the sites from a ‘finished’ standpoint and make recommendations (i.e. retaining walls). Mr. D’Andrea was unsure if the bond included additional work. The Town Engineer and the Town Road Agent reviewed the roads prior to them recommending acceptance at Town Meeting. Mr. Scanzani said the current retained amount is $22,100. Mr. D’Andrea’s recommendation was to release the full bond amount.

MOTION:

(Yarmo/Ouellette) To release the entire bond amount of $22,100 with regard to Map 8 Lot 9-63 – Cormier & Saurman Building – Woodlawn Drive & Sycamore Street.

VOTE:

(5-0-0) The motion carried.

NEW BUSINESS

Map 38 Lot 1-153 – Nealt (Gagnon) – Sherburne 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 of Grainger Engineering, Hudson, NH, representing the applicant, reviewed the plan with the Board. He said the lot currently contained approximately 3.5 acres and the applicant would like to divide the property in half. He said the new lot would contain approximately 2.4 acres with a single family home, four-bedroom septic and a well. He noted that the state subdivision approval had been received and the individual septic design had also been received. The only pending item is the state DOT driveway permit; Mr. Grainger said he had to provide the history of the lot dating back to 1971 before the driveway position could be approved. He mentioned that some cutting would need to be done for site distance; there was 400ft. site distance from one direction, and 350ft. from the other direction.

Ms. Bousa asked if the site distance measurements were performed in conformance with ASHTO. Mr. Grainger believed they were.

Mr. McNamara confirmed that the test pits and perk test area were located in the 4K area. Mr. Grainger answered yes. He said the plan had been forwarded to DES for their approval number. Mr. McNamara asked if there were any problems with wetlands on the property. Mr. Grainger said there were no wetlands on the property.

There was no public input.

Ms. Bousa suggested that a condition of approval be based upon receipt of the DOT permit.

MOTION:	(Scanzani/Ouellette) To accept the plan for consideration.
VOTE:	(5-0-0) The motion carried.
MOTION:	(Scanzani/Bousa) To approve the plan subject to the applicant obtaining the state driveway permits.
VOTE:	(5-0-0) The motion carried.

Map 4 Lot 9-69-15 – DiGrazia – Arlene Drive – Proposed 2-Lot Subdivision for consideration

Mr. Wes Aspinwall, land surveyor with Herbert Associates, representing the applicant, presented the plan to the Board. He reviewed the location of the lot and explained in the past that there had been a cul-de-sac, which was later revised through a previous subdivision. The applicant’s intention is to retain a lot with 1.2 acres containing an existing house and retaining an additional lot with approximately two acres. Mr. Aspinwall then reviewed the topography of the parcel. He said the subdivision had been approved by the state for both lots, with copies sent to the Town. He then discussed the soil types that had been delineated by Gove Environmental. Mr. Aspinwall went on to review the calculated frontage for the existing lot and the proposed because there had been a question if the parcel conformed to the Town’s regulation of 200ft. of frontage. He said the frontage was separated between two Town roads and when the Zoning Officer was questioned, his initial opinion was that the lot did not comply because of the split in the calculation. He said the zoning ordinances did not call for the frontage to be contiguous. Mr. McNamara said that zoning had been amended. Mr. Aspinwall said the zoning changed subsequent to the plan being reviewed by the Zoning Board of Adjustment (‘BOA’). He said as a result of the opinion that the lot did not comply; the applicant filed an Appeal of Administrative Decision and a Variance request with the BOA. He said that the BOA’s opinion was that the right-of-way was viable and that the proposed lot conformed to the letter of regulation in the Zoning Ordinance. He said the BOA issued an opinion that the lot was conforming and therefore asked that the appeal and variance request be withdrawn, which the applicant did.

Mr. McNamara, who is also a member of the BOA, recalled that the BOA’s decision was based on the fact that the right-of-way was public, and therefore had 200 contiguous feet. He said the Planning Director may now have information that the right-of-way was not public. In Mr. Aspinwall’s opinion the roadway was dedicated from an original plan based upon it being listed as a future road plus a utility right-of-way.

Mr. Scanzani reviewed the subdivision approval done in 1998 and noted that the area of the right-of-way was not included in the deed for ML 9-146-7, but was included on the plan for ML 9-146-7. He said it’s the deed that indicates what a property owner owns and the fact that the right-of-way is shown to be part of the lot (on the plan) indicates that the plan should be updated. Mr. Aspinwall discussed the original subdivision plan done for Mr. Gordon Holmes in September, 1981. He said that the 1981 plan showed the right-of-way established. He then reviewed the subdivision plan done in 1997/1998 which showed a dashed line and said graphically the plan was the same. Mr. Scanzani noted that a planning board could not obligate a future board to its decision. He believed in 1981 the right-of-way was added as a potential road, which was never put in because the road ended as a cul-de-sac; in 1997/1998 a future planning board approved additional subdivisions in the area and either decided that the right-of-way was not needed anymore, or when the plan was recorded, it was done without showing the right-of-way from the previous plan. Mr. Scanzani argued that the deed was what the property owner owned, and the right-of-way still existed as a public right-of-way. He said a right-of-way that was that was given to the Town through a previously approved subdivision could not be taken away from the Town by a subsequent planning board, jurisdiction of a signature, or not being engineered into a later plan. Mr. Scanzani said the question now is does the applicant meet the other requirements in zoning for contiguous frontage, which in his opinion did not. Mr. McNamara said that the BOA determined that the frontage was contiguous. Mr. D’Andrea said that the BOA clarified the appeal for the lot having frontage, but also contemplated that the Planning Board might require the applicant to make improvements to the right-of-way to bring it up to standards. Mr. Scanzani felt the right-of-way should be brought up to specifications and connected to Moeckel. Mr. Aspinwall pointed out that there was currently a direct connection to Moeckel and didn’t see the practicality of an additional connection. He said that lot 7 may have detriment being boxed in by a road system. Mr. Scanzani felt the only other option would be for the applicant to go back to the BOA for a frontage variance. Ms. Bousa agreed. Mr. D’Andrea read a portion of the September 8, 2003 BOA meeting minutes aloud.

Mr. Aspinwall contended to the Board that proper frontage could be calculated based on the current layout of the road and right-of-way. Mr. Yarmo noted that the portion of the right-of-way did not belong to the lot.

Ms. Bousa reviewed the language for the right-of-way, which specifically states that it is for utilities and future road. She felt if there was no intention of building a road it could not be frontage. She questioned why the right-of-way would be kept if a road was not going to be built; why not give the right-of-way back and adjust the lot line to provide the frontage. Mr. Scanzani provided his recollection of the Gordon Height’s subdivision, which he believed was the only subdivision where the electric utilities were allowed to come in from Public Service rather than Granite State. Mr. Aspinwall confirmed that the Public Service electric utilities did come through the right-of-way that was in question. Based upon the location of the utilities, the argument was made as to why the right-of-way could not be given back. Mr. Scanzani reiterated his opinion that the road should be paved, or a variance should be requested. Mr. D’Andrea reviewed the definitions for Frontage and Right-of-Way as contained in the Zoning Ordinance. He further reviewed the definition of Class V Highways as contained in the RSA’s. Mr. Scanzani said that the Board had never allowed a stub to be used as frontage. In his opinion the easiest thing would be to ask the applicant to go back before the BOA to specifically request a variance for the frontage. He felt there was a valid hardship to the lot that would make a board of adjustment decision easier. He suggested that the Planning Board send the BOA a letter indicating the issues and why the passage of a variance was being recommended.

There was a brief discussion regarding the road asymmetry and the location of the right-of-way.

Ms. Bousa said she had some concern regarding the location of the proposed house being four feet from the WCD. It was also noted that the footprint for the proposed house was small, which could pose a problem during construction. Mr. Aspinwall said they would propose the addition a silt fence along the WCD and could stake out the proposed location. Mr. Yarmo suggested rotating the house and possibly making the plan site specific to keep functioning space between the structure and the WCD. He asked if a dredge and fill permit would be required. Mr. Aspinwall said there would be no wetland impact. Mr. D’Andrea noted that the WCD would be crossed by the proposed driveway, which would require review by the Conservation Commission.

Mr. Yarmo didn’t feel that the lot met the frontage requirements. There was further discussion regarding the position of the right-of-way and what footage was needed to obtain the required 200ft. of frontage. Mr. Aspinwall showed the Town owned portion of the road, which cold not be changed without a release from the Selectmen. He asked if the Board could request Town Counsel’s opinion.

The Board discussed the options – 1) send to BOA with letter and not accept the plan at this time; 2) say in affect, that there is 200ft. of frontage and accept the plan for consideration; or 3) accept for consideration and send the plan to Town Counsel for advice. Mr. Scanzani made a motion to accept the plan for consideration; there was no second. He then suggested that a letter be sent to the BOA indicating that the Board saw the extenuating circumstances and agreed that the applicant should have the lot approved based upon the lack of frontage, but currently did not meet the requirement.

The consensus of the Board was that the applicant would need to go to the BOA to request a variance for frontage. Mr. Scanzani suggested that Mr. D’Andrea send a letter on behalf of the Planning Board indicating the extenuating circumstances based upon the right-of-way and the roads as well as a description of the action of the 1997 planning board. He believed there were two options, either withdraw the application and meet with the BOA, or deny the plan; either way, the abutters would have to be re-notified. Mr. Aspinwall disagreed with the Board regarding the frontage, which he felt was there. He agreed to withdraw the application, meet with the BOA and return to the Planning Board with the BOA decision.

Map 20 Lot 3-130-4 – A.G.A.N. Realty Corp. – Bear Hill Road – 2-Lot Subdivision for consideration

Mr. Scanzani reviewed the file and was unable to locate the green registered mail confirmation receipts. He was not comfortable hearing the case until the file contained confirmation of abutter notification. Mr. Wes Aspinwall, land surveyor with Herbert Associates, representing the applicant asked if the case could be continued to the next meeting if the green cards were found. There was a brief discussion regarding what action would be taken. Mr. D’Andrea said he could go to the Planning Office and see if the green cards were there.

The Board moved to the next case. See below for action regarding this application.

Map 41 Lot 10-310 – Cerullo – Route 38 – Modification to Approved Site Plan

It was noted that the green registered mail confirmation receipts were not located in the file. Mr. D’Andrea went to the Planning Department to see if the green cards were there.

The Board moved to the next case. See below for action regarding this application.

OLD BUSINESS

Map 6 Lot 4-180-17 – Two M Construction – Benoit Avenue – Proposed 2-Lot Subdivision for continued consideration

Mr. Matt Hamor of Meisner Brem Corporation, representing the applicant, met with the Board and discussed the proposed subdivision. He noted that the applicant had been before the Board in January, 2003. He said when Benoit Avenue was approved, a ten-acre lot remained as one lot. He said at the hearing the Board instructed the applicant to obtain a state permit from the NHDES Wetland Bureau in order to cross the wetland for the driveway. He noted that the permit had been obtained and provided the Board with a copy. Mr. Hamor said there had been an adjacency issue to the wetland area, and an issue with filling wetlands; a 20ft. clear-spanned bridge (similar to that constructed at Meadowview Estates) has since been proposed that would provide a full corridor to the two wetland areas, and would allow for no wetland impact for the crossing. He said that NHDES felt as though the bridge would not adversely affect the prime wetland. Mr. Hamor said as part of the application to the state an extensive research is required for endangered species, historical structures etc.; nothing was found. He said that the driveway had been extended so that the structure and the leaching area could be further away from the prime wetland area.

Mr. McNamara confirmed that the applicant was before the Board in January, 2003 and questioned if the plan had subsequently been withdrawn. Mr. Hamor said the subdivision had been tabled; the applicant obtained the permit from the state and re-notified all the abutters for the current meeting. Mr. Scanzani reviewed the file for the last action taken and recommended that the plan be treated as a new application under New Business. Ms. Bousa asked if the abutter list was up-to-date. Mr. Scanzani said the abutter notifications were re-sent out on March 15, 2004; the abutter list in the file had not changed; the green registered mail confirmation receipts show a date of January 23, 2004. Mr. McNamara said he was concerned about being beyond the time limitation. Mr. Hamor respectfully requested that the application fall under the 2003 regulations since that was the time the application was initially submitted and therefore any subsequent zoning changes would not affect the subdivision approval.

There was a discussion regarding when the plan first came before the Planning Board (March, 2003) and it was noted that the Board had not seen anything since the May 5, 2003 meeting. The applicant had not submitted requests for extensions after the May 5, 2003 meeting. Mr. Scanzani believed that the plan was ‘dead’ and would have to come back to the Board as a new submission. Mr. Hamor said that the Board instructed the applicant to obtain a permit from the state, which took the state approximately seven or eight months to forward approval (which was in January, 2004). Mr. McNamara recalled that the Board did not request the applicant to obtain a permit, but rather the applicant said they were going to obtain a permit from the state and therefore requested that the application be ‘tabled’ or ‘withdrawn’ (he was unsure of the exact wording). Mr. D’Andrea read aloud a letter submitted by the applicant on May 5, 2003 which requested that the application by ‘tabled’ until such time as the outstanding issues with NHDES were rectified; the letter also stated that the abutters would be re-notified. He then reviewed the Planning Board minutes of May 5, 2003 in which the former Planning Director Amy Alexander informed the Board that the Two M Construction withdrew their application pending information from the state, abutters would be notified when the plan would be heard again; after Ms. Alexander’s statement Mr. McNamara asked (during the May 5, 2003 meeting) if the applicant would also withdraw their application for a variance submitted to the Board of Adjustment, Ms. Alexander answered yes. Mr. D’Andrea reviewed the Board of Adjustment file of May 9, 2003 which included a similar letter from the applicant’s representative requesting that the application be ‘tabled’. It was Mr. Hamor’s understanding that ‘tabling’ an application was in essence granting an extension. Mr. McNamara said the minutes reflect that that the Board requested that the application be withdrawn. Mr. Hamor did not recall formally withdraw the plan. He believed because the timeframe was unknown for when they would come back before the Planning Board, out of courtesy they said they would re-notify the abutters. Mr. McNamara didn’t believe that the Board had continued a plan for that length of time without taking any action. Mr. D’Andrea noted that the plan had changed prior to the one being reviewed by the Board of Adjustment.

Mr. Scanzani reviewed the timeline of the application – January 22, 2003 original completed application submitted; February 6, 2003 original hearing scheduled, but not heard (possible busy month for Board); March 3, 2003 accepted plan for consideration; May 5, 2003 still discussing application and withdrawn. He reiterated his belief that the application should be under New Business and file a new plan.

Attorney Bernard Campbell of Beaumont & Campbell Professional Association appeared with the engineer on behalf of the applicant representing the applicant, asked what motion the Board made on May 5, 2003. He wanted to know wanted to know what the Board’s resolution would be regarding the re-application fees. Mr. McNamara said he would expect the applicant to assume the fees. Mr. Yarmo agreed.

Mr. Scanzani reviewed the file and reiterated that the only motion taken by the Board was on March 2, 2003 to accept the plan for consideration with a 7-0-0 vote. He said the Board discussed the application again on May 5, 2003 and went on to read the portion of the meeting minutes previously read by Mr. D’Andrea. Attorney. Campbell asked if the applicant was present for the May 5, 2003 meeting. Mr. Scanzani was unsure.

Mr. McNamara said the problem was the length of time. He said if the application was continued indefinitely it would have had to come back to the Board for further continuation. Attorney Campbell asked if the Town’s regulations contained lapse provisions for inactive applications. He said in the absence of such a provision if Two M Construction were able to demonstrate that they were diligently pursuing the state permit from May, 2003 to present what would be the basis to assume there was a withdrawal. He didn’t know what basis there was for Ms. Alexander to state that the application was being withdrawn or if there was any evidence to support such. Mr. Scanzani said that the Board had always used the Planning Director as the agent for acceptance for plans etc. he said the fact was that the applicant had not been back before the Board since May, 2003. He said the request for extension under the state provisions had not been met.

Ms. Bousa asked what date the letter from the applicant with the word ‘tabled’ in it was received. Mr. D’Andrea said the request from the applicant came in writing the same day as the meeting (May 5, 2003); Ms. Alexander then relayed the message to the Board.

Mr. D’Andrea asked if the Board wanted to consider the same application that was before the Board of Adjustment because the plan did not comply with the 200ft. frontage requirement. He noted that the plan was different from that presented to the Board of Adjustment in 2003. Mr. Scanzani asked if the Planning Board was having a conceptual discussion since the current plan did not have the required 200ft. of frontage, and it had not been granted a variance. Attorney Campbell said he had not yet reviewed all the minutes of the Board of Adjustment but believed that the Board of Adjustment wanted the Planning Board’s input and tabled the application. He discussed the procedure taken by other communities in similar situations where a plan was before a planning board without a variance being granted.

Mr. Scanzani said in the future he didn’t want a plan coming before the Planning Board that didn’t meet zoning. He was willing to make a motion stating such. Mr. Hamor said the reason the plan was before the Planning Board with regard to the regulation in connection with reduced frontage and back lots. Mr. McNamara recalled that the lot was left out of a previously approved subdivision because of the concerns with water, drainage and adjacency issues. He said it was those questions that sent the plan from the Board of Adjustment to the Planning Board.

Attorney Campbell asked if the Board would entertain comments to be brought back to the Board of Adjustment. Mr. Scanzani said the application was listed under old business and there was not proper notification. Mr. D’Andrea believed that proper notification was given. Mr. Scanzani reiterated that he felt the plan was ‘dead’ and the Board of Adjustment would need to act on the plan before the Planning Board could react. He said if the applicant wanted some clarification of possible position a conceptual design could be submitted to the Planning Board.

Mr. McNamara asked if the applicant agreed that in order for the Board to accept the plan a variance would have to be in place. Attorney Campbell agreed that to be true. Mr. McNamara then asked if there was agreement that the Board’s current discussion would be conceptual and the next step would be for the applicant to meet with the Board of Adjustment as a new application. Attorney Campbell said he would need to research the ‘new application’ issue. Mr. McNamara asked if there was agreement that the plan would not move forward tonight. Attorney Campbell said he would like some input. He believed that the abutters were notified. He said the Board would be within its rights to downgrade the agenda and hold a lesser included discussion.

Mr. D’Andrea said because the only formal action on the application was to formally accept it (which the Board did); he said the Board could deny the original plan due to the frontage requirements not being met and then proceed with a conceptual discussion regarding the current plan being presented.

Ms. Ouellette asked what the procedure was when an applicant withdrew a plan. Mr. D’Andrea said the applicant would have to come back with a new plan. Ms. Ouellette asked if the Board would need to make a motion for withdrawal. Mr. D’Andrea said it depended on the board, but most boards would just accept the withdrawal. Ms. Ouellette believed that the Board, when given the information from the former Planning Director, accepted the withdrawal of the plan.

Mr. Scanzani reviewed the type of action a board may take to conduct a conceptual discussion and what is allowed to be discussed. There was a question regarding the abutter list and if a new list was obtained for the current meeting. Mr. Hamor said the abutter list was pulled approximately four or five weeks ago.

Attorney Campbell understood that the Board was taking the position that the matter had been withdrawn and no action was necessary. He said he would further review and requested that the Board ask Town Counsel to also review. Mr. McNamara believed the request was reasonable. Mr. Scanzani believed the plan should be discussed conceptually and request the applicant to file new application once they had met with the Board of Adjustment.

Mr. Yarmo didn’t believe that there were any conceptual comments to be made, just site specific, or design.

Attorney Campbell said he did not attend the original Board of Adjustment meeting, but understood that they had specific concerns. He said he would review the meeting minutes. He said if it is determined that there was an issue with re-submittal, the applicant would probably seek waivers of the fees since they were sent to the Board from the Board of Adjustment. He ended by saying he would discuss Town Counsel’s opinion with Mr. D’Andrea.

Map 20 Lot 3-130-4 – A.G.A.N. Realty Corp. – Bear Hill Road – 2-Lot Subdivision for consideration

As continued from above.

Mr. Wes Aspinwall, land surveyor with Herbert Associates, representing the applicant, discussed the proposed subdivision with the Board. He said Bear Hill Road had an existing two acre lot with double frontage. The applicant would like to separate the lot into two separate lots. Mr. Aspinwall said there was a cistern easement between the lots at the boundary. He said the bounds had been set and the road was paved, although he was unsure if it had been accepted yet. He said the state had approved the plan. He noted that the site specific soil study had been done by Gove Environmental. He believed that the lots complied with the subdivision requirements.

Mr. McNamara asked if the lots were part of the original development on Bear Hill Road; if so, why were they left off. Mr. Aspinwall said the double lot was set up and included in the original subdivision. He was unsure why it was left off, however it currently met the requirements for two lots.

Mr. Yarmo asked if the topography on the plan represented virgin land, or filled land. Mr. Aspinwall believed the topography showed partial regrading, and partial natural grading. Mr. McNamara asked if the topography showed the current conditions of the land. Mr. Aspinwall believed it did.

Mr. Yarmo questioned if the lot, in the initial subdivision due to slopes and grades was retained as a double lot. He wanted to know if the slopes had been rectified by grading/filling from the cuts and fills from the road. Mr. Aspinwall was unsure because the original subdivision was done some time in the past. Mr. D’Andrea said the original subdivision could be reviewed.

Mr. Scanzani asked what the sloping was for the lots. Mr. Aspinwall reviewed the proposed plan and said toward the front of the lots were ‘B’ slope (8%-15%) the back of the lots were steeper. Mr. Scanzani questioned how the lots fell under the regulations based on the high intensity soil needing more acreage. Mr. Aspinwall discussed how the lots would drain. Mr. Scanzani discussed the slopes of the lots based upon the proposed plan and questioned again if more acreage would be needed due to the steep slopes. Mr. Aspinwall went back to the plan and discussed the sloping of the lot further. Mr. Scanzani suggested that the Board walk the site. The Board agreed. Mr. Scanzani then suggested that the meeting minutes be reviewed from when the Bear Hill Road subdivision was approved.

MOTION:

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

VOTE:

(5-0-0) The motion carried.

PUBLIC INPUT

Ms. Jennifer Blake noted that her name on the abutters list (Jennifer Walker) was incorrect. She said her home was purchased with the belief that the lot in question was a one home lot, not a two home lot. She and her husband had concerns regarding the lot being aesthetically pleasing. She noted that the lot was very sloped and was unsure how two homes could be constructed. Ms. Blake ended by telling the Board that part of her view would be ruined if the homes were allowed. Mr. McNamara said the Board would set up a site walk that she and her husband would be welcome to attend.

Ms. Bousa asked that Mr. D’Andrea check with the Board of Selectmen regarding a subdivision off Mammoth Road that caused a lot of runoff on two properties that abut Mammoth Road. She believed that there had been formal complaints to the Selectmen.

The Board scheduled a site walk for April 17, 2004 at 8am.

The plan was date specified to May 3, 2004 meeting.

Map 41 Lot 10-310 – Cerullo – Route 38 – Modification to Approved Site Plan

Mr. Dave Brouillet of Herbert Associates, representing the applicant met with the Board to discussed the proposed plan. He began by circulating a copy of the current as-built and site plan (signed by the Board November 5, 2001). Mr. D’Andrea noted that there was one modification in September, 2003, which the Board had a copy of in their member packets. Mr. Brouillet said that some modifications were done in-field, such as the elimination of the additional turn-around area for the Fire Department (which the Fire Department deemed was not necessary). He said a retaining wall that was on the approved plan had been modified, the Planning Director at that time, made a field decision that it would be okay to slope back the side of the lot rather than constructing the retaining wall.

It was understood that the original plan had been modified, and the applicant was now before the Board requesting additional modifications. The modifications Mr. Brouillet was aware of were the turn-around area and the retaining wall. Mr. Scanzani had no problem with the Fire Department’s modification as long as a letter was submitted to the Board the Fire Department’s approval of such. However, he had a problem with the retaining wall being eliminated because of the slope going down to the wetland area being in excess of the Town’s regulations of 3-1. He said there was siltation in the wetland area. He said one of the reasons for the retaining wall was so that there wouldn’t be a steep slope next to a wetland area. Mr. Brouillet said a challenge they had was during the process of construction they were getting advice/direction from Town officials regarding the construction; he questioned who had authority under the site plan regulations because it was not clear what changes had to come back before the Board. Mr. Scanzani said typically the Board had allowed the Planning Director to make minor changes and decisions in the field, but he did not feel that a planning director had the right to waive Town regulations.

Mr. Yarmo asked where the retaining wall was deleted. Mr. Brouillet reviewed the proposed plan. Mr. Yarmo said there was not a lot of planting and questioned if it would be added. Mr. D’Andrea said the retaining wall was added to keep runoff in the WCD. Ms. Ouellette said the current condition of the WCD was a mess because of the amount of siltation. Mr. Yarmo confirmed that regrading would be done behind the retaining wall to lessen the slope. He asked if the area could be re-planted. Mr. Scanzani said the current slope was narrow and could not be planted. Mr. Brouillet understood the Board’s concerns and suggested that the slope could be stabilized and constructed properly which would minimize the erosion. He said a retaining wall could be constructed, but the area would still not be stabilized. He asked that the Board provide guidance.

The Board discussed the proposed and the reasons that the retaining wall had been added to the plan initially. Mr. Brouillet said he had not seen the site, but asked if he would be allowed to come back before the Board with solutions to some of the problems. He asked if the Board would be open to alternate solutions, or if the only wanted a retaining wall. Mr. Scanzani said he could not be convinced that anything other than a retaining wall would meet the requirements and the Board’s goal of staying out of the WCD. Mr. Brouillet asked if the only way to meet the objectives was to construct a retaining wall. Mr. Scanzani said the only objective that would meet the requirements of the original plan that was signed, that the Board decided on, would be a retaining wall. Mr.,. McNamara said he would be open, but would need to be convinced. He also noted that the applicant would be coming back at their own risk. Mr. Yarmo said he would also be open to suggestions, but would need to be convinced that the final product would be better, from an environmental standpoint for protecting the wetlands. Mr. Brouillet said there were other methods that would meet the encroachment and erosion control requirements.

Ms. Bousa asked if the 10ft. bypass shoulder was built. Mr. Brouillet said he would check.

The plan was date specified to the May 3, 2004 meeting.

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

Due to the meeting running late, the plan was date specified to the May 3, 2004 meeting.

Map 39 Lot 6-179 – 128 Realty Corporation – Mammoth Road – Proposed 9-Lot Subdivision and Seeking Special Permit for Wetland Crossing for continued consideration

Due to the meeting running late, the plan was date specified to the May 3, 2004 meeting.

Map 29 Lot 7-41 – David Bibeau – 36 Atwood Road – Site Plan Application to construct a 30x40 garage within the Wetland Conservation District adjacent to a Prime Wetland

Due to the meeting running late, the plan was date specified to the May 3, 2004 meeting.

Map 1 Lot 5-104, 113,115 – Sousa Realty & Development – Lawrence Corner – Proposed 20-Lot Subdivision – Court Ordered Remand

Per the applicant’s request (see above for discussion) the case was date specified to April 19, 2004.

MINUTES

March 15, 2004

MOTION:

(Scanzani/Ouellette) To approve the March 15, 2004 meeting minutes as amended.

VOTE:

(3-0-2) The motion carried. Ms. Bousa and Mr. Yarmo abstained.

DATE SPECIFIED CASES

April 19, 2004

Map 1 Lot 5-104, 113,115 – Sousa Realty & Development – Lawrence Corner – Proposed 20-Lot Subdivision – Court Ordered Remand (to be placed first on the agenda)

Map 24 Lot 12-44-9, 14 – DHB Home Builders, Inc. – Mulberry Estates Phase II – Well Radius Waiver Request

May 3, 2004

Map 20 Lot 3-130-4 – A.G.A.N. Realty Corp. – Bear Hill Road – 2-Lot Subdivision for consideration

Map 41 Lot 10-310 – Cerullo – Route 38 – Modification to Approved Site Plan

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

Map 39 Lot 6-179 – 128 Realty Corporation – Mammoth Road – Proposed 9-Lot Subdivision and Seeking Special Permit for Wetland Crossing for continued consideration

Map 29 Lot 7-41 – David Bibeau – 36 Atwood Road – Site Plan Application to construct a 30x40 garage within the Wetland Conservation District adjacent to a Prime Wetland

SITE WALK

April 17, 2004, 8am - Map 20 Lot 3-130-4 – A.G.A.N. Realty Corp. – Bear Hill Road – 2-Lot Subdivision

MISCELLANEOUS DISCUSSION

Mr. D’Andrea informed that Thursday, 8am, DES would be meeting at the Cara Estates subdivision.

Mr. Scanzani discussed the fact that the electric company was notifying communities per state statute that herbicides would be used along the power lines for defoliation. He said that Pelham had been notified that the herbicide would be used to clear the brush under the power lines and questioned if there was an alternative to using the herbicide. Safety is a concern for things such as wetlands, wildlife, water supply and drinking water. After a brief discussion, it was decided that Mr. Scanzani would draft a letter for Mr. Culbert to sign that would be forwarded to the Board of Health and Selectmen outlining the concerns and requesting investigation of rights regarding alternate ways of clearing brush.

REQUEST FOR NON-PUBLIC SESSION

MOTION:

(Scanzani/Ouellette) Request for a non-public session per RSA 91-A:3,II, e (Legal)

ROLL CALL:

Mr. McNamara-Yes; Mr. Scanzani-Yes; Ms. Ouellette-Yes; Ms. Bousa-Yes; Mr. Yarmo-Yes

Mr. McNamara noted that the Board would not take any other action publicly; the minutes of the non-public session would be sealed at the conclusion of the non-public session.

ADJOURNMENT

MOTION:

(Yarmo/Scanzani) To adjourn the meeting.

VOTE:

(5-0-0) The motion carried.

The public meeting was adjourned at approximately 11:00pm.

The Board entered into non-public session at approximately 11:00pm. Also present was Mr. D’Andrea.

Respectfully submitted,

Charity A. L. Willis

Recording Secretary