2-15-06

Walpole Board to Consider Shopping Center Site Plan Application

By Charles C. Bingaman

            The Walpole Planning Board unanimously agreed Tuesday evening to accept as sufficiently complete a site plan application for a 68,000 square foot commercial building and related construction south of the current North Meadow Plaza and to ask the Southwest Regional Planning Commission to assist in analyzing it prior to deciding whether it complies with Walpole zoning and land use ordinances.

            The full team of Berkshire Development consultants laid out the proposed plan for the 9.3 acre site including a second, 1980 square foot restaurant or store building near the intersection of Upper Valley Road and Rt. 12, a parking lot for 370 cars, and new entrances from Rt. 12 opposite Diamond Pizza and from Upper Valley Road.  Berkshire Vice President Tim Traynor, the usual spokesman for the developer, was unavailable due to family emergency, and board chair Jeff Miller was away on business.  Vice chair Dave Edkins presided over the lengthy and contentious meeting.

            Other details disclosed by chief engineer Lawrence J. Wagner of Wagner Engineering, Portsmouth, were that no new traffic signals were included in the plan although it was designed for the possibility that the state would require them, that there was an easement for a future road link from the new parking lot to the North Meadow Plaza—but no actual road at this time, and that the parking lot would be lit by downward pointing lights on 30 foot poles.

            Wagner further explained that the proposal was for a large main building with a 40,000 square foot tenant and three other tenants using the remaining 28,000 square feet. He reported the “none of the uses are defined at this time”, “none of the signage is secured at this time until we know who the tenants are but there is a sign pylon in the drawings” and “nothing in the design is firmly in place as it is schematic only.”  Wagner also described a full landscaping package including trees, bushes and shrubs surrounding the parking lot and buildings and interspersed in the parking lot.  Finally, he noted that the developer would be recommending one or more stop signs at the current intersection of Walpole Valley Road and Rt. 123, currently in partial use because of the Rt. 123 bridge destruction.

            Acting chair Edkins, while noting that the Berkshire application (actually filed in the name of the owners, Walpole Properties LLC) was “probably the most complete this board has ever seen”, suggested that the board refer it to the Southwest Regional Planning Commission for analysis and comment.  Alternate board member Fred Dill, sitting for a missing member, noted that “it’s a big deal for this town” and moved acceptance of the proposal as complete so the board could begin its formal consideration.  Dill further moved that the proposal be referred to the Regional Planning Commission.

            Following acceptance of the proposal as complete, Edkins opened the floor for audience questions.  The first questioner asked how the developer could square the 68,000 square foot main building proposal with Walpole’s zoning ordinance provision that “a building may be erected” in the commercial zone with “Shops, restaurants and other retail establishments not exceeding 40,000 square feet in gross floor area.”  Edkins answered “it’s been the interpretation of this board that no individual establishment greater than 40,000 square feet is allowed but that there is no limit on the size of the permissible building.”

            Berkshire Development lawyer Thomas R. Hanna of Keene then noted that Berkshire “had paid tens of thousands of dollars for multiple consultants including engineers, surveyors, traffic experts, architects and legal counsel to create the site plan application and it has relied on my opinion that it complies with the zoning ordinance.” Further, he argued that the board’s acceptance of the application as complete was proof that it complied with the relevant ordinances.  Edkins, who minutes earlier had assured hesitant board members that they were only voting to accept the application as complete, said, “I wouldn’t take it that far! Compliance with zoning law is not implicit in accepting an application for review!”

            In other discussion, Robin Bousa, traffic engineer with the Watertown, MA engineering firm of Vanessa Hangen Brustlin, Inc., said that her studies showed that the new development, if built, would attract 250-300 additional vehicles per hour in peak hours along Rt. 12 but that whether stoplights would be required either at the current entrance into North Meadow Plaza or at the new entries to the proposed new parking lot was up to the New Hampshire Department of Transportation.

            Several audience and board members stressed how important it would be to have a direct vehicular link between the proposed new parking lot and the original stores in North Meadow Plaza.  Attorney Hanna explained that such links could only be built if the existing North Meadow Plaza store tenants agreed to them and that that had not been arranged at this time.  Hanna also said that, to his knowledge, Berkshire Development has not acquired property yet for the replacement ball field that it has promised. --30--

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CCB OPINION: Here is the full text of the relevant provision of Article VI Commercial District of our zoning ordinance. It is NOT a masterpiece of clear drafting but it IS what everyone must work with...

A. Preamble: The purpose for establishing a Commercial District is to provide within the Town ample area in which business and the sale of merchandise can be conducted with its inherent traffic, loading, parking, and activity normally unpleasant in close proximimty to restful and conmfortable residences.

B. Uses Permitted: A building may be erected, altered or used and a lot may be used or occupied only for the following purposes and inaccordance with the following provisions:...

    3. Shops, restaurants and other retail establishments not exceeding 40,000 square feet in gross floor area.
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Everyone should read those provisions very carefully, several times.  It seems to me that sub-section 3. must be read in the context of "a building" because it is a sub-section of B.  And, in order to argue that that building can be of any size so long as separate stores within it have no more than 40,000 square feet, you have to make two assumptions. First, you must assume that "gross floor area" really means "separate" or "individual" floor area and, second, the town's chosen policy with respect to size limits relates only to wholly owned stores such as Walmart or Best Buy and not to similarly sized commercial buildings that are internally segmented as Berkshire is proposing. Also you need to assume that the town really did not mean it in its master plan when it said that it did not want to become a regional shopping center.

In discussing this with Dave Edkins yesterday, he reiterated that in his and the Planning Board's opinion, the 40,000 square foot limit WAS intended only for the Walmart situation and not necessarily the current situation. Maybe he's correct on that.  But what we must make our decision on, it strikes me, is the text of our ordinance, not undocumented understandings that may be contrary to or require a tortuous interpretation of its language.

On the bright side, at least there is little traffic danger in the Berkshire proposal. Cars and trucks traveling under 10 miles per hour and stopping every few hundred feet seldom have violent collisions!