Editor's Note: These are the draft minutes of last week's Planning Board meeting. While quite lengthy, they contain important reporting for the town including discussion of the D&D subdivision activity reported here and in the Eagle times last week. CCB
Town of Walpole, NH 03608
PLANNING BOARD MEETING December 11, 2007 at 7:30pm Town Hall
MINUTES
Presiding: Jeff Miller, Ch.
Members Present: Dave DeCoste, Eric Merklein, Bob Miller, V-Ch., Charles Miller, BOS, Henry Fletcher, Ben Daviss, Fred Dill, alt.
Members Absent: Shane O’Keefe, alt., Jeff White, alt.
Recording: Pamela Aslinger, Sec./alt.
These minutes are unapproved and will be reviewed at the January 8, 2008 meeting for errors, omissions and corrections. There were 15 persons in the audience.
I. Meeting opened at 7:30pm
A. All regular members were present, no alternates designated.
B. Minutes were passed over until the January meeting.
II. Review applications submitted:
A. Jack Franks and Lisa Bierweiler - Minor 2 lot Subdivision located on Ramsay Hill Rd. Map 8 Lot 86 in the Rur. Ag. zone. Creating Lot 1 (86) of 9.40 acres with existing house and Lot 2 (86-1) of 1.62 acres. The application was delayed from 11/11/07 meeting because of two changes 1) Lot 2 is no longer non-buildable and 2) it requires State subdivision approval. Both lots meet frontage, setbacks and lot sizes.
Elizabeth Foote from Lawrence Associates presented the application describing it as above. Sec. Aslinger reported all fees and application materials had been received, reminding the application was re-noticed because of the above two changes. The application was complete. A motion to accept the application as complete was made by Ben Daviss and seconded by Eric Merklien. Motion carried unanimously in favor.
III. Ch. Miller closed the meeting and opened the public hearing at 7:35pm.
Ms. Foote stated they have filed an application for State subdivision approval and it has been granted, however the State’s computers are down so they were not able to obtain a copy for tonight. She will forward a copy as soon as it is available. It has been approved.
Ch. Miller called for comments - Mary Lou Montgomery and her husband commented they are abutters in favor of the proposal and they have spoken with Mr. Franks about his proposal. Being no further comments Ch. Miller closed the public hearing at 7:40 and reopened the meeting.
IV. Ch. Miller called for board action on the proposal. A motion to approve the application as presented was made by Eric Merklein and seconded by Ben Daviss . The motion carried unanimously in favor. The maps and mylar were signed, Ms. Foote agreed to record the mylar at the registry and report the information to Sec. Aslinger.
II. B. Dennis and Patricia Beaudoin/Barden Holdings, LLC - Two (2) Lot Line Adjustments located on Barnett Hill and March Hill Rds. Map 9 Lots 52, 54, 42 in the Rur. Ag. zone. LLA 1’s purpose is to remove 4.33 acres from Barden Holdings Lot 42 by moving the rear boundary line of Lots 52, 54 owned by the Beaudoin’s resulting in Lot 42 of 17.25 acres. LLA 2’s purpose is to move the center line between Lot 52 and 54 both owned by Beaudoins’ re-creating Lot 52 of 1.58 acres and Lot 54 of 21.60 acres including the annexed 4.33 acres and the existing house and outbuildings. All re-adjusted lots meet frontage, setbacks and lot sizes. Lot 52 requires State Subdivision approval.
Joe DiBernardo of DiBernardo Associates presented the application, describing it as above. Sec. Aslinger collected an additional $25.00 fee and corrected maps. She reported the application was in order, abutters notified and the hearing notice appeared as required.
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A motion to accept the application as complete was made and seconded, motion carried unanimously in favor.
III. Ch. Miller closed the meeting and opened the public hearing at 7:45pm.
Ch. Miller called for comments or questions, being none, closed the public hearing at 7:48pm and re-opened the meeting.
IV. Ch. Miller called for board action. Members looked over the plans noting the plan was reviewed at the prior meeting as a preliminary review. At the preliminary it appeared the application would need a voluntary merger, lot line adjustment and subdivision, however it was determined it qualified for a more simple approach under 2 lot line adjustments. Mr. DiBernardo pointed out the back line between Barden Holdings and the Beaudoin’s would now follow a
stonewall and allow the Beaudoin’s more room for their horses. He said they have a letter from Barden Holdings allowing and agreeing to the lot line adjustment. A motion to approve the plan as presented was made by Mr. Daviss and seconded by Mr. Merklein. Motion carried unanimously in favor. Maps and mylar were signed, Mr. DiBernardo agreed to record the mylar once State subdivision approval is obtained. They have made an application for it. Sec. Aslinger asked to have a copy of the approval sent to the Board as proof.
V. Ch. Miller closed the meeting and opened the public hearing on six (6) proposed amendments to the Zoning Ordinance for 2008 Town Vote. Please refer to the hearing notice for exact wording, attached to minutes.
1. Home Business in Rural Ag. District: Ch. Miller asked Ch. Mansouri of the Zoning Board to present the amendment since the Zoning board requested it. Ch. Mansouri asked Lucy Weber, outgoing longtime zoning board member to make the presentation. Ms. Weber stated the purpose of the amendment is to add the existing wording and allowed home business use in the Rural Agricultural district because at present a variance is required to have a home business in the Rural Ag. district. She said there have been more and more persons seeking a variance for their home businesses. She said it is expensive and time consuming and most importantly the zoning board has had a difficult time meeting the hardship rule for a variance. The Board felt it was time to enact the language and use already allowed in the Residential and Commercial districts by allowing home businesses in the Rural Ag. district. She said there is no special exception allowing home businesses you must apply for a variane. She gave examples of computerized businesses and internet businesses currently operating that may technically be violating the zoning ordinance without this amendment. She said it was agreed to by the entire zoning board and they hoped the planning board and Town voters will support it.
Ch. Miller called for other questions or comments. He referred to the zoning ordinance thinking home businesses were allowed by special exception. Ms. Weber said home businesses are not the same as commercial operations. Mr. Miller sited a saw sharpening business as a commercial type home business. Ms. Weber sited a day care and an internet auto sales business, all businesses that require a state license must have zoning approval. If they are in a Rural Ag. district they cannot get zoning approval except by seeking a variance.
Ch. Miller said he thought in the past all businesses whether home or commercial were reviewed under the special exception requirement. Ms. Weber and others disagreed saying most home businesses are operating in the Rural Ag. district without any approvals, only those needing a license from the State. Ch. Miller thought any business is considered a commercial operation especially if they grow beyond the number of employees allowed. Ms. Weber stated there are clear differences in the ordinance between the definitions of home businesses although somewhat outdated such as “dress making” and commercial operations. The zoning board is only concerned with the very small-defined home businesses; all other larger operations would fall under the commercial category and be reviewed by special exception. Ms. Weber said if there are retail customers it is seen as a defining factor to determine a commercial operation vs. a home business. She said a person using their home to purchase and sell over the internet, getting inventory that it
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sent directly to a customer’s house would be considered a home business, saying no special exception would be required. She said they normally see those types of businesses only when the business requires a state permit. She said the ZBA does not see where it would be more burdensome having a home business in the Rural Ag. district than in the Residential or Commercial district. She said density in the Rural Ag. district was much less than in the Residential district where nuisances might be a problem.
Mr. Bob Miller asked where the protection was for the homeowner in the Rural Ag. district from small businesses? Ms. Weber said the same protections are in place as in the Residential districts. She said all they are trying to do is to allow persons with homes in the Rural Ag. district the same ability to have defined home businesses within their homes as those who live in the Residential and Commercial districts. She said she did not see where it was fair to restrict persons living in the Rural Ag. district from similar uses allowed in the Residential district.
Mr. DeCoste asked if the wording was exact, Ch. Miller confirmed by reading from the ordinance. Ms. Aslinger noted the ordinance clearly defines the difference between a home business and commercial, manufacturing or industrial operation, providing the protection Mr. Bob Miller referred to. Ch. Miller questioned whether the use of a barn on the same property would qualify as a home business giving an example of a business on Maplewood Ave. auto mechanic business that was disturbing the neighbors. He thought all businesses were reviewed under the special exception criteria. Ms. Weber said the only circumstance she remembered recently that was outside of the home was a person who owned a vineyard requesting permission to operate a stand out of her barn. No permit was required because it fell under the allowed use in the Rural Ag. district for a farm stand.
Ch. Mansouri noted the business Ch. Miller referred to on Maplewood Ave. was not in the Residential zone but within the 250 ft. Commercial zone and the neighbors objected because there were so many residences around it. She said gas stations are only allowed in the Commercial district.
Ch. Miller called for further questions and comments, being none closed the hearing on amendment #1 and opened the hearing on #2:
2. Special Exception for Removal of Sand and Gravel - Ch. Miller asked the ZBA to present the amendment. Ch. Mansouri said their Attorney felt it was inherent within the Zoning Ordinance to require a special exception review on sand and gravel excavation permit. In order to firm it up so it was not overlooked they felt it was important to include the wording in the ordinance. Ms. Weber added a comment on the exact wording suggesting a clarification of the last sentence to read: “Any excavations as described above are to be considered an industrial manufacturing and commercial operation and shall be subject to a special exception review as outlined in Article VIII Rural Agricultural District C. Special Exceptions and may be subject to a Site Plan Review by the Planning Board.” Ch. Miller and others agreed with the change noting it was a textual change not requiring an additional public hearing.
Mr. Dill asked if a farmer wanted to dig a manure pit, where would that fall under this amendment. Ms. Aslinger said it would not be considered a commercial use as the amendment states. Ms. Weber said they discussed this kind of issue at the recent Gravel Excavations workshop. The instructor gave an example of a person who builds a large house and moves an enormous amount of earth around it and re-smoothing it. It would not be considered a commercial but private use unless they were to sell it. Mr. Dill said in Keene there was a large factory addition built creating several thousand yards of topsoil they could not use, so sold it, would they need a permit under this? Ms. Weber said once it is sold off then it is a commercial use, according to the instructor, there are time limits on permits and size limits to determine whether projects are considered commercial vs. private.
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Ch. Miller called for additional comments, there were no further comments. Sec. Aslinger reminded that the minor wording changes were considered only textual and editorial modifications not requiring an additional hearing. Ch. Miller closed the hearing on #2 and opened the hearing on #3:
3. Reference Well Source Protection Ordinance to Zoning Ordinance. Ch. Miller asked Sec. Aslinger to comment on this amendment. Ms. Aslinger said she is proposing this as a housekeeping measure. It’s purpose is to direct a developer when reading through the Zoning ordinance to the Well Source Protection Ordinance so it is not overlooked. The amendment links the Well Source Protection Ordinance to the Zoning Ordinance in the same way as proposed amendments 4. and 5. will for the Telecommunications Ordinance and Retirement Overlay District. She said the wording used is in keeping with other wording in the ordinance for clarity.
Ch. Miller called for comments, being none closed the hearing on #3 and opened the hearing on #4:
4. Reference Telecommunications Facilities Ordinance to Zoning Ordinance. Ch. Miller asked Sec. Aslinger to comment on this amendment. Ms. Aslinger said this amendment is a housekeeping measure similar to #4 by linking the Telecommunication Ordinance to the Zoning Ordinance so it is not overlooked.
Ch. Miller called for comments, being none closed the hearing on #4 and opened the hearing on #5:
5. Reference Retirement Community Overlay District to Zoning Ordinance. Ch. Miller asked Sec. Aslinger to comment on this amendment. Ms. Aslinger said it was another housekeeping measure. When reading through the Zoning ordinance under Residential B, it will refer to the Retirement Community Overlay District directing a developer to existing Article IX - Retirement Community Overlay District. She noted presently the Retirement District is within the Ordinance but out of sequence so it may be overlooked. The amendment simply makes an earlier sequential reference to it and reminds that the Retirement District Overlay is an allowed use in the Residential B and Commercial zones.
Ch. Miller called for comments, being none closed the hearing on #5 and opened the hearing on #6
6. Establish a review procedure in Well Source Protection Ordinance. Ch. Miller asked Sec. Aslinger to comment on this amendment. Ms. Aslinger said she was asked recently by a potential applicant, (Chamberlain Machine) how to apply for a conditional use permit under the Well Source Protection Ordinance. When she referred to the ordinance a procedure was missing. She then referred to the State RSA 676:4 Boards Procedures on Plats and the Telecommunications Facility Ordinance also requiring a conditional use permit for examples and suggestions. She used the wording in the Telecommunications Facility Ordinance to establish a procedure based on State RSA 676:4 that basically requires the conditional use permit be granted through the Site Plan Review process.
Selectman Miller asked about the specific application referred to in the amendment. It was explained the application would be filed under the Site Plan Review procedures already established.
Sec. Aslinger stated when she posted the Public Hearing notice she also posted a copy of the Zoning Ordinance and Well Source Protection Ordinance so persons could refer to the existing language and proposed amendments. She noted the postings would remain in place until the Town vote.
Ch. Miller called for comments, being none closed the hearing on #6 and re-opened the meeting.
VI. Action on Amendments: Approve-Disapprove - Edit, hold a second hearing. Ch. Miller called for further discussion and/or Board action to recommend or not recommend the 6 proposed amendments either individually or as a group.
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Ben Daviss moved to recommend approval of all six amendments with the minor textual changes in amendment 2 as presented, for a vote of the Town at the March 2008 Town meeting. Motion was seconded. Motion carried unanimously.
Ms. Weber asked to have the wording change in #2 clarified. Sec. Aslinger read the changes as discussed.
VII. Old Business
A. Walpole D & D: Mr. Dill was asked to comment.
Mr. Dill said they are working with the State for subdivision approval. He asked the Board to define exactly what was needed on the Storm Water Drainage Plan questioning the need for it since there are no new culverts or water collection. He thought the request came about from the Hydrologist study regarding part of their mapping for water reclamation.
Ch. Miller thought the road plan would include a drainage plan showing culverts and ditches satisfactory to move the water through the subdivision. Ch. Miller asked about another similar condition. Mr. Dill read condition #3. “Approval of submitted plans to increase recharge, conservation and water recapture drainage as recommended in the Weston Sampson report and criteria.” Mr. Dill said they were intending to put in deed restrictions covering the Weston Sampson recommendation but was concerned after the recent road situation, he wanted to make certain he understood what the Board was looking for. Ch. Miller and Mr. Merklein agreed the drainage plan applied to the road construction and drainage resulting from it.
Mr. Dill said when they discussed the road with Mr. Terrell they agreed to what Mr. Terrell required. Ch. Miller said it needed to be on a plan for the Board to review.
Sec. Aslinger stated condition #3 resulted from a requirement in the Subdivision Regulations under General Requirements Section 4. Mr. Dill thought it only applies when putting in a new road not upgrading an existing road and is not applicable.
Ch. Miller and Ms. Aslinger disagreed with Mr. Dill saying it is applicable. Ms. Aslinger read the requirement: “K. An adequate surface stormwater drainage system for the entire subdivision area shall be provided. Storm drainage shall be carried to the existing water courses or connect to existing storm drains. If the stormwater drainage system creates any additional flow over any adjacent property the subdivider shall obtain an easement therefor from the adjacent property owner and shall hold the Town of Walpole harmless from any claims from damages resulting there from.” She said she remembered that an abutter Susan Steisel was concerned and suffered damages on her property from the runoff from D & D’s property. Mr. Dill corrected saying she was complaining about water coming down from Wentworth Road.
Ch. Miller said he thought the road improvements would need to be part of the stormwater drainage plan including any new or existing culverts showing how stormwater would be handled. He thought it could be minor information but the Board would need the plan. Mr. Dill said he had spoken with Mr. Terrell about what he needed for the road upgrade, he had signed it and they did what he wanted. He asked what more the Board wanted. Ch. Miller said the procedure would be to have and see a plan so it can be checked off as a met condition for approval. He said if there are questions about the road, without a plan the Board cannot act. He said he thought each condition would be met one by one, the final plat could be signed off and then work could begin. He said he objected when he saw the road being worked on without the conditions being met. He said even though he thought they (Mr. Dill and Daniels) were doing everything on the up and up, it still needed to pass through the Board’s normal procedures.
Mr. Warren Stevens, engineer for Mr. Dill and Mr. Daniels was present and spoke with some concern over the stormwater plan uncertain as to what was required. He referred to a copy of the subdivision plan and said nothing was changing from what existed. Ch. Miller said a separate stormwater and road plan was required and neither had been presented. Mr. Stevens
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pointed to the subdivision plan verbalizing where some of the existing waterways, culverts and wetlands are located. Ch. Miller said he simply wanted a road design including the stormwater drainage information as the condition of the approval requested. He said if they don’t want to provide the information as requested on the subdivision approval and go through the Board, the Board does not have to sign the subdivision plans.
Mr. Stevens offered in order to have something, would a letter do? Ch. Miller said a plan was requested. Mr. Stevens said no drainage was being changed. Mr. Miller said the road upgrade would create some changes and they need to be part of the plan. Mr. Dill said he thought he had submitted to Sec. Aslinger, a signed written verbal agreement of what he and Mr. Terrell had agree to thinking it was sufficient to meet the condition. Sec. Aslinger said she had not received anything from he or Mr. Terrell. Mr. Stevens said they were not changing any drainage. Ch. Miller said nothing formal had been received by the Board on meeting the conditions; there has not been any communication on how the conditions are being met.
Mr. Dill said they went with Mr. Terrell about marking and cutting down 13 trees, he mentioned this at one of the meetings thinking if anyone is interested they would go take a look. Ch. Miller said there were no plans submitted. Mr. Dill said he was not certain as to where the signed agreement with Mr. Terrell was. Sec. Aslinger asked Mr. Stevens if he could do an overlay of the existing drainage on the subdivision plans in order to meet the condition? Mr. Stevens pointed out where some of the wetlands, waterways and drainage exist noting during heavy rains where the water runs off on the 13 acre parcel. Sec. Aslinger said if a plan could be submitted showing an adequate surface stormwater drainage system and if it is existing and working as she read the regulation requirement K. the condition could be met. Ch. Miller agreed saying along with a copy of the road plan and deed restrictions those conditions would be met.
Sec. Aslinger recapping the conditions asked about the status of the State Subdivision approval.(condition 5.) Mr. Dill said they submitted it to the State and it was returned for more information. They (State) want to see the plots where all the septic designs are located. He said the State had not actually had an instance like this one so wanted to see exactly where the flags are located. He said they are working on obtaining the approval.
Sec. Aslinger continued noting that the collection of fees (condition 4.) has been met. She asked about (condition 3.) “Approval of submitted plans to increase recharge, conservations and water recapture drainage as recommended in the Weston Sampson report and criteria” and also to include the deed restrictions. She said (condition 2) the stormwater drainage plan had been discussed and could now be created.
Finally (condition 1) “Road specifications, submit a plan approved by the road agent as previously agreed to, post a performance bond based on the road agents specifications, to insure completion and compliance with the Town’s standards for a Class V road. Road must be completed before the first building permit is issued as a timeline guide.” She said if Jim (Mr. Terrell road agent) has something on paper, a plan to go by it could be submitted to meet the condition. Mr. Dill said he was not certain what happened to the agreement but he will check to see where it might be, still thinking he had submitted it to Sec. Aslinger.
Sec. Aslinger asked if the Board would like her to send a letter to Mr. Dill and Mr. Daniels reiterating what the Board requires for them to meet the conditions point by point? She asked Mr. Dill about the status of the performance bond and the issue with the Selectmen waiving it. Mr. Dill said Mr. Daniels along with his agreement went to the Board of Selectmen and asked whether or not they needed to provide it. He said he thought there was an understanding that D & D would have the work done, the Town would submit their bill and D& D would pay the Town. They had the work done; the bill has been paid so he thought it was unnecessary to have a performance bond especially since they used a local very reputable company.
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Ch. Miller asked if the road was complete? Mr. Dill said yes, it was complete except for Mr. Terrell’s inspection to be done in the Spring once it is scraped and re-rolled. He said the specs have been met as far as digging it out, laying down the fabric and putting 6 inches of crushed stone on top of it. Taking the trees down and drainage has been done. Mr. Terrell has one other thing to look at during the winter, but the road is complete and paid for. Mr. Merklein asked if the Board was supposed to look over the construction before it was done? Chairman Miller said yes, they were supposed to submit a plan. Mr. Dill said he thought the Board would be better off by looking at an actual completed road based on what the Road agent recommended rather than a paper plan that might be harder to understand. He said he thought they were sticking their necks out by having the road done and having the Board look at it after it was done.
Ch. Miller said the reason for a performance bond is to insure what is proposed to be done, is done. The bond isn’t released until the work is complete and inspected to insure the work is done. Ch. Miller thought there was still work to be done. He thought work stopped when he spoke with Mr. Daniels that day. Mr. Dill said when Mr. Daniels called Mr. Hodgkins to stop the work, they had already completed the work and would not be returning until Spring. Ch. Miller said he would like to see the plan from Mr. Terrell and be given assurance from Mr. Terrell that everything is to his satisfaction and also after he has his final inspection in the Spring. Mr. Dill said Mr. Terrell was present before and 3 or 4 times during and after the road construction. Mr. Terrell is waiting to finalize the road design regarding the curve area. Ch. Miller asked to have Mr. Terrell put his findings in writing for the Board.
Sec. Aslinger commented that since the Board voted to approve the plan with the specific conditions she thought D & D should submit a written request for waiver of the performance bond based on the events, so the Board can follow their correct procedures. The Board can vote on the request for waiver.
Selectman Miller said he did not see where the Board of Selectmen could tell the Planning Board where to jump. Mr. Dill agreed but thought because the BOS were in charge of financing for the Town, not that they were trying to by-pass the Planning Board but the ultimate buck was going to the BOS if D & D didn’t pay for the road or didn’t do it according to the specifications. They would be in trouble with the BOS, so they decided to go directly to them. Ch. Miller said he has a differing opinion. Sec. Aslinger said the regulations require that the Planning Board ask the Selectmen to determine the amount of a performance bond but the Planning Board is in charge of actual bond. In order to cover the Board’s procedures and the regulations she asked Mr. Dill to submit a request for waiver of the condition requiring a performance bond. Mr. Dill said he would, but he was concerned about why they were being required to post a bond when there is nothing in the regulations requiring a developer to rebuild a Class V road.
Ch. Miller said the condition of the road was not up to the standard for the type of proposal they submitted, so the re-building was to upgrade the condition of the road to meet the amount of development they proposed since D & D would be benefiting from it that the Town should not bear the cost. He said it has been done in other parts of the State and often. He thought it was appropriate. Mr. Dill said they agreed to do it but he did not agree the bond was necessary.
Ch. Miller said the bottom line was there were conditions placed on the approval and the conditions were gone around. It was clearly stated by a letter to them outlining the conditions and how they were to be met. Instead he heard Mr. Daniels had gone to the Selectmen to talk his way out of posting the bond and then when he drove by the road and saw the construction without any communication to the Planning Board about how the road was to be designed or constructed it raised serious concerns. He said the Board is setting precedents about how to deal with other developers. He said the Sand Hill subdivision was similar; Mr. Daniels knew the procedures and posted a bond when the road was built. He chose not to go through the proper procedures.
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He said the outcome may be the same whether the correct procedures are followed or not, but it is very important that conditions are met to answer the concerns of the abutters and public. He does not agree with how the Selectmen handled the performance bond issue but it needs to be clarified.
Mr. Merklein asked if the road bill had been paid all the way through to completion even in regards to the Spring work that remains? Mr. Dill said yes but Mr. Terrel will still need to do a final inspection. Ch. Miller said as part of the letter to the Board from Mr. Terrell it should include “pending final inspection”.
Mr. Dill said they’ve done a lot of business with Hodgkin’s on a handshake but if something is not done it is he and Mr. Daniel’s responsibility to take care of it and they will.
Ch. Miller ended saying the outcome of the approval will be the same but measures to meet the conditions will be met.
VIII. New Business
A. Chamberlain Machine - Sec. Aslinger announced Chamberlain Machine was not ready to appear before the board but asked to be added to the January agenda.
B. Other - E. Merklein - Reconsideration of the open space zoning amendment. Mr. Merklein noted the Board had voted at the prior meeting not to place the 30% open space restriction in the Commercial district amendment on the ballot for 2008. He asked the Board to reconsider it due to the fact the proposed wording was instead added to the Site Plan Review regulations as a stop-gap measure but always intended for the Zoning Ordinance. He said Municipal attorney Kim Hollquist recommended the wording be placed in both places after a comprehensive review of where it belonged. While the wording is legally appropriate in either place his concern is having it waiveable in the Site Plan Review regulations. It is subject to who is elected to sit on the Board as to its enforcement based on a Board’s philosophy at any given time. By placing it in the Zoning Ordinance it can only be waived by variance. He strongly recommended the Board vote to place it on the ballot for a Town vote thereby giving the Townspeople a chance to preserve open space. He noted the language is similar to the amendment regarding multifamily housing requiring 30% open space that passed with a good majority. He said the Town has supported the protection of open space even with a protest petition requiring a 2/3rd’s vote. He is concerned about the validity of the wording in the Site Plan review after speaking with municipal lawyers, if taken to court it may be determined the wording is only valid as a zoning regulation. He said the amendment follows the spirit of the Master Plan which calls for 50% open space and it holds the corridor of Rte. 12 by lessening the density. He said if someone comes in and says they can only build if they have 20% open space they can go to the zoning board for a variance. He said it would have more teeth in the zoning ordinance and feels the Town would support it.
Ch. Miller asked how was it to be written and where would it appear in the ordinance. Sec. Aslinger reminded at the prior meeting she had proposed the location and actual wording but the Board voted not to present it, she could use the initial proposed language. It would be located in Commercial District E. Land Standards. She followed a recommendation of where to place it from the Municipal Association. The wording would match the exact language as shown in the Site Plan Review regulations. Ch. Miller was concerned about putting it in the Zoning ordinance because it might discourage desirable development. Mr. Merklein said they could seek a variance under an economic hardship. Sec. Aslinger said there was time to hold another Public hearing on Zoning amendments at the January 2008 meeting and she has the wording prepared.
Mr. DeCoste suggested adding it as “allowed by special exception”. However the nature of the wording and the fact that it is correctly placed as a land standard would make it only allowed by variance. Sec. Aslinger confirmed it was correct to call it a land standard based on the information in the RSA’s as to why it is an allowed restriction under Zoning and Site Plan. Mr. Merklein said his personal preference would be to see it as a restriction without any question,
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about what a developer can do up front. He said the Town supports open space protection rather than leaving it up to each individual case. Ch. Miller said he preferred it in the Site Plan Review so it could be applied on a case by case basis. He feels it is too restrictive and burdensome as a Zoning regulation but offers flexibility in the Site Plan Review regulations. He doesn’t agree that the Board’s philosophy should be a determining reason to make things more restrictive based on personalities. Mr. Merklein disagreed saying if it were to be challenged in court it has more teeth as a Zoning regulation. Ch. Miller disagreed saying it was more appropriate as a Site Plan Review regulation and far too restrictive in the Zoning Ordinance.
Sec. Aslinger said while she wasn’t a proponent of the amendment and is in the middle on the issue, there are many Town’s that have lot coverage restrictions, it is very common and good planning.
Ch. Mansouri of the Zoning Board commented creating an amendment or restriction based on the fact it can be granted a variance sends the wrong message. Variances are to be given only in very special circumstances and have difficult criteria to meet.
Eric Merklein said as far as the personality of a Board, it does matter reminding Ch. Miller’s own input about tree planting at the shopping center. He was the only person sitting on the Planning Board requesting trees be planted. Personalities makes a difference also on whether something is brought to the entire Town for a vote.
Mr. DeCoste asked why was it any different than restricting multifamily to 30% in the commercial district? Ms. Aslinger said it was very much related to the 30% multi-family open space amendment. She cautioned there is a fear of putting open space restrictions in the ordinance because it is a deterrent to developers. Instead of sending the wrong message we should promote how we want our commercial development to look by providing some open space, not pave a piece of property from one edge to the other. Mr. Dill thought the message was loud and clear, that Walpole does not want development. Ms. Aslinger thought some restrictions would create good development and noted the Municipal Association lawyer recommended it be placed in the Zoning ordinance as soon as possible.
Mr. Daviss added support to Mr. Merklein’s proposed amendment by saying the results of the survey indicate that people in Town want industrial and commercial uses but they put them as a subordinate issue to protection of the land and land related values. He thought based on the survey results the Town would support the restriction in the Zoning Ordinance. He thought the will of the Town would prevail. Ch. Miller said he disagreed and called for Board action. Mr. Davis moved to hold a public hearing on the amendment to place a restriction on Lot Standards in the Commercial District. Seconded by Mr. Merklein. Motion passed with one vote not in favor.
C. Other - Ms. Aslinger brought an issue for discussion and possible zoning amendment on Lot Standards for the Industrial zone. Ms. Aslinger gave the members a memo with the question: “ Is it true the Industrial District lacks lot standards and why?” She said the issue came up resulting from the proposal to change the Hubbard property by petition from Rural Ag. to Industrial. She said after reading through the ordinance she discovered all of the Industrial District boundaries include only occupied and existing enterprises, so there are no lot standards needed. What exists constitutes the lot standards. Charles Miller said the ordinance was designed that way. Further if an industrial proposal is allowed by special exception in the Rural Ag or Commercial districts they would fall under those districts standards and once a proposal is established it should be added to the industrial district boundaries.
However the ordinance does not provide lot standards for new unoccupied bare land industrial districts. In the case of the 2007 petition to change the Hubbard property to Industrial - if it had passed the zoning ordinance would have been seriously compromised, since the intent of the ordinance is to limit the industrial district to the occupied and existing sites. The Board
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unwittingly recommended the petition without considering the lack of lot standards or intent of the ordinance. She suggests until the Board has a chance to review and finalize the Land Use section of the Master Plan should there be any attempt by a developer to petition the Town to changes a zone to industrial it must be refused based on the fact it is not in the spirit of the ordinance. The Board may recommend new industrial boundaries once it has a chance to implement the updated Master Plan.
Finally while an industrial proposal allowed by special exception must meet the lot standard and use restrictions in either the Commercial or Rural Ag. district they are not under any building size limitation. Both districts address only “retail” building size limitations. She said if the Board considers whether building size limitations are needed for industrial, manufacturing of non-retail commercial operations she suggested amending the Industrial district and Rural Ag. districts by adding: “No industrial, manufacturing or non-retail commercial building shall be permitted which exceeds 55, 000 sq. feet in gross floor area.” She said the 55,000 sq. feet is an arbitrary figure and the Board may not want to address it now but she thought it was food for thought and worth considering.
Mr. Dill thought developers already have too many hoops to get through, did we need more restrictions, it can’t be done without a Town vote, was it necessary? Ms. Aslinger said having not lived in the Town when the building size limitation was passed she wondered if it was the intent of the Town to limit all building sizes? Ch. Miller said the reasoning behind the retail building size was to only limit big box stores such as Walmart. Ms. Aslinger asked if he thought the Town had changed since then and might want to see all buildings on a smaller scale especially since building size had appeared on the ballot a few more times. He agreed somewhat, but thought the 55K was arbitrary and preferred looking at each proposal on its own individual basis rather than being so restrictive, it could limit some potentially good development. Mr. Daviss asked if a 250,000 sq. foot building be acceptable? Ch. Miller said it may seem huge but there could be limitations other than building size that would make a project unfeasible such as a huge scale pulp mill, the size of the building is inconsequential. Mr. Daviss asked if Ms. Aslinger would like to propose the building size limits as an amendment for 2008. She said not necessarily but thought it was a possible future consideration and needed further discussion especially regarding the 55K figure. She thought during the Master Plan update it might become a viable concept.
Mr. Dill asked if we didn’t already have enough restrictions due to the limited amount of land available for such uses? She agreed about the limited amount of land. Mr. Bob Miller was concerned about the 55K figure. Mr. Dill said there are too many restrictions making it too difficult to do anything industrial manufacturing or commercial in Walpole, there are too many approvals to do. He said not to assume everything that comes into the Town for development isn’t good and to try and stop everything. Ms. Aslinger, Mr. Daviss and Mr. Merklein said stopping development is not what they favor, but planned development according to the regulations and ordinance that is in place. Mr. Dill said we should stop trying to come up with ways to further discourage development. Ch. Miller said the issue could be considered in the future and moved on to:
IX. Communications and Miscellaneous
A. Master Plan Survey Preliminary results of tally, drawing of gift certificate.
Mr. Daviss handed out a preliminary tally of the survey results for members to review. About 20% were returned, and he asked if he could submit a copy of the results to Chuck Bingaman for posting on the Walpolean website. Permission was granted. Mr. Dill said he did not receive a survey form and was disappointed wondering how they were mailed. They were mailed to all PO Boxes and Rural routes. He was given a blank form.
Walpole Planning Board Minutes 12/11/07 page 11
Drawing: Charles Miller selected the winner: Ms. Elizabeth Chickering won the $75.00 Burdick’s gift certificate.
C. Other - Mr. Merklein provided the Board some information on permeable surfaces. He had audio copies of the show on NPR describing the concept. It is also a natural way to save water. Charles Miller asked how well it holds up, Mr. Merklein said it was effective, a bit more costly but attractive for Towns and developlers.
B. Work Session cancelled for December, but items will be added to the January agenda. Sec. Aslinger reminded if any member needs a copy of the Well source Protection Ordinance she would send them out prior to the next meeting.
C. Hand out -Available housing grants from OEP workshop.
D. Budget - Fred Dill asked where the Board stands on the budget, he asked if the fees were covering the expenses and whether the Board was requesting more money this year than last. Answer was no fee increases for 2008, the Board is breaking even on what it takes in fees and expenses.
E. Consideration of re-submitting 2007 amendment regarding building vs. establishment. The zoning amendment from 2007 is being challenged in court with the outcome pending after the timeframe for re-submitting it if the case should fail, the question was whether the Board wanted to go through the process of re-submitting it for 2008. Members agreed to await the result of the court case. Ch. Miller did not recommend re-proposing. E. Merklein felt the Board’s resolution confirming establishment meant building was adequate. Mr. Daviss did not agree with re-proposing due to the number of amendments already being proposed that may confuse voters. Sec. Aslinger said legal counsel did recommend re-proposing it just in case, but she thought the original wording and resolution were adequate. She noted the likelihood of being challenged regardless of how it is worded is a strong possibility in the future. She said she had every indication the court case would be supportive of the way the amendment was presented to the voters when speaking with the Town’s legal counsel.
X. Meeting adjourned at 9:20pm
