Present: Judith Carr (Town Council representative), Diane Hardy (Town Planner), Chester Jablonski, Rick McMenimen (Alternate), Janice Rosa, PeterRoy (Vice-Chairman), Adam Schroadter (Alternate), Val Shelton, George Willant
Absent: John Badger (Chairman)(excused)
Vice-Chairman Roy called the meeting to order at 7:03 p.m.
Pledge of Allegiance
Public Comments
Jean Chadbourn, of 22 Huckins Drive, explained the work that will be done to the playground at the School would affect her house. Vice-Chairman Roy explained this period is for general comments that are not related to agenda items. He noted that discussion would come up later in the meeting. Ms. Chadbourn would be welcome to make comments at that point.
Review and Approval of Minutes: 1/27/09, 2/17/09
January 27, 2009
Rick McMenimen noted when discussing the Historic District Ordinance, Dan Vincent has been called the Code Enforcement Officer and Building Official. He asked if there is a way to make the title consistent. Town Planner Diane Hardy explained Dan Vincent has many responsibilities in Town. She had gone through the draft ordinance and made consistent the use of the term “Building Official”, which is his official title. There are instances when Dan Vincent’s title changes, depending upon the discussion.
Vice-Chairman Roy appointed Rick McMenimen to sit in as a voting member in Chairman Badger’s absence.
Action
Motion: Rick McMenimen made a motion to approve the January 27, 2009 workshop minutes.
Seconded: Janice Rosa
Vote: In favor: Judith Carr, Chester Jablonski, Rick
McMenimen, Janice Rosa, Val Shelton
Opposed:
Abstained: Vice-Chairman Roy, George Willant
Vice-Chairman Roy and George Willant abstained from voting because they had not been present at the meeting.
February 17, 2009
George Willant noted he had only received these minutes tonight. Town Planner Diane Hardy noted the minutes had been sent to Board members on March 11, 2009.
Vice-Chairman Roy noted on page 2, line 19 “the” should be capitalized. On page 6, line 10, there should be a period after the word “researched.” Also on page 6, line 25, “that” should be inserted between “word” and “this.” On page 21, line 41, “issues” should be “issue.”
Action
Motion: Judith Carr made a motion to approve the minutes from the February 17, 2009 meeting.
Seconded: Janice Rosa
Vote: In favor: Judith Carr, Chester Jablonski, Rick
McMenimen, Janice Rosa, Vice-Chairman Roy,
Val Shelton
Opposed:
Abstained: George Willant
George Willant abstained from voting, because he had not had the opportunity to review the minutes.
Regular Business
Public hearing to amend Title III: Land Use Code and Regulations, Chapter VI: Zoning Ordinance, in accordance with RSA 675:6 and RSA 675:7. The proposed amendments are as follows:
Amend Section 1.11 Definitions by adding Historic District Commission, Historic District and Historic District Design Standards and Guidelines.
Add a new paragraph to Section 5: Overlay Zoning Districts titled Section 5.09 Historic Overlay District. The proposed language establishes the “Newmarket Industrial and Commercial Historic District” as a local historic overlay zoning district; creates a Historic District Commission to regulate construction and alterations to structures within said district through the issuance of Certifications of Approval; proposes Historic District Standards and Guidelines and procedures for the review of applications, appeals and enforcement pursuant to RSA 674:45-46, 48-49, 675:6, 676:17, and 677:17. The full text of the proposed zoning amendments is available in the Planning Office of the Newmarket Town Hall during normal business hours, and online at www.newmarketnh.gov.
Town Planner Diane Hardy noted a public hearing had been held on February 17, 2009. The Planning Board revised the ordinance based on input received. There had been a question about the Town’s authority under the RSAs; these references have been checked and language has been added to clarify that. Language has also been added to clarify historic design guidelines. The U.S. Secretary of Interior guidelines are to be used only on an interim basis until the Historic District Commission meets and develops its own guidelines. The guidelines provided in the last draft were not the most up-to-date guidelines; these guidelines have since been updated. It has been clarified these design guidelines are only for the exterior of buildings. A sunset clause has been added allowing the Historic District Commission one year to develop its own standards. There had been concerns about the membership of the Historic District Commission; the make- up of the Commission will now have two members at large. Clarification has been provided on exemptions for emergency repairs. An effective date has been added for July 1, 2009 to allow the Town to create an application system and for the Town Council to appoint the necessary members.
George Willant suggested allowing the Town Council to create the effective date, as the Town Council has final approval.
Chester Jablonski thought the Board had agreed on two members who reside or own residential property within the district. Town Planner Diane Hardy noted that had been a previous agreement, but after hearing from the public and some of the Board members, it was changed because there had been a feeling there would be too many people represented from historic district itself.
Vice-Chairman Roy opened the public hearing at 7:20 p. m.
Jennifer Jarvis, of 7 Raymond Lane and 164 Main Street, questioned the ability for the overlay district boundaries to be adjusted following enactment. She asked if a property owner could be asked to be removed from the district, and if so, what that process would be. Town Planner Diane Hardy noted that would be considered to be an amendment to the zoning overlay district map. The Town Council would need to go through the same amendment process as any other zoning change, which is spelled out in the RSAs. Jennifer Jarvis noted, when the Newmarket Industrial and Commercial Historic District had been established, each property owner had been asked if they agreed to be part of that.
Jennifer Jarvis asked why another Commission would be created in Town, when there are currently 20 vacancies for Town boards and committees. She asked why the Planning Board could not regulate and enforce the rules that are established. Town Planner Diane Hardy noted RSAs authorize the Historic District Commission to regulate the Historic District Ordinance through the review of building permit applications. Jennifer Jarvis read the RSAs to indicate the Historic District Commission would be the body to regulate those rules if such a Commission was established. Town Planner Diane Hardy noted the Planning Board is not authorized to provide the same level of review a Historic District Commission would. The Historic District Commission would have authority over the exterior of individual buildings located within the Historic District. The Planning Board only has authority over the façade of projects under its non-residential site plan review jurisdiction.
Jennifer Jarvis noted the membership currently requires all members to be a resident of the Town; she asked if that could be changed to all members should be a property owner of the Town. She added it might make more sense to have a Planning Board representative opposed to a Town Council representative as a member of the Commission. Town Planner Diane Hardy noted the Board had felt that way as well, but after review of the RSAs it was determined there must be a representative of the local governing body; in this case, a member of the Town Council.
Jennifer Jarvis noted the membership should consist of members with expertise in particular areas. She felt this addressed the first part of the purpose of the district, but did not address the part of the purpose where focus shall be on promoting a vibrant downtown and supporting new and existing businesses.
Jennifer Jarvis questioned the ability of the Commission to be able to write resolutions. She felt the Commission would have a higher level of authority within the district than the Planning Board. Town Planner Diane Hardy noted the term “resolution” in this instance would be to aide the Commission in conducting their business as allowed by the RSAs. George Willant added the Historic District Commission would be able to focus on individual properties. The Planning Board does not focus on individual residential properties; the Board deals with subdivisions and non-residential (commercial and industrial) and multi-unit residential projects with three or more units.
Jennifer Jarvis questioned the public hearings. Town Planner Diane Hardy noted the Planning Board must hold a public hearing for every application that is presented to the Board. The Historic District Commission would hold its own public hearing on applications that are presented to them. George Willant added it is possible the Historic District Commission will deal with applications and projects that will never need to come before the Planning Board. Jennifer Jarvis noted the way the ordinance is currently written it reads every time a building permit is pulled for a property in the historic district, there will need to be a public hearing. She felt this was onerous.
Jennifer Jarvis referenced the inventory of properties feeling as though this project had been ongoing. She referenced the notice to buyers understanding that potential buyers of a property located within the district would be made aware of the guidelines. She noted those who currently own property within the district prior to the enactment of this ordinance will be subject to the guidelines now as well. She noted when the historic district was established; all property owners had been asked whether they wanted to be included.
Jennifer Jarvis asked what the process of obtaining a certificate of approval would be. Town Planner Diane Hardy surmised the process would be for a property owner to see the Building Official; the application would then be forwarded to the Historic District Commission, if needed. She felt staff would be assigned to work with the Historic District Commission to help with that process. Jennifer Jarvis asked if it would be the Code Enforcement Officer’s discretion what would be sent to the Historic District Commission. Town Planner Diane Hardy noted the Planning and Zoning office works as a team. Val Shelton noted the ordinance as proposed, would require review by the Historic District Commission for every application. She suggested the language be modified to allow some discretion as to whether a project needs to go before the Commission.
Jennifer Jarvis asked why the permanent rules and regulations have not been included in the ordinance. She suggested this could go to the Town Council as a resolution and include that the guidelines, be adopted and have one fully encompassing ordinance. She questioned why the Board was trying to establish the Commission with interim regulations. Town Planner Diane Hardy noted under the RSAs, the Historic District Commission establishes the rules and regulations. She noted there had been a proposal before the Town Council in the past for a phased process, such as what was being suggested. Jennifer Jarvis noted the Town Council could set up the Commission, the Commission would propose regulations, the Town of Newmarket would have input, before authorizing the HDC to review applications.
Jennifer Jarvis referenced the application process asking if there was an idea what the applications would look like and whether there would be an application fee. Town Planner Diane Hardy felt there would be a fee to cover administrative costs as a public hearing would need to be noticed and abutters would need to be contacted. The fees would be outside the purview of the Planning Board. Jennifer Jarvis felt setting up the Commission first would allow some of these questions to be answered prior to adoption of the ordinance.
Jennifer Jarvis asked if the property owner would need to pay for the additional review services associated with the proposal. Town Planner Diane Hardy noted in the planning enabling legislation it is stated clearly the Planning Board has the ability to require additional studies at the developer’s expense. The RSAs pertaining to the establishment of the Historic District do not specifically address this issue. One Planning Board member has recommended adding language that would prohibit the cost of additional studies that would increase the cost of the application review to be discussed later this evening.
Barbara Briggs, of 20 Chapel Street, expressed her concern with membership. She felt requiring members to be a resident of the Town eliminates business owners who do not live in Town. Town Planner Diane Hardy noted that is a requirement set forth in the RSA.
Barbara Briggs felt the historic district was another hoop for people to jump through. She asked if the Advisory Heritage Commission and Historic District Commission were one in the same. Town Planner Diane Hardy answered there would be two separate commissions. Vice-Chairman Roy noted the Advisory Heritage Commission addresses the broader history of the community. He felt the Advisory Heritage Commission would work with the Historic District Commission. The Historic District Commission would address the overall administration of the standards as set forth. Barbara Briggs felt the Advisory Heritage Commission is a great idea and has served the community well. She was not in support of creating another commission with powers prohibiting certain changes to property.
Barbara Briggs was uncomfortable with the idea of setting up the Commission and then allowing them to create their own rules. She felt the rules should be laid out prior to the establishment of the ordinance. She also felt the fee schedule should be addressed prior to the creation of the Commission. Barbara Briggs suggested clarifying that section to make it very clear.
Barbara Briggs noted the public hearing should be open to everyone, not simply who the Commission deems appropriate. She asked if there were term limits to membership. She felt expecting the ordinance to be effective on July 1, 2009 was tight.
Phil LePage, Chairman of the Advisory Heritage Commission, referenced a couple letters he had received from property owners within the district. Letters are from Caroline Rogers and Mike Hoffman. He read the letters. Mike Hoffman wrote in support of the Historic District Commission while stressing regulations should not place undue fiscal restrictions on property owners. He noted he owns a property in the proposed historic district and is in favor of the district. He would like to see his property protected.
Carolyn Rogers also wrote in support of the Historic District Commission referencing her historic renovations on Main Street and discussing the importance of protecting historic resources.
Edward Moore, of 26 Bennett Way, noted he does not live or work in the historic district, but questioned what incentives there were for property owners to take on the stewardship of these properties. The ordinance is full of restraints. Town Planner Diane Hardy noted if property is rehabilitated within a historic district according to the standards, the opportunity for a 20% federal historic preservation tax credit could be realized. Information is available through the New Hampshire Preservation Alliance and the New Hampshire Division of Historical Resources on this program. Vice-Chairman Roy added the guidelines would also protect abutting properties and values.
Mark McKenzie, of 6 Washington Street, expressed his appreciation for the hard work that has gone into this ordinance. He felt it would encourage people to be aware of the historic district neighborhood and reinforce the historic values. He noted he had sat in on several Advisory Heritage Commission meetings. The Advisory Heritage Commission had been more than willing to work with homeowners and the Town in preserving the unique historical feel of downtown Newmarket. He asked if there was the possibility of federal funds once this area has been designated. Town Planner Diane Hardy noted there is the possibility of federal funding. One program specifically is a certified local government program administered through the State Historic Preservation Office. A historic overlay district does need to be in place to be eligible for these funds; however there are other historic preservation grant and loan programs which do not require a local historic district to be in place.
Val Shelton asked Mark McKenzie, as a resident of Washington Street, if he has made improvements to his home that are consistent with the original architecture and whether he felt from a resident’s perspective, if there was anything within the ordinance that may be a burden to property owners. Mark McKenzie noted he has painted the house and put up rain gutters. The home next to his has put up synthetic siding.
Jennifer Jarvis understood the Town Council has asked the Planning Board to create this ordinance. She asked whether the Planning Board would make a recommendation to the Town Council as to whether a Historic District Ordinance is necessary. Vice-Chairman Roy noted that will be open for discussion when the Board confers at the end of the public hearing. Jennifer Jarvis asked the Board to consider most of her questions had been answered by stating the RSAs required it. She noted the RSAs only required certain actions if the Historic District Ordinance is created.
Mike Provost, of 16 Beech Street, noted he did not own property nor was he a resident of the proposed Historic District. He had been president of the Newmarket Service Club when the discussions of a historic and National Register District began in the 1970s. He noted when the national historic district began, every property owner within that district did have a vote; majority ruled. Once a National Register District is established, it cannot be undone. A property cannot be removed from the national historic district. For the past 28 years, every property within the historic district has been under the umbrella of a national historic district. The intent of a local historic district, as is being proposed, is to preserve the character, tradition and history of Newmarket. Newmarket has an eclectic historical district, as there are buildings from different architectural eras. The overlying statement of the guidelines is: “These standards are intended as guidelines to be applied in a reasonable manner, taking into consideration economic and technical feasibility.” These standards are not meant to hamstring any property owner but are meant to protect the heritage and culture of a community. Newmarket does not have a demolition ordinance; there is nothing in the ordinances to protect the character of Newmarket for future generations. This ordinance will address exterior changes, not interior changes. The Town of Newmarket years ago created a TIF District to rejuvenate the downtown areas in order to attract a developer to redevelop and preserve the mills. The developer will want to have the investment made into the mills protected. Using properties as they have been historically used does not mean requiring no changes to the use. It means to keep the use consistent with the changing times, but also consistent with the history of the building. This decision needs to be made for the overall betterment of the Town of Newmarket today, tomorrow and for future generations.
Vice-Chairman Roy closed the public hearing at 8:07 p. m.
Val Shelton suggested membership be comprised of people with expertise including economic revitalization. She suggested no building should be erected, restored, demolished or materially altered. She suggested adding a new paragraph under the first paragraph of Historic District Standards and Guidelines that reads: “These standards pertain to the rehabilitation of historic buildings including all materials, construction types, sizes, and occupancy. They shall encompass the exterior of a building, related landscape features and the building's site and environment as well as attached, adjacent, or related new construction. The standards are intended as guidelines, to be applied in a reasonable manner, taking into consideration economic and technical feasibility.” She felt this would ensure any rules and regulations the Historic District Commission adopts encompasses this statement as well. As the ordinance is proposed, if the Historic District Commission did away with the U.S. Secretary of Interior’s Standards for Rehabilitation, this wording would also be eliminated.
George Willant felt there was concern among members of the public that the Historic District Commission would be able to set the standards and guidelines without a public hearing. Town Planner Diane Hardy noted a public hearing would be required by State RSA when setting the guidelines. George Willant did not feel the ordinance should move forward without having set guidelines in place.
Val Shelton noted there is no incentive for the Historic District Commission to adopt its own standards and regulations within a one-year period. She suggested adding language not requiring that applicants have to obtain a certificate of approval, if it is past the expiration of the one-year time period.
Val Shelton also suggested adding the following language under Review of Applications: “The applicant shall not bear the cost of any such professional advice sought by the Commission, nor shall the applicant be responsible to produce special studies associated with the application.” She felt this would put the burden on the Historic District Commission to have the correct make-up on the Commission; have the expertise to develop the rules and regulations; and administer the ordinance properly.
Janice Rosa felt the members of this Commission should not be on any other Boards or Committees in Town. She felt it was important to get a variety of citizens on the boards within the Town. Vice-Chairman Roy agreed but felt it was difficult enough to get volunteers. The required make-up and qualifications needed for this Commission may discourage certain residents from applying. He recommended not limiting the membership too much.
Janice Rosa noted she believed in historic preservation, but felt there could be too many restrictions on property owners. The Town could preserve the history and character by creating a demolition ordinance or a “tear-down” ordinance. She questioned restrictions on the palette of colors that would be acceptable. She expressed concerns about property owners having the financial means to comply. She asked what future plans were to extend the historic overlay district into “New Village”. She agreed with George Willant about having rules and regulations in place before enacting the ordinance. She asked for an update on the house bill regarding property tax breaks for historic buildings.
Rick McMenimen shared her concern about approving a document without a set of rules and regulations. Town Planner Diane Hardy noted any changes to the guidelines can be changed by the Historic District Commission but it requires a public hearing. There were draft guidelines the Advisory Heritage Commission had provided with its recommendations, but the Board had decided to take the approach to adopt the Secretary of Interior guidelines as interim standards.
Vice-Chairman Roy asked if it would be possible to create the Historic District Commission but not grant any authority until after the rules and regulations are in order. Town Planner Diane Hardy noted a couple years ago such a proposal had been presented to the Town Council and had been turned down. She suggested that option be reconsidered.
Val Shelton understood the Historic Overlay District was designed to match the National Register “Newmarket Industrial and Commercial Historic District”. The ability to break the district apart is there. She suggested it might make sense to provide some flexibility to the Historic District Commission (HDC) to create specific guidelines that are tailored to the character of various streetscapes and neighborhoods within the district. She noted New Village had been built to support the workers within the mills. She asked why that had not been included in the original National Register Historic District nomination. Mike Provost noted that area had been recommended originally. The privately raised funds to hire the architectural historian only allotted a certain sized area to be studied. The area was downtown Newmarket that had the most impact of telling the story of the mills. As a historic preservation consultant, he would recommend going with the same district, and expanding the district, if so desired, at a later date.
Adam Schroadter noted there have been discussions about grants and financial incentives once this district is set up. He felt the Commission should take a pro-active approach about letting property owners know about these programs. Town Planner Diane Hardy agreed that was important and felt the Advisory Heritage Commission would be more appropriate board to take on that role.
Rick McMenimen noted the public wants to have an opportunity to know what the regulations are and to be able to speak to them. It was explained that was possible, as the RSAs require a public hearing before the “permanent” Historic District Regulations are adopted.
Val Shelton asked what would happen after the one-year timeframe if the Historic District Commission does not adopt the rules and regulations.
Judith Carr felt it was ready to go to the Town Council with the changes made tonight. Town Planner Diane Hardy noted she hoped to make the necessary changes and have a recommendation letter to send to the Town Council with the draft ordinance.
Action
Motion: Chester Jablonski made a motion to change the membership to include two members that reside in the proposed district and reduce the representatives “at-large” from two members to one member.
Seconded: Val Shelton
Vote: All in favor
Action
Motion: Val Shelton made a motion to include economic revitalization under Section C, number 2, last paragraph. Under Section C 3, before numeral I add the word “one.” Under D, insert the word “materially” before the word “altered”. Under N, leave the date to be adopted by Town Council blank.
Seconded: Chester Jablonski
George Willant felt the word “materially” was open to interpretation.
Vote: In favor: Judith Carr, Chester Jablonski, Rick
McMenimen, Vice-Chairman Roy, Val Shelton
Opposed: Janice Rosa, George Willant
Abstained:
RickMcMenimen asked for the word “Chapter” to be included on page 1.
George Willant referenced the comment made about the Historic District Commission having the authority to hold a public hearing opposed to mandating public hearings. Town Planner Diane Hardy noted the general public has an interest in the downtown. She suggested removing the second and third sentence from Page 6, paragraph I, which restricts those who participate in the public hearing, as suggested by Ms. Briggs.
Action
Motion: George Willant made a motion to remove the second and third sentences on page 6 under I.
Seconded: Janice Rosa
Vote: All in favor
Action
Motion: Val Shelton made a motion to include the following sentence under Section F-2: “The applicant shall not bear the cost of any such professional advice sought by the Commission nor shall the applicant be responsible to produce any special studies associated with the application.”
Seconded: Janice Rosa
Vote: All in favor
Action
Motion: Val Shelton made a motion to include a new paragraph be included at the end of Section E which reads: “All standards and guidelines shall pertain to the rehabilitation of historic buildings including all materials, construction types, sizes, and occupancy. They shall only encompass the exterior of a building, related landscape features and the building's site and environment as well as attached, adjacent, or related new construction. The standards are intended as guidelines, to be applied in a reasonable manner, taking into consideration economic and technical feasibility.” Start a new paragraph that states: “Until such time standards and guidelines are adopted by the Historic District Commission, the Secretary of Interior’s Standards for Rehabilitation as outlined below shall be adhered to on an interim basis.” In addition the duplicated language in the introductory paragraph of the Secretary of Interior’s Standards for rehabilitation shall be deleted.
Seconded: Janice Rosa
Vote: All in favor
Action
Motion: Val Shelton made an amendment to Section 2-B Overlay District Boundaries delineating the boundary as follows: “All property fronting on Main Street down Exeter Street, up Garry Ave, back down Route 152 (shown as continuation of Main Street on the map), including all properties to the Lamprey River, on Water Street and the mill properties across the river.
George Willant suggested if the Historic District Commission is created, the Commission should parcel out the area. He didn’t feel this was a decision the Board should make in a short amount of time. Vice-Chairman Roy asked if the Board felt comfortable asking the Town Council to consider reducing the size of the overlay district.
Valerie Shelton commented that her concern has always been having one set of regulations apply to all properties throughout the proposed district and believed that the regulations adopted would have to relate to all properties with the district as proposed. Town Planner Diane Hardy responded that the commission could adopt different sets of regulations to cover different areas and that it was common to have different guidelines for different areas.
Val Shelton temporarily withdrew her motion.
Action
Motion: Judith Carr made a motion to send the draft ordinance to the Town Council with the changes from tonight.
Seconded: Chester Jablonski
Vote: In favor: Judith Carr, Chester Jablonski, Rick
McMenimen, Vice-Chairman Roy, Val Shelton
Opposed: Janice Rosa, George Willant
Abstained:
Motion: Val Shelton made a motion to recommend the Town Council give consideration for establishing two overlay district boundaries; one for Main Street, Exeter Street, Gerry Ave and Route 152 corridor and the second overlay district for other properties as delineated on the map as residential portions.
Seconded: Vice-Chairman Roy
George Willant was not comfortable with two overlay districts. It is a fundamental piece of the ordinance to understand the overlay district. Town Planner Diane Hardy noted when establishing historic district boundaries, there is a lot of research in determining the importance of each property within the district and whether or not a property “contributes” to the character of the district. She felt a determination without such research could be considered arbitrary. There needs to be a justification of the boundaries in order to withstand legal challenges. Valerie Shelton clarified that she was just looking for a subset of the existing district.
Janice Rosa asked if the Board should get input from those parcel owners as to whether they wanted to be included. Janice Rosa agreed stating that the map should be left alone, for it was already professional researched, and if there is going to be any revisions to the map than the new HDC should do so and not the Planning Board.
Vote: In favor: Vice-Chairman Roy, Val Shelton
Opposed: Judith Carr, Chester Jablonski, Rick
McMenimen, Janice Rosa, George Willant
Abstained:
Town Planner Diane Hardy noted she would make the changes as voted on by the Board, and send it electronically to all the Planning Board members along with the draft letter.
Jennifer Jarvis asked what the Planning Board’s position is on the creation of a Historic District Commission. Vice-Chairman Roy noted the majority of the Board is in favor of the Historic District Commission.
Val Shelton noted the Town Council charged the Planning Board with creating an ordinance for the Town Council to deliberate on. She personally felt the Board had created a workable document, but the Town Council would need to determine whether or not they wanted to establish a commission and adopt the ordinance after hearing public input. She still has reservations as to how it is defined.
Applicants/Location: Bosinger 2006 Family Trust-Eliot & Sandra Bosinger, Trustees at Tax Map R4, Lot 57-9/David & Linda Dodds & Jacqueline Berg at Tax Map R4, Lot 57-6, R1 Zone.
Proposal: The proposal is to revise the lot line between Tax Map R4, Lot 57-9 and Tax Map R4, Lot 57-6 and subsequently create a six-lot subdivision on the newly created Lot 57-9. Lot 57-9 will increase in size from 10.009 acres to 14.730 acres, while Lot 57-6 will decrease in size from 17.47 +/- acres to 12.75 +/- acres. Lot 57-9 will then be subdivided into six conforming lots. The full application is available to view at the Newmarket Planning Office, 186 Main Street, during business hours.
Status: Applications were accepted at and are continued from the February Planning Board meeting
Town Planner Diane Hardy noted the Planning Office received today a report from West Environmental and Farwell Engineering. Copies were made available to Planning Board members. At the last meeting it had been agreed a site walk would be scheduled upon receipt of these documents.
Val Shelton expressed her confusion why the Board is not first discussing a Special Use Permit for the wetland crossings and buffer encroachments for the proposed road. If that permit is not granted, this application becomes moot. Town Planner Diane Hardy noted a Special Use Permit would be required for the wetlands crossing. The applicant has not yet applied for that permit.
Bill Doucet from Doucet Survey noted the Town has hired another wetlands scientist to review the site at the applicant’s expense. The applicant is waiting to proceed until that report is received. Town Planner Diane Hardy noted the report was received today. If the applicant applies for the Special Use Permit, before the deadline for the April meeting, then the Board can hear that application as well at the April 14, 2009 Planning Board meeting. She felt it was important to hear these applications simultaneously.
Bruce Fecteau, of Ash Swamp Road, noted he is an abutter to the property. He would like to be able to make a site walk as well.
The Planning Board set a site walk for Saturday April 4th at 7:30 a.m.
Action
Motion: Judith Carr made a motion to continue this application to the April 14, 2009 meeting.
Seconded: Rick McMenimen
Vote: All in favor
Janice Rosa asked for this application to be put on the agenda first for that evening as abutters have had to sit through hours of meeting several times.
Bill Doucet asked about a Technical Review Committee meeting. Town Planner Diane Hardy noted that would be done after the site walk. She provided Bill Doucet with copies of the reports received today.
Applicants: Newmarket School District/Durell Woods Community Association
Location: Tax Map R5, Lots 95 & 130, Zone R2.
Proposal: Public hearing for an application for subdivision. The proposal is to create an easement over a 4-acre portion of Tax Map R5, Lot 130, for the benefit of Tax Map R5, Lot 95 (Newmarket Elementary School).
Steve Michaud, from Doucet Survey, representing the Newmarket School District and the Durell Woods Community Association stated the application is to create a four-acre easement over property owned by Durell Woods Association, Inc. The property is part of the open space for the Durell Woods subdivision. The intended use is ultimately for a recreation all-purpose playing field, which would benefit the students of Newmarket Elementary School and the residents within the Durell Woods Subdivision. There are also plans for outdoor classrooms and laboratory. A review letter, dated March 24, 2009, had been received from the Town Planner this evening. Superintendent Mark LaRoach and School Attorney Peter Bronstein were also in attendance. There are buffers on the site, which restricts the erection of structures. There is an existing trail located on the property.
A member from the public asked how the field would be constructed over the sewer line without disturbing the line. Steve Michaud showed where the sewer easement was located on the field. A conceptual design has been submitted to the Town Planner, but no engineering design has been prepared. Town Planner provided copies of the conceptual plan to Planning Board members.
Steve Michaud noted the area is currently wooded. There is no intention to clear cut. The long-term plan is to remove some of the trees and create the playfield. Vice-Chairman Roy noted without clear cutting the land now, the School does not gain any immediate benefit from the easement. He asked when the school could expect to be able to use the easement for recreation purposes.
Cliff Chase, Chairman of the School Board, explained there is an immediate need to allow teachers within that building to explore outdoor learning opportunities such as a science lab. He explained just gaining this first step has been a long process. The School does not have a specific design for the field nor do they have funding to construct the field. It is not the intention of the School to begin raising funds from the local tax base. His hope was to seek private funding through grants. The goal at this point is to gain legal access to the property.
George Willant referenced an email submitted to the Board expressing concerns about drainage along Main Street. He questioned the affect this plan would have on drainage in that area given the distance. Town Planner Diane Hardy noted she spoke with Public Works Director Rick Malasky who had not been aware of drainage problems within that area. The Town is discussing an entire area drainage study.
Vice-Chairman Roy opened the public hearing at 9:51 p. m.
Gene Chadbourn, of 22 Huckins Drive, noted there are 30 houses within the cul-de-sac; there are 27 children living within the area. The traffic is horrendous and children play in the street. The traffic would get worse with this proposal. When her house was built 15 years ago, she had understood that land was for conservation purposes; nothing should be allowed there.
Vice-Chairman Roy noted the only thing being proposed right now is an easement to allow access for outdoor classrooms. He asked if Gene Chadbourn felt this proposal would disrupt the area. Gene Chadbourn felt it would. She lived behind a school for 25 years then moved to Newmarket for retirement. She felt this proposal would interrupt the peace and quiet of the neighborhood she currently enjoys.
Chester Jablonski noted he is a member of the School Board. He asked how the children in the Elementary School are supposed to get their exercise when there is not ample area for them to play. Gene Chadbourn stated there are paths that lead to the high school. Chester Jablonski noted those paths cross private property.
Ellen Marston, of 20 Huckins Drive, noted the Durell Woods Community Association is very inactive; they have not had one meeting. She did not see how this proposal would help the Durell Woods community. There are no sidewalks or streetlights. Her property is right near the path; this proposal would interrupt the way of life.
Val Shelton noted there is a twenty-foot right-of-way referenced on plan #2, as well as a water and sewer easement. She asked if, as part of this easement there are plans to deed the rights of that access way. Steve Michaud explained that access is owned in fee by the Homeowners Association as part of the open space parcel; it has access off Huckins Drive. The intent is not to access the proposed school easement from Huckins Drive. The intent is to access the easement from the school parking area. There is a draft easement being created. The draft version he has seen would have no parking signs placed along Huckins Drive to alleviate concerns about traffic and parking. The easement would have no language providing access through that path.
Bruce Fecteau, of 244 Ash Swamp Road, noted he has no interest in the property, but does have an interest in the discussion. He has been a Planning Board member in the past. He understood the abutters’ concerns, as the intent of an open space subdivision is to create undisturbed space. He felt that could be a reason some of the residents bought these particular parcels. He questioned whether the project would have been approved originally had this idea been presented at the time. He asked the Board to keep that in mind when weighing their decision. He did not negate the fact children need a place to play.
Linda Dossier, of 244 South Main Street, explained there is a brook that runs through her property. She has had the past Town Administrator and past School Superintendent to the property to look at the drainage. She explained the drainage is taking other routes and is washing away land on her property. She noted this field would not be large enough for an athletic field. There will be no blasting on the property.
Chester Jablonski noted none of the schools in the town own a field. There would be no blasting on this land. The intent is to open and create a field for children to play.
Steve Michaud noted when the open space parcel was conveyed from the developer of the Durell Woods subdivision to the Durell Woods Community Association there was a reservation in the deed that allowed the conveyance of up to 50% of this lot to be conveyed in fee or easement to the school and therefore it needed to be dealt with as a modification of the previously approved plan. The total area of the lot is 38 acres; half of that area would be 19 acres. The proposal is to create a four-acre easement.
Vice-Chairman Roy asked if this parcel was part of the original subdivision. Steve Michaud noted he did not have the specifics of that, but the school had representatives that may be able to address those concerns. Town Planner Diane Hardy explained she had done a lot of research on this issue. Durell Woods was approved in February 1987 under the Alternative Design Subdivision (ADS) regulations, which predate the cluster (residential open space design) regulations as we have today. This particular development was developed by AWL Power, Inc, which is a company of Walter Cheney. There were 64 single-family house lots and 129 condominium units approved as part of the plan. This parcel of land (Tax Map R5, lot 130) is open space that was part of that development consisting of 37.97 acres. There were caveats placed on the plan including the parcel could not be subdivided. The type of use envisioned here under the old ADS requirements may have been a permitted use, but the plan presented to the Planning Board at that time did not show this land would go back to the school at any point even though the condominium documents and legal instruments conveyed afterwards did show this reservation of land. She had reviewed all the Planning Board documents; there had been no discussion this land had ever intended to be for the School department. It is her belief if this application were approved, there would also need to be a revision to the site plan approved in 1987 because this was not part of the original proposal.
George Willant expressed his confusion why recreational use for conservation land has to be explicitly stated when it is an allowed use. Town Planner Diane Hardy explained the ordinance and regulations at the time provided the opportunity for public acquisition of rights to permit or restrict public areas or to allow or disallow recreation development on open space lands. The Planning Board at the time had never had a discussion about recreation use being allowed on the parcel and, therefore, it needed to be dealt with as a modification of the previously approved plan.
Bruce Fecteau noted he is the Chairman of the Conservation Commission. The Conservation Commission does not have interest in this land. Conservation land is simply a term coined to speak to the open space parcel of this development. The intent of open space is to make up for the area of the subdivision that is taken up by houses and asphalt. He acknowledged there were no plans to build a structure, but explained simply removing the trees would affect the drainage of the area. He referenced the other side of the hill with the apartments and the bowl area.
Bob Crowell, of 20 Durell Drive, agreed children should be able to have recreation areas. He noted children on Durell Drive are unable to play outside without supervision of their parents due to the speeding of vehicles through the neighborhood. He did not see how this proposal would benefit the residents of Durell Woods. He noted there are school buses running stop signs within the development. He has made complaints to the Police Department and has been told the department is too busy to enforce the speed limit within Durell Woods because there is too much construction in Town. This is the main thoroughfare to the Elementary School and the police department has done nothing to curb the speeding. He did not feel signs would make a difference. A speed trap had been set up and 22 vehicles had been stopped for traffic violations. He agreed children needed a place to play, but felt that area should be safe for them first. He asked the Board to listen to the people that live in the community and to the police department before making a decision.
David Moore, of 26 Huckins Drive, noted he had purchased his home in October 2008 with the understanding this land would be open space. He asked how the size of this parcel was determined. He asked if there have been studies done to determine the amount of land needed or whether the school property could be modified. Chester Jablonski noted the school children have no place to play. David Moore noted he is a biologist; most of his friends are schoolteachers. He understood the need for an area for children to play. He questioned whether all this land was needed. Steve Michaud noted the field plan is conceptual, but is limited to the generally sloping 1/3 of the parcel. The remaining 2/3 would remain wooded.
Val Shelton noted as a new homeowner, the deed would have referenced the possibility of a portion of the open space could be conveyed to the school. She asked if David Moore had questioned that. David Moore noted he had not read any such language within his deed. Town Planner Diane Hardy noted there is a clause in the Durell Woods bylaws that allows the former owner of Durell Woods the authority to convey up to 50% of the open space to the school district.
Town Planner Diane Hardy noted this application had been submitted signed by Walter Cheney on behalf of Durell Woods. The question arose whether Walter Cheney has the legal authority to sign the application on behalf of the Association. Legal counsel has reviewed this and has asked for documentation showing that authority has been granted. She asked if the homeowners had been asked whether Walter Cheney could sign this application on behalf of Durell Woods Community Association. David Moore answered he had not been asked.
David Moore asked what authority Durell Woods would have to determine what activities are appropriate within this area. He noted there are some progressive activities that could be of concern and could impact the neighborhood.
Attorney Peter Bronstein noted based on the recorded documents there could be a deed to the School District of 18-19 acres. That land could be conveyed in fee. The School District has determined to go for an easement over a portion of the possible land available. The only area that would be cut is the area of the field. The rest of the area would be used for nature education. He noted the applicants are willing to provide the Planning Board’s legal counsel with whatever is desired. The progression is AWL Power Inc deeded the property to Durell Woods Community Association Inc. within the bylaws, until a certain portion of the properties were sold, the developer retained control of Durell Woods Community Association Inc. AWL Power Inc was dissolved. The stockholders of the corporation can sign the documents. The Cheney family was the stockholders of AWL Power Inc at the absolution of the company. He explained there is no intent for the school to use the access off Huckins Drive.
Vice-Chairman Roy asked if there was any statutory limit of time the developer can retain control of the open space. Attorney Peter Bronstein answered this is not a condominium association. Town Planner Diane Hardy referenced RSA 356-B-36 which stipulates a time limit the former owner can retain control; two years for condominiums, three years for one having convertible land and five years for expandable condominium. Attorney Peter Bronstein noted RSA 356-B governs condominiums. To the best of his knowledge he did not know of statutory limitations on homeowners associations.
George Willant asked if the certain percentage of build-out has not been met. Town Planner Diane Hardy noted the build out is at 60%; the percentage of build-out required before transferring ownership of the open space is 75%. Legal counsel for the Planning Board has asked who the successor is in title. Attorney Peter Bronstein explained when a corporation dissolves, the property then is under the ownership of the shareholders at the time of the dissolution. The title is cleared up by affidavits and whatever court records are available from the Secretary of State.
George Willant asked how the land could be owned by the homeowners association without them having control over the land. Attorney Peter Bronstein explained the parcel was conveyed to the homeowners association while reserving the right to sell or provide an easement to the School District for up to half of the land conveyed. Val Shelton explained AWL retains the rights to manage the association until 75% of the lots and condominiums are sold.
Town Planner Diane Hardy noted Attorney Laura Spector had felt there would need to be amendments to the bylaws that would address the whole arrangement. She read from the warranty deed: “AWL reserves the right to require said Durell Woods Community Association to convey back to AWL Power either in easement over a portion or portions of or fee simple title to any portion or portions of Lot 72 in order that they may make a simultaneous gift of such easements or fee simple conveyance to the Town of Newmarket for the purpose of building school on same or using same for the school or other educational purposes.” She explained how this would be achieved is also laid out. It appeared to her from the review of the records that the Planning Board at the time had approved the subdivision without knowledge of this reservation. However, the Town Counsel at the time had presumably reviewed and approved the condo documents.
Janice Rosa asked if the School District would have to pay for the easement. Attorney Peter Bronstein noted this transaction would be considered a donation.
Ellen Marston felt there would be a noise factor to several homes along the road. She had concerns about when the field is cut. She wanted the big trees to buffer the sound.
Bruce Fecteau noted if the Board accepted this, they could clarify how much land is cut and where it is cut. He suggested being very specific. He appreciated Chester Jablonski’s effort in being on more than one board, but hoped he would excuse himself from voting on this application.
Vice-Chairman Roy closed the public hearing at 10:43 p. m.
Chester Jablonski noted the children need a place to play. Steve Michaud explained the conceptual field size is 150 feet by 250 feet. He showed the approximate location of the field. Chester Jablonski felt this was important considering the obesity epidemic among young children. He apologized if he had been harsh with the public, but after working in the classroom, and serving on the School Board for five years, he understood the need for these children to have an area to play.
Val Shelton asked for clarification stating she understood that on the previous Planning Board meeting minutes there were no references to land being conveyed to the school or land being used by the school. Town Planner Diane Hardy noted there was no reference to common land being used by the school. There are documents stating the elementary school tract was part of the original Durell Woods subdivision. There was a lot of discussion about that. Among advice from legal counsel, the elementary school tract had been taken out of the subdivision. There was no discussion about the reservation allowing up to half of the open space parcel could be conveyed to the school.
Val Shelton referenced Town Planner Diane Hardy’s notes stating the ordinance and regulations at the time provided the opportunity for public acquisition of rights to permit or restrict public areas or to allow or disallow recreation development on open space lands. She noted the intended use being proposed under the ordinance at the time would be allowed. Town Planner Diane Hardy noted if the fields were considered an accessory use with the understanding the residents of the subdivision could use the fields, that would be consistent with the intent residents would have the opportunity to enjoy those lands.
Val Shelton noted as part of the previous adoption of this subdivision, the Planning Board would have accepted the bylaws. Town Planner Diane Hardy noted there was a letter in the file which indicated the attorney had reviewed and approved the bylaws but there was no evidence as to what was reviewed and approved.
Rick McMenimen asked if the Planning Board decided to approve this application and the field to be built in the future, whether requiring the field to be closest to the school could be imposed. Chester Jablonski noted there is ledge and wetlands on the parcel. The field is located within the only area feasibly possible. He asked if the Planning Board could also stipulate the trees on the other side of the property not be removed.
Rick McMenimen asked whom the land would revert to if the field idea for this parcel were never implemented. Town Planner Diane Hardy explained the easement would continue on whether a field is built or not.
Val Shelton asked what percentage of the easement area would be impacted with the creation of the field. Steve Michaud was unable to specifically provide that information. The purpose of the conceptual plan had been to determine whether a field could fit within the constraints of the property.
Janice Rosa asked if a representative from the school district would bring her on a site walk.
School Superintendent Mark LaRoach noted the school district is sensitive to residents’ needs and concerns. The Town is going to need to work together to remedy some of the major concerns this Town is facing including the lack of athletic fields and aging facilities. Schools are a competitive market; there are private schools, charter schools and tuition programs. The school district’s intent is to work with the Town and residents towards a common goal. He noted they would look at trying to move the field closer to the school as well as ensuring access is from the school. The field would not be lighted. It would be used during school hours.
Town Planner Diane Hardy referenced a phone call from an abutter who is the President of Hillside Condominium Association noting the address had been wrong. She noted the town records show the property address is Develco, owned by Leo Manseau and should be changed. That particular property has been turned over to the condominium association. The President of the Hillside Condominium Association asked for this application to be continued until the April 14, 2009 Planning Board meeting in order for him to be able to contact everyone within that condominium association.
Steve Michaud explained notices had been sent according to the information available through the Town. Diane Hardy indicated that the Town isn’t always notified of changes in the homeowners and condominium associations and would let the Town Assessor’s office know.
Action
Motion: Judith Carr made a motion to continue the application to April 14, 2009.
Seconded: Val Shelton
Chester Jablonski asked what the legality of the Planning Board accepting the application is. Town Planner Diane Hardy noted under our broad definition of a subdivision, a conveyance of an easement for a use that was not part of an original plan requires, not only subdivision approval, but also approval for a revision to the approved final subdivision and site plan for Durell Woods. The attorney was of the opinion that this was a subdivision.
Vote: In favor: Judith Carr, Rick McMenimen, Janice Rosa,
Vice-Chairman Roy, Val Shelton, George
Willant
Opposed:
Abstained: Chester Jablonski
Vice-Chairman Roy noted candidates’ night would be in May, so the next Planning Board meeting will be April 14, 2009.
A site walk was set up to review the property on April 4, 2009 at 9:00 a.m.
Other Business
Vice-Chairman Roy noted there is a Planning and Zoning conference coming up in Manchester for any Board members who wish to attend. He felt these conferences were worth attending.
Discussion – Discussion of Open Space Plan recommendation to consolidate Town owned lots in the vicinity of Lita Lane.
Drew Kiefaber, Chairman of the Open Space Commission, explained there are a number of Town-owned lots in the vicinity of Lita Lane that have been conveyed through open space, tax lien or by the developer to the Town. He explained he is trying to put together a group of interested parties within the community to review the properties and develop a plan for the highest and best use of these properties. He is asking for Planning Board representation on this committee. He has spoken with the Town Council and Conservation Commission for representatives. Town Planner Diane Hardy has been recommended by the Town Administrator. He hoped to have the Recreation Department involved as well.
Adam Schroadter and George Willant expressed their interest in participating in the group.
Other Business – Continued
Vice-Chairman Roy referenced a meeting held at the Sandy Point Discovery center that had been well attended. He handed out information to each Board member.
Adjournment
Action
Motion: George Willant made a motion to adjourn at 11:14 p.m.
