NEWMARKET PLANNING BOARD
TOWN COUNCIL CHAMBERS
DECEMBER 9, 2008
7:00 P.M.
Present: John Badger (Chairman), Judith Carr (Town Council representative), Diane Hardy (Town Planner), Chester Jablonski, Rick McMenimen (Alternate), Janice Rosa, Peter Roy (Vice-Chairman), Adam Schroadter (Alternate), Val Shelton
Absent: George Willant
Chairman Badger called the meeting to order at 7:01 p. m.
Pledge of Allegiance
Public Comments
Rose-Anne Kwaks of Wadleigh Falls Road asked if an item on tonight’s agenda is not heard, whether the public would have an opportunity to speak to that item, since agenda items cannot be discussed under Public Comments. Chairman Badger answered there would be no opportunity to speak to an item on the agenda if it is not heard.
Reviewand Approval of Minutes: 10/14/08, 10/22/08, 11/18/08
Chairman Badger asked the Board for their approval to save this agenda item for the end of the meeting. The Board agreed.
Regular Business
Public Hearing for an application for renewal of excavation permit
Applicants: Wayne and Janice Rosa
Location: 421 Wadleigh Falls Road, Tax Map R6, Lot 2, B3 Zone
Status: Continued from November 18, 2008
Janice Rosa recused herself from the Board.
Chairman Badger gave a brief history explaining to the Board the applicants had received approval for a three-year renewal permit for operation of the gravel pit two years ago, by the Planning Board. It was later discovered there had been only two public notices posted instead of three. There have not been any complaints from anyone who did not have the opportunity to speak at the original hearing due to the lack of noticing. He noted Wayne and Janice Rosa had two choices this evening, as there have been no notices from Code Enforcement Officer Dan Vincent indicating there was noncompliance. The Rosas could choose to have the original permit reaffirmed for the remaining permitted time; the original permit would expire December 2009. The Rosas could ask for a complete renewal of a three year permit. If the Rosas chose to move forward with the full permit, the Board would not be able to hear this application tonight, as there are requirements and documents that must be set forth in order to hear a renewal permit application. These documents include test pits, engineering reviews, and updated reclamation
bonds. He noted the Board could reaffirm the original approval or consider a three year permit renewal.
Attorney Ari Pollack noted he had not anticipated the Board offering such a choice. He noted, if the Board would consider a four year renewal period, he would discuss that with his clients. The applicants would not be here without this technical issue, as they have continued to run the gravel pit in compliance with State RSAs.
Chairman Badger explained the Board has spoken with legal counsel; the Board is not authorized to approve a four year renewal permit. The Board can reaffirm the one year renewal approval or the process can begin for a three year renewal permit application. Attorney Ari Pollack answered the applicants have not prepared the necessary paperwork for an application for three year permit renewal for tonight. He asked for a moment to consult with his client.
Attorney Ari Pollack consulted with Wayne and Janice Rosa in the hallway from 7:12 p.m. until 7:16 p.m. He explained to the Board the applicants would ask the Board to reaffirm the approval for permit renewal from 2006. This reaffirmation of approval would validate the expiration of the existing permit to December 21, 2009.
Chairman Badger noted he would open the public hearing to anyone who did not have a chance to speak at the permit renewal application hearing that was held two years ago due to the lack of noticing.
Chairman Badger opened the Public Hearing at 7:17 p.m.
No comments.
Chairman Badger closed the Public Hearing at 7:17 p.m.
Chairman Badger appointed Rick McMenimen and Adam Schroadter to sit in for George Willant and Janice Rosa respectively.
Action
Motion: Vice-Chairman Roy made a motion to reaffirm the renewal of excavation permit originally granted in 2006. The permit will expire December 2009.
Seconded: Rick McMenimen
Vote: All in favor
Dan Vincent – Report and general discussion with Code Enforcement Officer related to Aquifer Protection and Excavation Regulations
Chairman Badger noted the Board had discussions with the Code Enforcement Officer a few months ago regarding compliance issues with all gravel pits within town. Code Enforcement Officer Dan Vincent had presented Town Planner Diane Hardy, Vice-Chairman Roy and Chairman Badger with a list of compliance issues throughout the Town. He had asked Code Enforcement Officer Dan Vincent to come back with a “hot-list” of priority items. The recommendations being made by Code Enforcement Officer Dan Vincent would be applicable to all gravel pits.
Janice Rosa rejoined the Board.
The Code Enforcement Officer explained, if a new applicant asks for a permit for sand or gravel pits, the Town would require test pit information, reclamation plans, sloping information and a bond. Other provisions may be required as set forth in RSA 155:E. There are also zoning regulations relating to the Aquifer Protection District, where several of the gravel pits in Newmarket are located. He referenced his handout explaining the document page by page. He explained that towns may adopt ordinances and regulations that are stricter than State requirements. There are four active pits at this time. Updated reclamation plans have not been submitted for the grandfathered pits. It is important to have updated reclamation plans and to know where the seasonal high water table is. He suggested to the Board there is not enough information to properly review the pits for compliance with local and state regulations. He recommended the Board require all gravel pits to comply with certain criteria. He expressed his concern with off-site materials being brought into gravel pits; particularly those pits over the aquifer.
Chairman Badger noted the Board had just approved a subdivision involving the Smith Farm, which had a gravel pit. He asked why this gravel pit had not been included in the list. Code Enforcement Officer Dan Vincent answered he had not included this pit in the list, because the Board had required that certain documents and information be set forth. Town Planner Diane Hardy agreed stating the Board had imposed conditions of the approval including the completion of a reclamation plan. Code Enforcement Officer Dan Vincent expressed his concern with protecting the aquifer; the Smith property is not located over the aquifer.
Val Shelton asked if the Town pit was operating and whether the Town is required to abide by RSA 155:E. Code Enforcement Officer Dan Vincent explained the Town pit is operational and there are exceptions given to Towns. The regulations would indicate which criteria the Town needs to comply with. Town Planner Diane Hardy explained the Town is exempt from its own zoning regulations, with some exceptions. The Town must comply with state, federal and environmental regulations. She discussed provisions in the Aquifer Protection District Ordinance that would apply to the pits including disposal, storage and staging of material. Hazardous waste management is the jurisdiction of NH DES.
Val Shelton asked if the grandfathered pits were exempt from regulations. Chairman Badger explained grandfathered sites are not exempt from the regulations; they are exempt from the permitting process. Code Enforcement Officer explained pits in existence prior to 1979 are grandfathered for their locations; however, state operational standards still apply.
Chester Jablonski noted the gravel pit across from the Rosas being used for trailer storage. Most of the land is located in Durham. He asked if that location would affect the aquifer. Code Enforcement Officer Dan Vincent noted the aquifer could be affected if there was a fuel spill. That location may come under regional impact. Town Planner Diane Hardy explained, if a project was expected to have regional impact, surrounding communities were informed. She noted the Strafford Regional Planning Commission could act as a liaison. Wayne Rosa pointed out that land was located in Lee not Durham.
Code Enforcement Officer Dan Vincent noted Mary Currier from Rockingham County Conservation District has offered to assist the Town in their endeavor. He did not feel it was an unreasonable request to ask pit owners to provide up to dated reclamation plans.
Chairman Badger noted if the Board agreed, the Town would ask the same information from all pit owners. He asked what the Board could do to assist with this process and what the time frame would be. Code Enforcement Officer Dan Vincent explained there is language in three separate documents that grants the Planning Board the authority to request additional information from the pit owner. He asked the Planning Board to require pit owners to provide the criteria listed “A” through “I”, as previously discussed. He felt requiring this information to be presented within 90 days was appropriate. Nothing being requested was outside of state regulations.
Val Shelton questioned whether the Board could impose regulations, as RSA 155:E (11) states no regulation shall supercede this one. Chairman Badger explained the Board would not be adopting regulations. The Board would be requiring information that is already included within the regulations. The Board would be asking for acknowledgement the pits are in compliance with State mandated regulations. The grandfathered pits are only exempt from the permitting process; they are not exempt from compliance.
The Board discussed whether they had the authority to impose such compliance documents to be presented. Town Planner Diane Hardy noted she had two letters from legal counsel she could make available to the Board, although she did not feel they would completely answer the Board’s questions. Code Enforcement Officer Dan Vincent explained Towns are permitted to making the standards stricter than State regulations. The Aquifer Protection District Ordinance states there shall be no excavation below four feet above the seasonal high water table.
Chairman Badger noted he had not anticipated allowing public comment as this was a discussion between the Board and the Code Enforcement Officer. He would allow public comments.
Chairman Badger opened the floor to public comments at 7:42 p.m.
Leo Filion, of 3 Lafayette Road, suggested this was like requiring all site plan and subdivision plans to come back before the Board in order to comply with all new regulations. He explained even grandfathered gravel pits have had their reclamation plans approved by the Planning Board. He felt if the Board supported this idea, they would be changing what had been approved 15 years ago. He noted he had been part of the Selectmen in 1989 when RSA 155:E had been adopted; he has been following gravel pits ever since. He felt grandfathered pits only needed to comply with 155-E:4, 155-E:4-a, 155-E:5 and 155-E:5-a. He noted there is no mention that grandfathered pits need to comply with the seasonal high water table requirement. The Planning Board had made many judgments between 1990 and 1993 regarding pits including allowing pit owners to make agreements with each other to excavate the entire area rather than creating individual “bath tubs.”
Chairman Badger asked if Leo Filion was suggesting three of the four pits would not be subject to compliance. Leo Filion answered he did not feel grandfathered pits should be subject to new regulations. The RSA clearly spells out which regulations grandfathered pits must comply with. Grandfathered pits are exempt from local regulations; they only need to comply with the specified regulations as required by the State. The Planning Board asked pit owners to abide to a 2 to 1 slope; pit owners had agreed. Reclamation plans are a matter of record filed here at the Town Hall.
Town Planner Diane Hardy explained the Aquifer Protection Ordinance had been adopted in 2000/2001. The ordinance discusses annual compliance, seasonal high water table, test pit requirements and the reclamation of disturbed areas.
Leo Filion asked if the Board was familiar with what the seasonal high water table is. He explained the table goes up and down and can take many years to determine. He asked what would be done with a pit that is already ten feet below the seasonal high water table.
Wayne Rosa, of Wadleigh Falls, noted his pit had complied with criteria “A” through “I” in 2003. He did not feel he needed to comply with it again. He understood what Leo Filion was feeling; bed pit bottoms have been established. He didn’t feel it was fair to come back 15 to 20 years later to change the rules. He asked if they would ask every subdivision that has been approved for the past 50 years to come back for re-approval if there is a problem with drainage. He suggested it would not be fair or practical to continue asking them to comply with new regulations.
Vice-Chairman Roy asked for clarification as to whether the seasonal high water table varies. Wayne Rosa explained the seasonal high water table does vary; the reading this year may be different than 2003, which would be different than 1993.
Chairman Badger explained Code Enforcement Officer Dan Vincent had proposed this to the Planning Board; the Board is not adopting anything yet. The Board is not making new rules. He understood Code Enforcement Officer Dan Vincent’s concerns; there is conflict between State and local regulations, what is permitted, grandfathered and what grandfathered pits need to comply with.
Wayne Rosa suggested it was crazy to require test pits yearly; he asked why it would make sense to dig into areas that have already been reclaimed.
Code Enforcement Officer Dan Vincent explained the Town of Newmarket has been discussing water supply. His concern is with protecting the water supply. He is suggesting the Town be aware of how much material is being removed, how much material is left to remove and whether there will be sufficient material for reclamation. He felt this information was important to the protection of the aquifer.
Janice Rosa noted, at one of the October workshops, the Board had asked pit owners to express their concerns, as a gravel pit owner she expressed her concerns with the expense these new requests would add. Chairman Badger welcomed Janice Rosa’s comments, but suggested if she wished to provide additional comments, he would ask her to consider recusing herself from the Board and becoming a member of the public for this discussion.
Wayne Rosa noted he would ask for the opportunity to explain what goes on at a gravel pit during excavation and reclamation, so the Board would have a better understanding. Without insulting the Board he suggested most members probably do not understand what goes on. He understood Code Enforcement Officer Dan Vincent’s concern regarding the aquifer. He added no material from the downtown reconstruction had been brought to his site.
Leo Filion expressed his concern with the bonding recommendation. He suggested former Town Administrator Frank Edmonds (1991-1993) and Town Engineer Dave Walker had proposed reclamation bonding for all pits. Legal counsel had stated bonding could not be required on existing pits.
Chairman Badger closed the floor to public comments at 8:09 p.m.
Val Shelton asked if the Local Government Center (LGC) could assist with determining whether adopting regulations that apply to all pits would be in compliance with RSA 155-E. Chairman Badger reiterated the Board is not adopting regulations. The question for legal review would be whether the Town ordinances apply to all pits including grandfathered pits. Town Planner Diane Hardy noted the LGC is available as a resource; she would consult with them about the issues before the Planning Board. If the Board requested a specific legal opinion, the LGC would recommend the Board seek their own legal counsel. She felt Janice Rosa’s suggestion about a work session to discuss this further would be a good idea. That would provide the Board the opportunity to hear from gravel pit operators. She suggested the information presented would help the Board determine what is reasonable.
Chairman Badger suggested Town Planner Diane Hardy contact the LGC. He suggested a work session in January. Rick McMenimen referenced the legal letters Town Planner Diane Hardy had referred to earlier in the meeting. Town Planner Diane Hardy noted the legal letters pertained to specific requirements that are applicable and what the Town could enforce if it chose. Chairman Badger suggested there is disagreement between what the Town can and can not require. He suggested getting a third party opinion from the LGC. He asked Code Enforcement Officer to attend the January meeting to provide input and information.
Report on Historic District Ordinance, clarification of subcommittee assignments, and discussion of future work sessions.
Chairman Badger explained, at the November 18, 2008 meeting, the Planning Board had established a subcommittee to address the request from the Town Council to work on a historic district ordinance. Three people had volunteered; since that night other Board members had expressed their interest. He suggested the Board take this project on as a full board and operate work sessions similar to what they had done for the M-1 rezoning.
Rick McMenimen noted he had met with Val Shelton, Janice Rosa and Town Planner Diane Hardy. They had looked at everything and had suggested holding a public forum. All interested parties would be invited to provide input on the proposed ordinance.
Vice-Chairman Roy suggested inviting the two people the Advisory Heritage Commission had specifically mentioned, who could provide a great deal of knowledge. He suggested these two individuals may be able to address the questions raised by the public and the Board. Town Planner Diane Hardy noted two individuals were invited previously to town meetings on the subject, from the State Office of Historical Resources and a statewide non-profit group called, NH Historic Preservation Alliance. There had been a joint workshop two years ago that had provided some very valuable information.
Janice Rosa asked if this should be put to the public as a warrant article for vote prior to the Board beginning its discussions. Chairman Badger understood the Board would follow the same process it had taken with the M-1 rezoning. There would be workshops, public hearings and a recommendation to the Town Council. The Town Council would then determine whether to continue moving it forward; a public hearing would be held, there would be a first reading and then vote. There would be many opportunities for the public to provide their input; he hoped residents and business owners took those opportunities to come express their thoughts. He noted Phil LePage, Chairman of the Advisory Heritage Commission had made a presentation to the Planning Board, then to the Town Council, stating the Advisory Heritage Commission hoped for Certified Local Government status (CLG) from the National Park Service (NPS). He had searched this on the internet (acknowledging not all information can be trusted) and explained communities who have CLG status have the opportunity to apply for state and federal funds through the State Historic Preservation Office (SHP)). There are four things needed to reach CLG status: a preservation commission has been established; the Town has a local historic district ordinance; an active survey of local historic resources needs to be maintained; and the community must participate in the national register nomination process. The Planning Board has been charged with presenting the Town Council with a recommendation on the proposed ordinance.
Chairman Badger suggested work sessions and public input was the appropriate way to approach this project. Val Shelton agreed expressing her concern with setting a precedent with sending this decision to a warrant article. Janice Rosa felt this should be voted on by the people; it would impact many people. Vice-Chairman Roy suggested people would have many opportunities to express their thoughts and concerns. Val Shelton added the Board would hear public input. There also would be the ability for residents and property owners within the district affected by the ordinance to petition it. Town Planner Diane Hardy agreed the residents and property owners could present a protest petition.
A work session was tentatively scheduled for January 13, 2009. Town Planner Diane Hardy would check with Sue Jordan to see if there was a conflict and would confirm with Planning Board members. She noted during the subcommittee meeting they had discussed outreaching to as many people as possible. She suggested using the mailings the Advisory Heritage Commission had used for a future public forum. Chairman Badger agreed stating there needed to be as much public input as possible. Val Shelton asked if it would be wise to send letters to property owners; given the limited attendance by property owners at the historical district workshop she questioned how owners had been notified. Vice-Chairman Roy suggested working with the Newmarket Business Association. Town Planner Diane Hardy stated the NBA could be included. She has been in touch with Gerry O’Connell who has expressed interest in participating in the work sessions.
Rick McMenimen recommended all discussions flow through the Chairman during the work sessions as opposed to cross discussions.
Janice Rosa questioned the order of the agenda noting there were applications on the agenda that had not yet been addressed. Chairman Badger noted they had asked for a continuance.
Public Hearing for an application for Special Use Permit, as defined in Section 5.03 of the Newmarket Zoning Ordinance
Applicant: Moody Point Company
Location: Osprey Lane, Tax Map R2, Lot 5-1-1 & 5-1-2, Zone R1.
Description: The application requests authorization to impact a small, isolated, and low quality man-made wetland as part of development plans for two previously approved house lots. The applicant proposes to construct one two-family residence on each of the previously approved house lots.
Status: Continued from November 18, 2008, Application Acceptance
Public Hearing for an application for Special Use Permit, as defined in Section 5.03 of the Newmarket Zoning Ordinance.
Applicant: Moody Point Company
Location: Cushing Road, Tax Map R2, Lot 2-7, Zone R1.
Description: This application requests authorization to impact a small, low quality wetland as part of development plans for the previously approved houselot. The applicant proposes to construct a two-family residence on the previously approved house lot.
Status: Continued from November 18, 2008, Application Acceptance
Chairman Badger noted there has been a request to continue these two applications.
Susan Rice, representing Moody Point Company, explained Michael Parsont Senior Wetlands Scientist, had submitted a letter to Town Planner Diane Hardy this afternoon requesting the above two applications be withdrawn. She read the letter into the record.
Town Planner Diane Hardy noted she had not received the letter. Chairman Badger noted it was his understanding the request had been for a continuance. Susan Rice then submitted a copy of letter requesting the two applications be withdrawn.
Continuation of a public hearing regarding the possible rescission of a conditional subdivision approval granted to Walter Cheney.
Location: Cushing Road, Tax Map R2, Lot 36-13, Zone R1.
Description: The proposal is to subdivide the 71.65 acres into two lots: one 67.75 acre tract running parallel to Lubberland Creek to be conveyed to The Nature Conservancy; and the remaining land of 3.9 acres (170,708 square feet) to remain in the ownership of Walter Cheney.
Status: This application was heard and conditionally approved at a public hearing on March 18, 2008. New information has become available which raises questions regarding whether Lot 13 can be legally subdivided. December 16, 2008. Compliance Hearing
Susan Rice understood there was something about this subdivision that had been continued to December 16th. Chairman Badger answered this application had scheduled for a compliance hearing and the period for meeting the conditions of approval had been extended for another month, to December 18, 2008
Mike Watson, of Cushing Road, asked for clarification on the applications that had been withdrawn. Chairman Badger explained both applications requesting Special Use Permits for Moody Point had been withdrawn. If the applicant wished to move forward on the project, they would need to reapply to the Planning Board.
Chairman Badger explained the Board, at the last meeting, had scheduled a compliance hearing for Lot 13 located at Cushing Road for December 16, 2008.
Review and Approval of Minutes: 10/14/08, 10/22/08, 11/18/08
October 14, 2008
Town Planner Diane Hardy explained she had received editorial changes from Board members; these minutes reflect those changes. Clarification has been provided for the motion questioned at the last meeting. The motion on page 8 was seconded by Rick McMenimen and voted unanimously in favor.
Vice-Chairman Roy asked why the Smith property had been granted a three year time frame for reclamation. Town Planner Diane Hardy noted the Board had granted approval within the guidelines of State law. The reclamation must begin within one year from the date last excavated and must be complete within two years of beginning reclamation.
Action
Motion: Janice Rosa made a motion to approve the October 14, 2008 minutes as amended.
Seconded: Vice-Chairman Roy
Vote: All in favor
October 22, 2008
Town Planner Diane Hardy explained editorial revisions have been made. This was the site walk for the Brandt Development.
Action
Motion: Janice Rosa made a motion to approve the October 22, 2008 site walk minutes as amended.
Seconded: Rick McMenimen
Vote: In favor: Chairman Badger, Judith Carr, Rick
McMenimen, Janice Rosa Vice-Chairman Peter
Roy, Val Shelton
Opposed:
Abstained: Chester Jablonski
Chester Jablonski abstained from voting because he had not been present at the site walk.
November 18, 2008
Town Planner Diane Hardy explained the editorial modifications have been made.
Action
Motion: Rick McMenimen made a motion to accept the November 18, 2008 minutes as amended.
Seconded: Chester Jablonski
Vote: In favor: Judith Carr, Chester Jablonski, Rick
McMenimen, Janice Rosa Vice-Chairman Peter
Roy, Val Shelton
Opposed:
Abstained: Chairman Badger
Other Business
Chairman Badger noted the Planning Board typically meets the second Tuesday of the month. In March, April and May the Board will be meeting the third Tuesday.
Chairman Badger noted there will be a site walk this Saturday at 9:30 a.m. to look at Moody Point Lot 13. He, Val Shelton and Vice-Chairman Roy will not sit in on the discussion. He would ask George Willant to chair the compliance hearing scheduled for December 16, 2008. He would expect Rick McMenimen and Adam Schroadter to sit in as voting members.
Town Planner Diane Hardy asked Susan Rice if she would be joining the Board on the site walk. Susan Rice explained this was the first she had heard about the site walk. She would bring the information back to Mr. Cheney. Town Planner Diane Hardy noted, if this was not a convenient time, the Board can observe the property from the road and abutting properties. Chairman Badger asked if the Board requires an invitation by the applicant to perform a site walk. Town Planner Diane Hardy answered as part of the application process, applicants usually give permission. She would check the file for this application.
Chairman Badger explained the site walk and compliance hearing would both be public meetings.
Chairman Badger noted the Rules of Procedure have not been reviewed for a while. He suggested it would be appropriate to review the Rules of Procedure to ensure they are up to date. He noted he, Janice Rosa and Vice-Chairman Roy had attended a training in Manchester; there had been another training at Loon Mountain. It would be important to ensure the Planning Board was current with the information gathered at these training programs. He felt a subcommittee would be the fastest way to review the rules of procedure.
Chairman Badger, Chester Jablonski and Val Shelton formed the subcommittee to review the Rules of Procedure with Diane Hardy.
Chairman Badger explained it was important for Board members to remember any discussions pertaining to applications must be done in the public arena. Any information received must be brought forward publicly.
Rick McMenimen noted he had attended a workshop for the Strafford Regional Planning Commission (SRPC) on November 20, 2008. He would provide copies of information discussed to Town Planner Diane Hardy for distribution. Steve Couture and Wayne Ives from the NH DES had spoken at the workshop.
Janice Rosa asked what the status of the Gaziano application was. Judith Carr answered the Town Council has it on the agenda for next week’s meeting. Val Shelton asked if a member from the Planning Board should be there to answer questions the Council may have relative to the comments the Planning Board had provided. Judith Carr felt it could be a sticky discussion and felt it would be helpful to have representation from the Planning Board. Town Planner Diane Hardy and Val Shelton volunteered to attend the meeting.
Chester Jablonski referenced the land behind the elementary school explaining the School Board was looking into acquiring that land for athletic fields. They are working with Town Planner Diane Hardy and an attorney. He has been working closely with Zoning Administrator Dan Vincent, Steve Rochelle and Mark LaRoache.
Chairman Badger asked if the land would be purchased or if an easement would be acquired. Chester Jablonski answered the land would be acquired through easement. Deed ownership would be determined. He believed Mr. Cheney owned the property currently.
Adjournment
Action
Motion: Rick McMenimen made a motion to adjourn at 8:53 p.m.
Seconded: Janice Rosa
Vote: All in favor
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