DRAFT MINUTES

Town of Newmarket, New Hampshire

Conservation Commission

November 13, 2008 7:00 PM

Town Council Chambers

Chairman Bruce Fecteau called the meeting to order at 7:04pm.

1. Pledge of Allegiance

2. Roll Call

Present:          James Bergeron, Chairman Bruce Fecteau, George Hilton, Jr., Vice-Chairman Ellen Snyder

 Absent:          Amy Buxton-Jewell, Fred Pearson (excused), Val Shelton,

3. Public Comments

None.

4. Approval of October 9, 2008 Minutes

Vice-Chairman Snyder noted on Page 3, fourth paragraph, fourth line, “Newmarket representative” should be “Newmarket Conservation Commission representative” since Sarah Callaghan does attend the meetings in Newmarket’s interest. Also on Page 3, next major discussion, it should indicate Conservation Commission minutes had been submitted to the Planning Board. On Page 5, second paragraph, the last sentence which read: “She suggested most of the trail could be mountain biked” should be deleted as only the north and south trails allowed mountain biking. On Page 6, third paragraph, it should be clear the dams being discussed are man-made dams, not beaver dams.

Motion: To accept the October 9, 2008 minutes as amended.

Motioned: James Bergeron

Seconded: Vice-Chairman Snyder

Vote: All in favor

5. Review NHDES Wetlands Bureau Application

Chairman Fecteau noted there are two wetlands applications and two special use permit applications before the Commission tonight.

Sergio Benia noted he was accompanied by Mike Farce, both New Hampshire State certified soil scientists who were here on behalf of Moody Point Company regarding Lots 27 and 5-11/5-12. These applications had originally been submitted in 2005 with Conservation Commission support. In February 2007, these applications had been withdrawn due to extenuating circumstances and rule changes. New applications would be presented with identical designs as were supported by the Conservation Commission in 2005.

Mike Farce gave each member of the Commission a copy of the letter the 2005 Conservation Commission had submitted in support of the project. He reiterated the designs for the project are identical to what had been supported by the Commission in 2005, but the application process had changed slightly; there had been no requirement for a Special Use Permit in 2005.

Sergio Benia referenced the subdivision plan for Moody Point indicating there were a couple undeveloped lots left.

George Hilton, Jr. recalled the two lots in question were the same lots that had created quite a stir in 2005 with abutters. He explained there had been an outpouring of abutters on this application at the meeting and at the site walk.

Sergio Benia explained the project showing where the isolated, man-made wetland was located. This wetland was created out of poor stock pile management causing infiltration and ponding water. A Function and Values Assessment of the wetlands had been done in 2005 resulting in minimal function and value of flood flow alteration and sediment intoxication retention. These characteristics would be maintained under the proposed conditions. He discussed the drainage design including catch basins, and swale.

Mike Farce explained community ownership and showed the open space land. He explained a permit would be required for the temporary impact within the 20’ buffer of abutting properties for the construction of the building. Once the construction was completed, the wetlands would be restored to preconstruction state. He discussed the delineation of the wetlands indicating they were mowed regularly during the dry times of the year.

Sergio Benia discussed storm water and roof run off retention and treatment. A standard NHDES Wetlands Bureau dredge and fill application would be submitted. He referenced the criteria that must be met according to Section 5.03F, Wetland Protection Overlay District. The wetlands cannot be located within 150’ of the Great Bay, Lamprey River, Piscassic River or Follett’s Brook. He explained the wetlands are greater than 200’ from the shoreline of Great Bay. The next criteria requires the applicant to prepare a mitigation proposal, upon consultation with the Newmarket Conservation Commission, that provides for increased wetland buffers elsewhere on the site that surround a wetland of greater size of functional value than the impacted wetland. He explained there is 132 acres located on the waterfront with approximately 4300 linear feet of shoreline that has been protected in its natural state. The third criteria requires the applicant to provide perpetual protection of an area of off-site wetlands of a greater area and equal or higher functional value located in an Open Space Priority Area as denoted in the Newmarket Open Space Conservation Plan in a way that is proportional to the size and functionality of the impacted wetlands. He explained Moody Point Company is negotiating with the TNC on an easement for protection of the shoreline. The applicant must provide the Planning Board with written comments on the proposed mitigation proposal from the Conservation Commission. He hoped the Conservation Commission would provide favorable comments so that can be discussed at the Planning Board meeting on November 18, 2008. The last criteria requires any mitigation proposal submitted to the Planning Board to attest to the other criteria and shall be completed under the authority and certification of a NH Certified Wetlands Scientist using standard-accepted scientific methods. He explained the proposed mitigation plan has been prepared under the supervision of a Certified Wetlands Scientist. He felt the application has met the requirements as set forth in Section 5.03F.

Vice-Chairman Snyder noted the mitigation proposed already exists. She asked if the easement needed to be approved before approvals for the project could be obtained.

Mike Farce agreed the mitigation measures exist, but added these are grandfathered lots under grandfathered protection. He noted the Planning Board would indicate whether the easement needed to be in place. The State would not require mitigation measures because the project is under the threshold that requires mitigation.

Sergio Benia added the Planning Board may grant an approval with draft easement documents.

Chairman Fecteau explained the Commission had performed a site walk when this project first came to them in 2005. It was obvious at that time there had been poor construction maintenance when the materials had been stockpiled. There had been quite a bit of public comment at that time with regards to wet areas and wet basements. This proposal added two additional catch basins to help mitigate those concerns.

Mike Farce agreed stating the final design submitted to the State had incorporated public comments and concerns. This is the exact same design originally submitted. The two catch basins proposed would ensure there would be adequate collection and flow to eliminate any flooding concerns.

Chairman Fecteau asked if the outlined area was the building outline or the buildable area outline.

Mike Farce answered the boundary outlined needs to hold in order not to go within the 20’ state required buffer. The outlined area is the buildable area. He was not sure what the footprint of the building would be. He discussed the drainage design stating it would tie into the existing system.

Vice-Chairman Snyder referenced the letter the Conservation Commission had written in 2005 and asked about the Fish & Game concern about the eagles.

Mike Farce answered the Natural Heritage Bureau had been concerned about the wintering of bald eagles during 2005. This was not a concern in 2008. There had also been concern about trees along the shoreline. There would be no impact to the shoreline or the wildlife species in Great Bay.

George Hilton, Jr. felt the Commission should support the project as it is the same project they supported in 2005.

James Bergeron agreed.

George Hilton, Jr. added that he anticipated the developer would not deviate from the architectural design of the buildings that were there now.

Mike Farce asked how the Conservation Commission handled Special Use Permits.

Chairman Fecteau noted not many Special Use Permit applications come before the Conservation Commission.

Mike Farce asked that a letter be provided to the Planning Board in support of the project. This is an unusual situation as this is not a new mitigation plan. The original concept outline had been proposed and in place since the 1980s.

Chairman Fecteau asked if the Commission members felt a site walk was needed.

Vice-Chairman Snyder noted she would like to encourage the easement on the other land to ensure protection.

Mike Farce explained that would be taken up at the Planning Board. The same land would be preserved, but rather than preserved in good faith, it would be preserved under a conservancy entity and would be preserved in perpetuity. The owner of the land, Walter Cheney wanted it this way.

Motion: For the Conservation Commission provide a letter of support for the dredge and fill application #2008-02308 for Moody Point Company for Lots 5-11/5-12, support the Special Use Application for the Town of Newmarket and to encourage the applicant and Town to work on additional mitigation in the form of a conservation easement.

Motioned: Vice-Chairman Snyder

Seconded: James Bergeron

Vote: All in favor

Chairman Fecteau noted James Bergeron would be writing the letter and reminded him the Planning Board met next Tuesday, November 18, 2008.

Mike Farce noted these applications were on the agenda.

Sergio Benia went on to the next application, discussing Lot 27. The resource area within the lot is low quality wetlands which are mowed regularly.

Mike Farce discussed the seepage evaluation stating there is no function or value of the wetlands. There is limited groundwater discharge.

Sergio Benia explained there is one 2-family unit proposed. Drainage has been designed around both sides of the proposed unit. He explained the water management process including piping, catch basins and swales. The easement over the gravel drive for access to the detention pond would not be affected. There is dense vegetation in the swale.

Vice-Chairman Snyder asked if the detention pond had been designed to accommodate all the lots.

Mike Farce explained the detention pond had been oversized in its design and build out. He gave a brief history of the Moody Point area explaining the subdivision had been approved in the 1980s, had undergone a change of ownership. There is more development than had been originally proposed. The detention pond size is sufficient to handle the build out plus.

Vice-Chairman Snyder asked if the wetlands had been created due to the construction or if they had been natural wetlands prior to the construction.

Mike Farce explained that was difficult to determine as the entire area had been disturbed through soils having been moved and pushed to other locations.

Sergio Benia explained the project would fulfill the mitigation criteria set forth in Section 5.03F. When this project was originally subdivided, the intent had been to mitigate the entire Moody Point subdivision. He referenced the criteria as previously stated for Lots 5-11/5-12 stating this wetland was even further from Great Bay. Negotiations were underway to provide an easement for protection through deed restrictions and covenants which would be provided to the Rockingham County Conservation Commission District.

Mike Farce explained this was why the two applications were being submitted together. The State has a cumulative impact requirement. The State will review both of the applications at the same time and would recognize the cumulative impact of both applications. The totals are reflected in both applications and both applications reference each other.

Vice-Chairman Snyder asked if the Conservation Commission had walked this site as well.

Chairman Fecteau noted there had been a lot of running water everywhere with slight flow. There had been no erosion.

Mike Farce explained every subdivision had gone before the Planning Board. Wetlands rules had not been existence at the State and Federal level until 1991. It is tough to locate the original plans because the Town Hall had burned down. Aerial photos have been reviewed as well as past evaluations. This preservation is greatly important to Great Bay.

Sergio Benia explained Walter Cheney, the owner of the property, had consulted with numerous UNH professionals, local staff and conservation officers to ensure the plans were adequate for protection of the natural resources.

Mike Farce agreed stating there was a lot of historical information within this application. Walter Cheney had gone above and beyond what was expected when there weren’t any requirements to do so in the beginning of this development. This area has been preserved effectively. It is an important resource for wildlife in the Great Bay area.

George Hilton, Jr. noted the Commission had approved this three years ago. He asked why nothing had been done with the approval.

Mike Farce explained the applications had been withdrawn because the DES Wetlands Bureau was going to deny them for lack of sufficient information. They had been inundated with requests from Moody Point residents to address and fix the drainage problems occurring within the development. This process began in 2005; many extensions had been approved. In early 2007 there still was no answer and no more extensions would be granted; rather than allow the DES Wetlands Bureau to deny the application, they withdrew it. The drainage issue has been addressed, so the applications could be resubmitted. Since the original submission, rules have changed and a special use permit was also required. If the applications submitted to the Wetlands Bureau are approved, Moody Point Company will be responsible for fixing the drainage. Jones & Beech Engineers are actively working toward resolving the drainage issues. The overall issue is the drainage system had been done piecemeal by different developers; it was not one, overall flowing design.

Chairman Fecteau asked if two letters were requested.

Mike Farce explained there had been one letter last time. He didn’t think it would matter either way as DES would be reviewing the applications together.

James Bergeron felt it would be better to submit two letters.

Vice-Chairman Snyder noted she would like to see the easement and drainage issues addressed more directly.

Mike Farce stated it should not be the responsibility of the owners of the lots to fix the drainage issues.

Vice-Chairman Snyder acknowledged the statement but added if this application was approved, it would add to the problems.

Mike Farce noted tying the repairs to the drainage system of the subdivision to the approval of these applications was inappropriate. There is a legal agreement that could be muddied if it was required to correct the drainage in order to develop this lot.

Chairman Fecteau noted the open space was part of the original agreement of the area.

Vice-Chairman Snyder noted cluster development protection of the open space was great; filling the wetlands was a separate mitigation issue. She felt the area needed to be conserved permanently.

Chairman Fecteau suggested the two letters submitted by the Commission read the same regarding mitigation.

Motion: For the Conservation Commission provide a letter of support for the dredge and fill application # 2008-02309 for Moody Point Company for Lot 27, support the Special Use Application for the Town of Newmarket and to encourage the applicant and Town to work on additional mitigation in the form of a conservation easement.

Motioned: Vice-Chairman Snyder

Seconded: George Hilton, Jr.

Vote: All in favor

James Bergeron noted he would submit a copy of the letters to the Planning Board, State and Mike Farce prior to Tuesday’s Planning Board meeting.

6. Treasury Report

James Bergeron explained Finance Director Don Parnell is gone all week to a conference so he had been unable to get the most recent information. He had spoken with Finance Director Don Parnell and had seen a basic, one page information summary of accounts. He would email this to everyone on Monday, after Finance Director Don Parnell gets back.

7. Committee Reports

            a. Land Stewardship – Vice-Chairman Snyder

Vice-Chairman Snyder stated she is still working on the signs for the Wiggin Farm Kiosk. She handed out the information she is planning for the sign. She discussed Infinite Imaging, who was capable of creating an aluminum sign which would include text and maps. She showed an aerial photo of the area stating the trails, snow mobile corridor, parking area, informational kiosk and gate. She discussed the information on the front and back of the kiosk. It was recommended to put lexon over the aluminum to keep the aluminum from scratching. She estimated the cost of the signs to be about $700; this would include the layout, creation and the lexon. She referenced the new Southeast Land Trust sign on Bald Hill Road noting it was bold and looked good.

Chairman Fecteau asked about the note to keep dogs on trails between April 15^th and August 1^st.

Vice-Chairman Snyder answered that was due to birds nesting.

George Hamel, Jr. suggested looking at Infinite Imaging for the sign recognizing Wil Hamel’s dedication to the Town. The Conservation Commission has approved the sign, but not funding. The sign should recognize Wil Hamel’s years of service to the Newmarket Conservation Commission from 1999 until 2008.

Vice-Chairman Snyder stated she would speak to Infinite Imaging about the sign.

Motion: To expend an amount not to exceed $700 to complete the signs for the kiosk located at Wiggin Farm. This amount would include the design and creation of aluminum signs as well as the lexon to protect the sign.

Motioned: George Hilton, Jr.

Seconded: James Bergeron

Vote: All in favor

Vice-Chairman Snyder noted she and James Bergeron had made a list of items they felt needed to be done at the Piscassic River/Loiselle property. Ideas include more clearly identifying the boundary between the conservation area and Lot 91, erect a wooden split rail fence to delineate the parking lot and entrance, move existing arbor vitae to border with the neighbor and add additional trees to mark the boundary, complete the kiosk roof, create educational maps and signs for the kiosk, create a road side sign, install posts and bluebird boxes along the field boundary line and add trail arrows.

Vice-Chairman Snyder and James Bergeron discussed the reasons they felt these tasks should be completed and the estimated costs associated with each.

Motion: To expend an amount not to exceed $3,000 for site improvements at the Piscassic River/Loiselle conservation area.

Motioned: James Bergeron

Seconded: Vice-Chairman Snyder

Vote: All in favor

James Bergeron noted the Commission had spoken briefly about needing a couple bridges on this property. He noted after speaking with a local saw mill, it was determined an Alaskan style saw would be needed. The saw mill had recommended white pine as it is rot resistant.

Vice-Chairman Snyder suggested creating benches also.

George Hilton, Jr. noted he would speak with Rick.

Vice-Chairman Snyder suggested Erik Sartel could help with placement.

Vice-Chairman Snyder suggested it was time for monitoring the Nostrom easement. She knew George Hilton, Jr. and Val Shelton had expressed interest. She would coordinate a time with them.

Vice-Chairman Snyder noted the Nature Conservancy is still finishing up with the negotiations for the Smith property. They hoped to close in December. The Town of Newmarket would receive the conservation easement at that time. The Town is also looking separately into acquiring the remaining five acres.

b. Open Space Commission

Vice-Chairman Snyder noted she is the Conservation Commission’s representative to the Open Space Commission. They had met this week. There was discussion about the lots on Lita Lane that had been acquired by bankruptcy being evaluated for use. The Conservation Commission, Planning Board, Town Council and Recreation Department would be involved in these discussions. Some of the areas on these lots are wet.

            c. Lamprey River Advisory Committee (LRAC)

Chairman Fecteau noted Sharon Meeker is the new Chairman. He has her contact information and would call her to check out the meetings.

8. Chairman’s Report

Chairman Fecteau explained the Wiggin Farm clean-up with the Boy Scouts had been a huge success. The Commission had received a letter from DES informing them of the improvements to be done at Leo Landroche Field B. He referenced a Stewardship of Conservation Easements conference being held in Rye, NH on November 19, 2008. He discussed several items of mail including a possible violation by Cheney East Corporation of Shoreland protection area located at Tax Map U4, Lot 4-2 that DES is taking care of. There is a Planning Board meeting on November 18, 2008 where NH Soils (who presented earlier this evening) would be presenting, as well as an application for an active gravel pit.  He noted there are grants available through the New Hampshire Estuaries Technical Assistance Program.

9. Old Business

Vice-Chairman Snyder referenced the draft letter she wrote to the Heritage Festival Coordinator regarding the Commission’s concerns and recommendations. She asked how the Commission felt about the Boat Ramp having been blocked off.

The Commission felt the Boat Ramp should remain open. They agreed to print the letter on Commission letter head for distribution.

10. New Business

Vice-Chairman Snyder noted the legislature had passed a bill updating Section 36-A relating to Conservation Commissions. She handed the updated document to each Commission member. She suggested in order for these changes to apply to Newmarket’s Conservation Commission, the Town needed to vote to pass two Warrant Articles. The first Warrant Article would be to allow funds to be used for projects outside of Town the Town would hold an interest in. The second Warrant Article was to allow funds to be given to a qualified organization to help with acquisition of property a qualified organization would hold complete interest in. She explained the Town had been operating under these guidelines, but in order to continue, the Town would need to vote. She suggested the Commission review the changes and discuss them in order to bring the Warrant Articles forward to the Town Council. These changes applied only to Conservation Commission funds, not Open Space funds as well. She is trying to get clarification from Carol Andrews as to whether the Open Space Commission is technically part of the Conservation Commission.

11. Non-Public RSA 91-A:3 II (d)

Motion: To enter into Non-Public RSA 91-A:3 II (d) real estate at 9:09pm.

Motioned: Chairman Fecteau

Seconded: Vice-Chairman Snyder

Vote: All in favor

Motion: To seal the Non-Public minutes for one year because the divulgence of the information would render the proposed action ineffective.

Motioned: Vice-Chairman Snyder

Seconded: Chairman Fecteau

Vote: All in favor

Motion: To leave Non-Public RSA 91-A:3 II (d) real estate at 9:18pm.

Motioned: Vice-Chairman Snyder

Seconded: James Bergeron

Vote: All in favor

12. Adjournment

Motion: To adjourn at 9:18pm

Motioned: Vice-Chairman Snyder

Seconded: James Bergeron

Vote: All in favor

Respectfully Submitted,

Erica Spechuilli