Present: Judith Carr (Town Council representative), Diane Hardy (Town Planner), Chester Jablonski, Rick McMenimen (Alternate), Janice Rosa, Adam Schroadter (Alternate), Val Shelton, George Willant
Absent: Chairman John Badger, Vice-Chairman Peter Roy
George Willant, acting as Chairman, called the meeting to order at 7:03 p.m.
Pledge of Allegiance
Public Comments
No comments.
Public Hearing to determine if the applicant has satisfactorily complied with the conditions imposed on a conditional subdivision approval granted to Walter Cheney on March 18, 2008.
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 as open space.
Status: This application was heard and conditionally approved at a public hearing on March 18, 2008. This is a compliance hearing pursuant to RSA 676:4 I.
Val Shelton recused herself from this agenda item.
George Willant provided a brief history of the application explaining the Planning Board had granted conditional approval of a subdivision of Lot 13 in the Moody Point development. Mr. Cheney came before the Board to offer approximately 67.75 acres to The Nature Conservancy. The remaining 3.9 acres, known as Lot 13-A, would be subdivided off the main parcel and put into conservation in perpetuity. The conditions placed on the subdivision approval were as follows:
Prior to the signing of the plans, that legal ownership documents be submitted to the Town for proposed Lot 13-A which defines the long-term ownership of the land, associated deed restrictions and other legal mechanisms which assures the maintenance of these lands, as common open space and conservation lands to be held in perpetuity, and includes provisions that in the event the association and other entity established to own and maintain these lands fails to properly maintain such areas, the Town may serve written notice upon the association or other entity pursuant to Section 3.14 (B) (7) of the Newmarket Subdivision Regulations to seek enforcement of these provisions under the authority of RSA 674:21 A.
A note be added to the plans, which contains appropriate references to the Warranty Deed of Walter W. Cheney to The Nature Conservancy which states that Lot 13-A will be maintained in perpetuity in its natural, forested, and open space condition with restrictions on the placement of buildings and other structures.
George Willant explained questions had come before the Board regarding whether the subdivision was legal. The Board discussed this with legal counsel and determined they could move forward on the application. There have been several continuances, most recently a meeting in November. Mr. Cheney has provided the Board with an ownership plan for Lot 13-A, which he feels satisfies the conditions of approval. The purpose of tonight’s meeting is for the Board to review the documents provided and determine whether the conditions of approval have been met, authorizing the Board’s Chairman to sign the plans, or whether the Board needs to move in a different direction.
Rob Miller from Sheehan, Phinney, Bass and Green of Manchester would be representing Walter Cheney and the Moody Point Company. He apologized for not being able to make last month’s meeting, as he was involved in a federal jury trial; the jury had been deliberating the night of the meeting. He is unable by law to leave the courthouse during jury deliberations. He noted he had provided the Board with a handout including an outline of the argument he would be making this evening and seven (7) exhibits he would refer to throughout the discussion. He believed the compliance hearing is procedurally improper under NH RSA 676:4. He read the Board’s procedures on plats: “The Planning Board can grant conditional approval to a plat or application which approval shall become final without further public hearing upon certification to the Board by its designee or based upon evidence submitted by the applicant of satisfactory compliance with the conditions imposed”. He felt there were three circumstances where this could happen. One of those conditions applies to this application, RSA 676:4, Condition 2, which states; “Conditions which are in and of themselves administrative and which involve no discretionary judgment on the part of the Board. He agreed there were two conditions attached to the approval given in March that legal documents be submitted defining ownership of the land and that a note be added to the plan. He felt both of those conditions are purely administrative in nature as evidence of the fact Town Planner Diane Hardy recommended both conditions to the Board and created the language of both conditions. He referenced an email sent to Mr. Cheney on May 5, 2008 from Town Planner Diane Hardy in response to the applicant’s request for approval in writing as to whether the conditions on the plan had been met. Town Planner Diane Hardy’s response in the email had been “you and I talked about this a couple of weeks ago, the language provided is fine.” He feels the conditions imposed were purely administrative and did not require further contemplation by the Board. As a result, these conditions were approved by this email.
Town Planner Diane Hardy noted she had asked for a deed for Lot 13 because Mr. Hyde from The Nature Conservancy had indicated there was language related to Lot 13-A. She had requested that information before the hearing; she had received the information the day before. This information was not presented as evidence that any condition of approval had been satisfied; the information had been presented due to her request for the deeds. She has not yet been provided a copy of the plan of ownership and legal documents that had been requested as of November. The e-mail response that Mr. Miller is referring to had nothing to do with satisfying the conditions of approval on the subdivision.
Rob Miller referred to an email from his client dated April 28, 2008 at 3:18 p.m. stating: “I left you a message today asking about the deed of Lot 13 at Moody Point. We had talked about it on the phone a ways back and we have been waiting for you to let us know if it meets the Town’s approval in writing.” Town Planner Diane Hardy felt this was a misrepresentation of the purpose of that e-mail. She noted, again, the e-mail did not have to do with the conditions of approval of the subdivisions. She noted the plan of ownership is deficient, as it does not fulfill the conditions of the Planning Board. It was her administrative position the conditions of approval have not been met.
George Willant added the e-mail to Town Planner Diane Hardy referred to Lot 13. The subdivision and conditions of approval refer to Lot 13-A. It was the Board’s position that a legal document for Lot 13-A has not been provided. Rob Miller referenced the draft deed noting The Nature Conservancy had drafted the deed. He read in part from paragraph three: “Accepting and reserving there from, but subject to the covenants and restrictions set forth below, a certain parcel of land referred to herein as the accepted parcel shown as proposed Lot 36-13A on the plan entitled Lubberland Creek at Moody Point Subdivision.” He felt this deed covered both Lot 13 and Lot 13-A.
Town Planner Diane Hardy noted she had not been aware the information had been submitted to the Board in compliance with the requirements for 13-A; it had never been presented that way. Her response did not constitute approval. She noted legal documents presented to the Town are forwarded for legal review. She cannot recommend adoption of the documents as presented.
Rob Miller reiterated the proposed draft deed drafted by The Nature Conservancy was intended to satisfy the condition of approval and by its clear language does govern both Lot 13 and Lot 13-A. Town Planner Diane Hardy reiterated she did not approve the plan.
Laura Spector from the Mitchell Municipal Group representing the Town of Newmarket clarified there was disagreement in the meaning of Town Planner Diane Hardy’s email. It was Town Planner Diane Hardy’s position that she did not approve these conditions as they relate to Lot 13-A. Rob Miller felt it was important that he be provided an opportunity to make a clear record for appeal. He reread Town Planner Diane Hardy’s response to the email.
Rob Miller argued under RSA 676:4 the administrative requirements of the conditional approval were satisfied and no further action is required by the Board.
Laura Spector felt the Board needed to determine whether or not it feels a compliance hearing is appropriate. It is her recommendation to the Board that it is appropriate because if the condition of approval had been merely submittal of the documents, the condition would have no meaning. Whatever documentation submitted needs to be reviewed by legal counsel and by this Board. George Willant agreed stating there is no sense in submitting material unless the Board has an opportunity to review the documents to see if they meet the intent of the Board.
Rob Miller questioned whether the Board has made its decision prior to the applicant being able to make their presentation. George Willant answered the Board will hear the applicant’s presentation. The Board has discussed with legal counsel some concerns, which had been forwarded to the applicant in a letter.
Rob Miller noted his point is there are two bodies that can attest to conditions being met, the Town Planner on the Board’s behalf if conditions are merely administrative. He felt this approval had been granted through Town Planner Diane Hardy’s email response. If the Board felt there was something that needed deliberation, then Town Planner Diane Hardy’s response would not stand and the applicant would have the opportunity to present their case.
Laura Spector did not feel Town Planner Diane Hardy was in a position to determine whether the documents submitted fulfilled the Board’s intent, as it was the Planning Board who imposed the conditions.
Judith Carr asked if it would be clearer if the Board took a vote. She did not feel the documents submitted met the conditions of approval.
George Willant appointed Adam Schroadter to sit in for Val Shelton and Rick McMenimen to sit in for Peter Roy.
Action
Motion: Judith Carr made a motion to hold a compliance hearing.
Seconded: Rick McMenimen
Vote: All in favor
Rob Miller urged the Board to remember the big picture stating this is clearly a case where personalities on both sides are getting in the way of a very positive outcome. He noted it was not unknown that Mr. Cheney is not the most popular person to some people. It also is not a mystery that Mr. Cheney and Town Planner Diane Hardy do not get along. George Willant interrupted noting at the last hearing that was held on this issue, he made it a point to inform the public there are a lot of emotions surrounding this issue. He felt the feelings about Mr. Cheney or the feelings between Mr. Cheney and Town Planner Diane Hardy were irrelevant. He asked Rob Miller to stick to the facts. Rob Miller explained he was trying to say exactly that; he hoped the Board and public could get past the personality issues in this case and get to the heart of the matter which is there is 69 acres of land having immense value riding on the outcome of this vote. This land has immense economic, but also ecological value, to The Nature Conservancy, to our children and our children’s children. This is an opportunity to preserve this land. He felt they were at a crossroad. He noted he did not mean that to be threatening in any way and did not want to be misunderstood but wanted to make reality clear. He urged each Board member to remember the big picture and what could happen to this large parcel of land.
Rob Miller noted there were two conditions of approval imposed in March. One was that legal documents be submitted to the Town for Lot 13-A. Mr. Jablonski made the motion. He read the conditions as follows:
Prior to the signing of the plans, that legal ownership documents be submitted to the Town for proposed Lot 13-A which defines the long-term ownership of the land, associated deed restrictions and other legal mechanisms which assures the maintenance of these lands, as common open space and conservation lands to be held in perpetuity, and includes provisions that in the event the association and other entity established to own and maintain these lands fails to properly maintain such areas, the Town may serve written notice upon the association or other entity pursuant to Section 3.14 (B) (7) of the Newmarket Subdivision Regulations to seek enforcement of these provisions under the authority of RSA 674:21 A.
A note be added to the plans, which contains appropriate references to the Warranty Deed of Walter W. Cheney to The Nature Conservancy which states that Lot 13-A will be maintained in perpetuity in its natural, forested, and open space condition with restrictions on the placement of buildings and other structures.
Rob Miller noted in the second condition, Lot 13-A should be Lot 13. George Willant disagreed stating the Board had made the condition indicating Lot 13-A. The Board felt the condition is written the way they wanted it written. Rob Miller did not feel that distinction would make a difference in his argument. It is clear the lot being given to the Nature Conservancy is Lot 13 not Lot 13-A. There are other restrictions that will apply to Lot 13-A referenced in the deed that was read into the record earlier. Town Planner Diane Hardy agreed there are restrictions that refer to Lot 13-A as stated in the deed.
Rob Miller addressed the second condition first stating that plan was submitted to the Town by Bill Doucet almost immediately. The three sections are located at the top of the plan. Town Planner Diane Hardy noted the plans have been revised within the past three weeks to accurately reflect what the record had stated. The original plan had a note on it, which stated “proposed deed restriction.” It had not been clear whether it applied to the deed Mr. Cheney was providing for the Nature Conservancy or whether it applied to all deeds. The intent of the condition was to ensure the plan properly referenced the deed. Rob Miller noted Bill Doucet had submitted the new plan to the Town. He asked if it was to the Town’s satisfaction. Town Planner Diane Hardy noted the Board had received the plan from Bill Doucet earlier this week. As of the timeframe of the referenced email, she did not have the revised plans to review. Rob Miller asked if the revised plans satisfy this condition. Town Planner Diane Hardy noted the revised plans do satisfy the second condition of the approval.
Rob Miller noted the first condition as reflected in the March minutes, was suggested by Town Planner Diane Hardy. The language was also created by Town Planner Diane Hardy. He felt the first condition had two requirements; that Mr. Cheney submit a legal document to the Town, which defines the long-term ownership of Lot 13-A.
Rick McMenimen asked if the Board had a copy of the March minutes, which are being referred to. He asked if Town Planner Diane Hardy was reading along to ensure what was being read was what had been written and was in context. He meant no disrespect by this question.
Rob Miller noted he had provided a copy of the minutes for each Board member as part of the packet he had submitted. The first legal document submitted to the Town was the proposed deed. He read from paragraph three of the proposed deed stating it makes clear “it accepts and reserves there from but subject to the covenants and restrictions as set forth below, Lot 13-A.” He noted the deed is conveying Lot 13 to The Nature Conservancy and is imposing restrictions on Lot 13-A. He referenced the second to last page of the deed noting there are two items called out; the accepted parcel shall be maintained in perpetuity in its natural forested and open space condition. View cutting within the accepted parcel is allowed subject to all Town, State and Federal regulations. The most onerous regulations in this case would be the Shoreline Protection Act, which is a provision of the New Hampshire Department of Environmental Services. The second point is the restriction on building: “No placement or construction of any building, home, tennis or other recreational court, swimming pool, fence, sign, asphalt or concrete pavement, billboard or other advertising display, antenna, utility pole, tower, conduit line, outdoor lighting or any other temporary or permanent structure or facility on or above the accepted parcel other than ancillary structures and improvements such as unpaved footpaths, fences, boardwalks, blinds for wildlife observation and wildlife nesting structures that are used solely for conservation, wildlife habitat management and or other recreational purposes.” He noted this is language drafted by The Nature Conservancy. The carve out has caused some concern. He read from the end of paragraph two: “provided however that the covenants and restrictions set forth in this paragraph shall not apply to that portion of the accepted parcel that lies within five feet of the accepted parcel’s common boundary with Lots 36-6, 3, 4, 5, 7, 8 and 9 and any physical encroachment into the accepted parcel from those lots. He understood there was a site walk on Saturday. The Board had an opportunity to view the illegal cutting and plowing of stumps into the bog. Those activities are what is trying to be prevented and what The Nature Conservancy does not want to have to police. This five-foot provision would help to eliminate that issue. He showed a stick five feet in length explaining it would be difficult to build on this amount of space; however signs, fencing and hedging could be put within this area as a buffer to prevent neighbors from intruding into this area. This is the reason this parcel is being requested to be retained.
Laura Spector asked why The Nature Conservancy was so involved in drafting the restrictions if they were not taking title to Lot 13-A. Rob Miller answered The Nature Conservancy is concerned with what the buffer zone looked like because it is sloped. If there is pollution, cut or not protected properly it can damage a very sensitive area. That is why they are concerned with what that buffer zone is used for. He noted Duane Hyde from The Nature Conservancy was present to answer the Board’s questions, if necessary. He went on to explain the proposed deed has been submitted, which is a legal instrument. The deed contains the restrictions and other legal mechanisms to ensure the maintenance of Lot 13-A as conservation land to be held in perpetuity. He felt the conditions attached to the approval of the plan in March have been met by these submissions. The conditions simply stated that legal documents be submitted.
Laura Spector asked why an ownership plan had been submitted in December (actually in November) if the applicant felt the submissions satisfied the conditions. Rob Miller answered that the applicant had not received word of approval, there was discussion back and forth between counsel, members of the Board and members of the community the submission had not been sufficient. In order to move the project along, they had made an additional submission.
Town Planner Diane Hardy noted she had recommended to the Planning Board as a condition to ask for a plan of ownership because she wanted to see it clearly defined who the owner of that land would be. With the documents to date including the deed that had been submitted, it is not clear who the owner of Lot 13-A would be. This is why she believes this condition has not been satisfied. George Willant questioned how there could be a warranty deed on two properties when someone else will own the other property. He agreed with Town Planner Diane Hardy stating there is no definition of who will own the property. He noted who would maintain the property has not been defined.
Rob Miller noted the deed submitted in March indicated Walter Cheney as the owner. He would remain the owner of Lot 13-A because this lot is not being conveyed to The Nature Conservancy. Lot 13-A will be retained by Walter Cheney subject to the conditions imposed by The Nature Conservancy which were the conditions expressed by interest of the Board. Town Planner Diane Hardy noted the developer is ineligible to own open space and conservation land under the terms of the original zoning ordinance and under the terms of subdivision regulations.
George Willant noted the Board had preferred the entire parcel go to The Nature Conservancy. Rob Miller agreed. George Willant went on to explain the Board had expected the piece carved out, because of the issues involved with the property would have the same restrictions and status as though it had been conveyed to The Nature Conservancy. It was not the Board’s intent for the developer to maintain ownership of the land. Rob Miller explained this deed accomplished that goal; the exact same conditions are imposed on Lot 13-A as are imposed on Lot 13. The only difference is Lot 13 is owned by The Nature Conservancy while Lot 13-A is owned by Walter Cheney. The conditions, covenants and restrictions are identical which is why both lots are contained within the same deed.
Laura Spector asked if The Nature Conservancy allowed view cutting on their property. Rob Miller answered that would be a case-by-case issue. View cutting would be allowed on Lot 13-A as it is spelled out in the deed. Laura Spector asked if The Nature Conservancy would allow view cutting on Lot 13. Rob Miller answered he did not know. That question would need to be asked to The Nature Conservancy; the question could also be asked whether timbering or forestry is allowed on their properties.
Rob Miller noted in June 2008 there was an e-mail he retrieved which was not maintained in the public file for this property but had been in Town Planner Diane Hardy’s private file for the property. Town Planner Diane Hardy noted she had readily made that email available. Rob Miller recalled having quite the disagreement over whether the email could be provided. Town Planner Diane Hardy indicated the email was correspondence sent to her from a lawyer; she was unsure whether the email could be provided publicly. Rob Miller noted none of the recipients had been represented by counsel; the email had been sent to resident of the Lubberland Creek Community Association. Town Planner Diane Hardy noted the email is available to the public.
Rob Miller noted there are several pages to the email but it makes clear there was an effort underway by Mr. Cheney to enter into an agreement with the Lubberland Creek Association to do a gift deed of Lot 13-A. He read: “we believe that establishing Lubberland Creek Association as owner of the property versus another ownership entity would be most beneficial to all Lubberland owners as there would not be any third party to deal with.” He went on to read: “We only wish to try and secure additional value and control beyond that which we currently own.”
George Willant asked what the purpose of this exhibit was. Rob Miller noted the question is why the Lubberland Creek abutters care about trying to acquire ownership of Lot 13-A and/or view easements over the lot. George Willant questioned the relevance of this with tonight’s discussion. Rob Miller felt it was relevant because it was a bone of contention between what the Board has indicated as its hesitation about the structure of the arrangement as it is now versus what the applicant would like to do. The applicant would like to do a gift deed of Lot 13-A to Lubberland Creek but would like to sell view easements before or after that is done. George Willant noted the Board made it clear in March the Board could not control who the land was given to. If Lubberland Creek wants to negotiate with Mr. Cheney that was their decision to make. Rob Miller asked if it was the Board’s position they did not care whether view easements were sold over Lot 13-A. George Willant noted he did not say that. He had questioned the relevance of this email. Rob Miller noted the intent of discussing this email was to show the applicant does not intend to hold the property.
Laura Spector felt the Board’s point was whether the view easements had value was irrelevant to whether or not granting view easements is consistent with conditions of approval. Rob Miller noted he was merely pointing out Mr. Cheney had been involved in discussions in June with the Lubberland Creek Association.
Rob Miller referenced a letter from November 7, 2008 sent to Town Planner Diane Hardy from Susan Rice, an employee of Mr. Cheney including the plan of ownership and conservation restriction. The plan of ownership and conservation restrictions is a legal document with the same restrictions drafted by The Nature Conservancy that were in the original deed and includes an abutter’s right to purchase a view easement from Mr. Cheney subject to local, State and Federal restrictions. This is an arrangement The Nature Conservancy is aware of and has approved. He felt this document clears up the issue of who would own the land. The Lubberland Creek at Moody Point Homeowner’s Association would get a one-year option to acquire Lot 13-A by gift title. There would need to be a deal agreement because a deal is contingent on the sale of these view easements. If that deal fell apart there was a similar one-year option available to the Moody Point Community Association, which would follow on the negotiations with Lubberland. The deal is contingent upon the sale of these view easements.
George Willant asked if each of these steps was contingent on the view easements. Rob Miller answered they were. Mr. Cheney is the lawful owner of Lot 13 and Lot 13-A; there is no obligation on those properties under the original subdivision plan. As part of the record of this proceeding, a large black binder had been submitted establishing the applicant’s position on Lot 13 and Lot 13-A. Laura Spector noted the Town felt under the original approval and regulations in force at the time there was an obligation for the land to be turned over to a homeowner’s association and not be further subdivided. The applicant felt Mr. Cheney has the right to do what he desired with Lot 13. Mr. Cheney has decided to give 69 acres to The Nature Conservancy and to deed by gift Lot 13-A to anyone willing to police it. He asks for the opportunity to make some money off it; which he feels is his right as owner of the land. If Mr. Cheney kept the land and did something else with it, he could make more money than what it being done with the land now.
Judith Carr asked what else could be done with the land. Rob Miller suggested portions of the land could be developed. Laura Spector stated the Board’s position is that nothing can be done with the land except conservation. Rob Miller noted somewhere down the road a court of law will determine which side is right if a reasonable agreement cannot be reached here tonight. This is why the applicant was before the Board, to stop that from happening and work out a solution that does not require an all or nothing outcome.
Town Planner Diane Hardy began reading the alternative design subdivision regulations that were in effect at the time the original subdivision was approved. Laura Spector noted it would not be fair for the Board to get into this discussion without allowing the applicant to do the same. She noted both parties recognize they have diametrically opposed views on this subject. Rob Miller agreed stating he and Attorney Spector have made a record on that. Town Planner Diane Hardy felt very strongly this is not consistent with the original intent of cluster zoning or the intent of the original subdivision.
Rob Miller noted there are three separate consecutive owners identified for Lot 13-A; Lubberland Creek, Moody Point Community or some other federal, state or municipal agency authorized to hold land for conservation purposes. A parcel like Lot 13-A is not easy to find a steward for as evidenced by what was witnessed on the site walk Saturday. The group that acquires this crescent of land is going to be responsible for ensuring the neighbors do not encroach onto this property. There is a natural tendency to encroach onto abutting land. This can’t happen with Lot 13-A because of the land it abuts.
Judith Carr asked why the applicant felt the Lubberland Creek residents would be a good steward for the land if it was felt these residents have already done illegal cutting. Rob Miller answered it would not be individual residents that would be stewards for the land. The association as a whole would be stewards of the land and would be responsible for what happens to the land. He was not suggesting cutting the parcel into pie pieces. The argument would be the people most capable of policing the land would be the people abutting the property. The intent is to sell a view easement over the land to give residents some of what they have been trying to obtain illegally (a view of the water) subject to the restrictions of the Shoreline Protection Act. This land would be policed by an association of landowners where everyone is on the hook for one landowner’s misgivings. They have been trying for a long time to find a steward for the land. The Nature Conservancy won’t take it because of what happened. He noted it would be a shame for the 69 acres to remain with Walter Cheney.
Adam Schroadter asked if the sale of the view easements had been addressed in the original subdivision. Rob Miller noted it had not been discussed either way but there was no condition preventing it. There is no legal prohibition preventing it as evidenced by the fact The Nature Conservancy does not have an objection.
Chester Jablonski felt the applicant has added to the conditions by way of discussing the view easements. George Willant clarified the conditions of approval did not prohibit view easements but also did not allow them. He noted this was a substantive issue that was not brought up to this Board during the March meeting. It was not part of the subdivision plan. He noted just because something was absent from the condition does not mean something can be added later.
Rob Miller read the first condition as follows: “. . . legal ownership documents be submitted to the Town for proposed Lot 13-A which defines the long-term ownership of the land, associated deed restrictions and other legal mechanisms which assures the maintenance of these lands, as common open space and conservation lands to be held in perpetuity. . .”
Laura Spector added the other condition states: “. . . that Lot 13-A will be maintained in perpetuity in its natural, forested, and open space condition . . .” She felt the Board was struggling with understanding how view cutting is consistent with land being maintained in its natural state, which would not allow view cutting. Rob Miller noted the question then becomes what natural and forested means. His argument was there is forest management that goes on all the time while the land remains in its natural state. Laura Spector asked if the applicant was suggesting the view easements would be managed in accordance with the forest management plan. Rob Miller suggested the easements would be managed in a more restrictive way than what a forest management plan would allow because the basal area cutting restrictions of the Shoreland Protection Act. Town Planner Diane Hardy noted the basal area cutting restrictions no longer apply; there is now a point system. Rob Miller noted the new point system is even more restrictive. It was put in place to be restrictive.
Chester Jablonski asked why this wasn’t discussed at the previous meeting when the Board approved the subdivision. Rob Miller noted he wasn’t here so he doesn’t know. As a landowner, unless there is a prohibition put on the land that says something cannot be done, the landowner is allowed to do what the ordinance or State law allows. Mr. Cheney, as the owner of Lot 13-A, has the right to sell view easements unless there is an ordinance, statute or condition of approval that says he can’t. He noted the property owner has a number of restrictions on them: local, state and federal regulations. On top of that, property can be overlaid with any condition the Board may put on as a condition of approval. View cutting was not a condition on the subdivision approval. Unless there is something in the record that suggests Mr. Cheney is prohibited from view cutting or if there is local, state or federal law prohibiting this activity, it is allowed. He noted the easement ties to the property owner and runs with the land.
Judith Carr asked what would happen if only a partial number of the abutters opted to purchase the view. Rob Miller noted in a possible negotiation with Lubberland Creek over the acquisition of Lot 13-A by gift, this would be discussed and answered. Mr. Cheney has offered to finance the deal and stretch the costs out over time. Judith Carr asked who would purchase the view easements if both Lubberland Creek and Moody Point Community Association opted not to acquire the property and a third party acquires the land. Rob Miller presented a scenario in which a subset of people could hold the easements.
George Willant noted the Board is not here to discuss how to structure the deal. The Board had expected the deal to be done. There is confusion with the condition of approval. The intent had been to find the next owner or entity that would conserve that land in order to meet the condition of approval. Rob Miller explained in June there had been a meeting scheduled where Lubberland would decide whether to do the deal. There had been a debate as to whether Mr. Cheney owned Lot 13. The Lubberland Creek meeting got derailed because the homeowners had been signaled that there was some possibility that Mr. Cheney did not own the land at all. The consensus had been to wait to see what the Planning Board would decide before reconvening the meeting. He referenced emails that supported this.
Judith Carr noted the reason she brought this up was the timing. She is not in favor of this being dragged out. She felt there would be a three year minimum if Lubberland Creek decided not to acquire the land; Lubberland Creek had one year to determine whether to acquire the land, then Moody Point Community Association had one year to determine whether they would acquire the land, then the third entity had one year to determine whether they would acquire the land. She felt it could be five or six years down the road before the residents of this area knew what would be happening. Rob Miller agreed stating it was their intention to sell the view easements, convey the land (Lot 13A) and convey the remaining land (Lot 13) to The Nature Conservancy. Mr. Cheney wanted to get the deal done as soon as possible. The problem is there have been mixed signals given out. Judith Carr noted the reason for the condition was to ensure there would be an owner of the land. Rob Miller asked what the alternative would be. Judith Carr noted the alternative would be for Mr. Cheney to gift the land. Rob Miller noted Mr. Cheney was asking for a small recovery of cost for a large parcel of ecologically important land in the State.
Town Planner Diane Hardy noted Mr. Cheney extinguished the rights to that land in 1985 when the original subdivision was approved.
Janice Rosa suggested the 3.9 acres of land should go with the 69 acres of land. The Nature Conservancy could restore the land. She felt it was part of the Nature Conservancy’s responsibility to take ownership of the smaller piece too. Town Planner Diane Hardy noted there are federal monies available for wildlife restoration through the New Hampshire Coastal Program and the New Hampshire Estuaries Program. A partnership could be formed with The Nature Conservancy. She would be willing to help secure funding to help restoration take place. Rob Miller noted he and Town Planner Diane Hardy had this conversation in June. He had asked her to try. Funding is not easy because Lot 13-A is problematic. This is incredibly valuable land; the land is also unique in its slope and abutters nearby. There is a severe policing issue that has been damaging to the resource.
Rob Miller noted when a second plan of ownership and conservation restriction document in November the conditions were met for four reasons. The document is a legal document; Mr. Cheney is willing to sign and record this document to ensure it is of record with this parcel so it is clear what the intentions are. The plan of ownership and conservation restriction defines the long-term ownership of the land in the best way possible right now. There is no final suitor. There are a bunch of potential suitors with no direction from the Board whether the structure will be acceptable. The plan of ownership and conservation restriction contains all the associated deed restrictions that were in the original deed. The deed restrictions apply to Lot 13-A and make it abundantly clear the property will be held in perpetuity and maintained in its natural forested and open space condition subject only to view cutting. The Town has police powers under Section 3.14 B (7) (b) of the Town’s subdivision regulations and RSA 674:21 A so enforcement action can be taken on any entity that takes ownership of this parcel that does not abide by these regulations.
George Willant noted the Board’s condition had indicated there would be no structures located on the land. In the documents provided it states there shall be no construction “other than ancillary structures and improvements such as unpaved footpaths, fences, boardwalks, blinds for wildlife observation and wildlife nesting structures that are used solely for conservation, wildlife habitat. . .” He noted this was not part of the Board’s condition. Rob Miller noted that was language drafted by The Nature Conservancy for reasons that are important to them. Laura Spector asked how that was consistent with the land being left in its natural state. Rob Miller noted the items were not permanent structures. He noted a fence would go up to prevent residents from violating that land.
Adam Schroadter asked if it would make sense to reapply with those conditions. Laura Spector noted this condition is allowing for construction of the mentioned items anywhere on Lot 13-A. The Board’s question is how that is consistent with leaving the land in its natural, forested state. She asked if this had been discussed with the Board when the applicant was here for subdivision approval. She suggested the applicant has indicated anything not prohibited through regulations or ordinances is allowed, but if the applicant did not raise these issues with the Board, the expectation is the Board should not have to read the applicant’s mind for the true intentions. Janice Rosa suggested a vegetative fence. Rob Miller noted the unpaved footpaths, blinds and other things are The Nature Conservancy requests. Mr. Cheney is not concerned with those items; he is concerned with the fencing for reasons the Board viewed Saturday. There were stumps and debris scattered on this property and along the slope. He asked if the Board was willing to kill the deal based on a fence whose intention is to protect the very land up for discussion. George Willant agreed the Board members were not mind readers. The plan did not come to the Board stating there would be view easements. It was either not clear to the applicant or was withheld from the Board what would be happening with this property. Rob Miller appealed to the Board’s sense of common sense and fairness in terms of the fence. He noted the fence may not leave the land in its natural state technically, but the bigger question was why the fence was going up. The fence was for protection of the land. George Willant noted this should have all been thought out before it became to the Board. He took offense to the suggestion that the Board was being short sighted. Rob Miller apologized if that is the way the Board took his comments. He hoped the word “fence” would not kill a deal that would convey 69 acres to conservation land.
Chester Jablonski asked about the Shoreland Protection Act. Rob Miller explained it is a program of the NH DES. He felt they would keep a very close eye on this property.
Laura Spector asked if the cutting that has already taken place was within the protected shoreland. Rob Miller answered it was. Laura Spector noted Mr. Cheney has indicated NH DES has not taken any action on the cutting thus far. Rob Miller answered there is no action pending at the moment.
Town Planner Diane Hardy noted she continues to go back to determine the Board’s original intent in 1985 and the original process Mr. Cheney went through at that time in order to gain approval from the Planning Board for the cluster development. She noted the development was touted as one of the most innovative environmental models among many people in the State. She referenced correspondence from environmental organizations including the Office of Energy and Planning, NH Department of Environmental Services, NH Wetlands Board, the Great Bay Conservation Trust, and University of New Hampshire wildlife biologists. There were a number of key people in the State of New Hampshire that participated in the review of the development plans and participated in the development of an environmental management plan. It states very clearly that Lot 13 is an environmentally sensitive area that should be kept in a pristine state. There was a series of deed restrictions that were reviewed by these environmental agencies. There was discussion about no hunting, no boats, no fishing, no walking trails, no swimming and no improvement of any kind shall be established on said lot without such improvements that may be needed for improved wildlife. No dogs, cats or pets should be allowed. The entire area of Lot 13 shall be kept as conservation area and kept in its present condition entirely unaltered. No trees may be cut within Lot 13 except for safety purposes, to create views of Great Bay or for proper management. Any cutting shall be in accordance with accepted forestry practices and shall only be approved by wildlife biologists. There is no indication cutting for view enhancement was part of the original intent of the subdivision. Rob Miller noted this was an area that was not up for discussion tonight. He referenced his binder of documents and indicated he is trying not to violate the rules that were set for tonight’s discussion. Town Planner Diane Hardy noted the Board needed to understand the context of what the original subdivision entailed.
Rob Miller noted the local zoning ordinance defines fence and does not call it a structure. He noted there is 69 acres of land that is ready to go to The Nature Conservancy. There is a lot of passion surrounding the issue, a lot of uncertainty and ill feelings. He understood this. He suggests each Board member use their common sense and look at the big picture. This was for the greater good.
Duane Hyde, Director of Protection for The Nature Conservancy, noted he was last here in March. The Nature Conservancy remains interested in receiving the 69 acres referenced here tonight. The Nature Conservancy is interested in the salt marsh, which has been identified as an exemplary natural community in the State and is the second largest salt marsh system in Great Bay. It abuts land already conserved by The Nature Conservancy and has been identified in the Coastal Conservation Plan for the State of New Hampshire as a focus area. It is also identified by the Great Bay Resource Protection Partnership as an important resource. The value of the resource is recognized. The Nature Conservancy had been approached by Walter Cheney to acquire the entire parcel. There had been some view cutting on the property. They walked the property; it was unclear where the boundaries of the property were. Doucet Survey was hired to survey the boundaries. After knowing where the boundaries were the extent of the clearing became more obvious. The Nature Conservancy became very concerned about the clearing that had occurred and how it could be managed under their ownership. The Nature Conservancy does not have any interest in maintaining view-clearing easements. The Nature Conservancy does have some experience with managing and maintaining view clearing provision easements. The experiences have not been good. Mr. Cheney suggested subdividing the property: maintaining the 3.9 acres and conveying the rest of the property to The Nature Conservancy. They had worked collaboratively to draft deed language prior to the hearings.
Laura Spector asked if they had been drafting the language while incorporating the idea of view easements. Duane Hyde noted Mr. Cheney had expressed an interest in trying to work with residents on having view clearing easements. Laura Spector reiterated that Duane Hyde had been aware of the view easements in March when he had come before the Board. Duane Hyde agreed.
Laura Spector asked if she had heard Duane Hyde properly when he stated if The Nature Conservancy took control of the entire property view cutting would not be allowed. Dwayne Hyde acknowledged ideally that would be the case. That is where the problem is. The Nature Conservancy is a land conservation organization; ideally they would not want to see view cutting. They did discuss view clearing easements to provide land owners view clearing rights but didn’t feel the easements could be drafted to provide a level of protection for the estuary while still providing the ability for view clearing. They were cautious about accepting the property without view clearing easements because view clearing had already occurred. They had tried to stay away from that issue.
Laura Spector understood there was a strip of Lot 13 and Lot 13-A. Duane Hyde agreed noting that was the 20-foot buffer along Lubberland Creek, which is part of Lot 13. She clarified there was the homeowners property, Lot 13-A, a twenty foot strip of Lot 13, and then the creek.
Rob Miller asked if he would have the opportunity to cross-examine. He felt the Board’s attorney was conducting an examination without him having the opportunity to cross-examine. He felt either both attorneys were able to ask questions or neither one should.
George Willant understood there was twenty feet from Lubberland Creek to the edge of Lot 13-A then the abutters’ property. Town Planner Diane Hardy presented a plan showing Lubberland Creek, Cushing Road, the abutters property, the strip of land that makes up Lot 13-A and Lot 13. George Willant noted there is a twenty-foot buffer between Lot 13-A and Lubberland Creek, which is all part of Lot 13. Duane Hyde noted curved lines are difficult to follow in the field. The goal was to create a twenty-foot upland buffer between Lot 13-A and the brook. George Willant noted the twenty-foot buffer was between Lot 13-A and Lubberland Creek; not between Lot 13-A and Lot 13 as the twenty foot buffer was part of Lot 13. The Nature Conservancy tried to maximize the buffer between the lot they would not own and Lubberland Creek.
George Willant asked if The Nature Conservancy would allow view easements on the twenty-foot buffer. Duane Hyde answered that is what the Nature Conservancy was trying to avoid. George Willant asked if Lot 13-A was given to The Nature Conservancy without view easements if the Nature Conservancy would let the lot go back to its natural state. Duane Hyde noted without speaking to his colleagues, his assumption would be the lot would be allowed to grow back to its natural state. There is active management for habitat restoration and invasive species removal. George Willant asked if The Nature Conservancy owned land anywhere else that abuts residential developments and, if so, has there been problems maintaining that. Duane Hyde answered The Nature Conservancy does own land that abuts residential developments. There have been occasional issues with leaf dumping or tree removal along the boundary line.
George Willant noted if Lot 13, including Lot 13-A, was conveyed to The Nature Conservancy without view easements, this would not be uncharted territory for the Nature Conservancy. Duane Hyde agreed with the exception of the prior activity that showed a desire from neighbors to have those views there. The Nature Conservancy tries to be good neighbors and tries to respect that desire of the residents. Easements can be great, but administering them in perpetuity can be difficult and expensive. The potential time and effort on The Nature Conservancy’s part outweighs the view easement potential.
Chester Jablonski noted the marsh was an important ecological resource. Duane Hyde agreed indicating the proposal was the best feasible way to protect that resource.
Janice Rosa noted the Shoreland Protection Act dictates what can be cut so there wouldn’t be major cutting. Duane Hyde noted the Shoreland Protection Act does allow a significant amount of cutting. Janice Rosa believed the Moody Point Association has been trained to go out and police the areas and inform neighbors of violations. She suggested working with Walter Cheney to obtain an organization to acquire Lot 13-A. Duane Hyde noted he had not been engaged in the process except as the recipient of the larger piece. There had been discussion of the homeowner’s association taking over the land and policing the view clearing easements.
Judith Carr asked how The Nature Conservancy felt about fences. Duane Hyde answered The Nature Conservancy has used fencing to guide areas. There are no plans for fences on this property.
Rick McMenimen noted if The Nature Conservancy owned the entire 72 acres there would be no view cutting allowed. The deed language has been written to allow view-cutting easements on Lot 13A; however, if owned by a third party. Duane Hyde noted in an ideal unaltered world The Nature Conservancy would love the entire parcel, but needs to look at the parcel in a pragmatic process. There is already cutting that has occurred. The Nature Conservancy is trying to be good neighbors. They are trying not to be confrontational. The Nature Conservancy has tried to protect what is most important to protect while allowing Mr. Cheney to work with third parties.
George Willant opened the public comment section at 8:57 p. m.
Dave Contarino of 119 Cushing Road noted there were many areas of disagreement. He requested the Board to review the Kitty Miller report done in the middle 90’s. He asked where Mr. Cheney had been during the sale of the property to Jay Howland. He expressed his concern why Mr. Cheney is such a steward of the property now when he hadn’t been then. He noted the cutting that has happened is very much in dispute. The NH Department of Environmental Services and the New Hampshire Division of Forests and Lands have visited the site and have found no permanent damage to the marsh; there will be information forthcoming on that. He felt landowners already pay dearly through taxes to the Town of Newmarket; he pays over $15,000 a year in property taxes. His concern is the twenty-foot buffer on Lot 13 to be owned by The Nature Conservancy will, in time, grow in and buffer any view easements sold to the residents. If The Nature Conservancy will not allow cutting on the land they own, in ten years the buffer has grown in and will obstruct the view residents have paid for. Mr. Cheney has already told residents the five-foot space will be used if not purchased by the residents. Lubberland Creek had tried negotiating with Mr. Cheney in an ongoing dialogue; the reason those negotiations stopped was because Mr. Cheney had provided an unreasonable amount of time to reach a decision (one week) and the price provided was too high to come up with the funds.
Town Planner Diane Hardy noted she has a copy of the environmental review of Moody Point that was prepared by Kitty Miller. This is basically a report card on how well the Moody Point development was meeting certain environmental objectives. There were many concerns raised about how the lots along Lubberland Creek were being developed by the builder. She didn’t feel it was fair to blame the homeowners for the entire cutting that has occurred.
George Willant noted for the record there was a site walk last Saturday. It was evident there was cutting/damage to the property. It is not this Board’s responsibility to determine who did the damage. What the Board will try to resolve tonight is whether Mr. Cheney has met the conditions of approval as set forth by the Board in March.
Debbie Grubbs of 121 Cushing Road noted when she bought her land the warranty deed indicated the Moody Point Community Association was the property owner along the northern boundary of the land. This was the legal document that was given to them. She was not at the site walk on Saturday but she feels she is being unfairly maligned with the statements that are made. She has seen things that have been tagged and cut long before anyone was living there. She felt it was unfair the position some people were taking. The land was marketed as water view. She felt this is what had attracted residents to the area: the view of the marsh. She noted The Nature Conservancy is a wonderful organization. She would ask the views be maintained as a component of the purchase. She preferred view maintenance to view easement. What has been done has been done by many people. She felt it would be unfair to the Lubberland Creek landowners to let that area grow back to its natural state.
Lorelei Churnishov of 117 Cushing Road and President of the Lubberland Creek Association noted the association has formulated a letter in response to enter into the record. She read:
“Dear Planning Board members, regarding Mr. Cheney conditional approval for the subdivision of Lot 36-13 at Moody Point, as an abutting land owner and interested party we respectfully request that the Planning Board not take any action which would diminish the opportunity for our association or our members to obtain rights to all or a portion of this parcel in an effort to protect current and future views of Lubberland Creek and Great Bay. We understand the Planning Board is dealing with several issues and would appreciate hearing your position on the following matters:
One of the conditions of approval stated Lot 13-A is required to be maintained in perpetuity in its natural, forested and open space condition. Does this really apply to Lot 13-A or was there an error in the motion and/or minutes so this condition would only apply to Lot 13, which would be conveyed to The Nature Conservancy. It is our position the ability to maintain and create views to Lubberland Creek and Great Bay subject to Town, State and Federal regulations is critical to our members. If the Planning Board’s approval of the subdivision does not provide an opportunity for our association or its members to acquire these rights, we respectfully request the Planning Board to rescind the conditional approval of the subdivision so the association can negotiate with Mr. Cheney to obtain these rights from him.
Mr. Cheney’s proposed plan of ownership states that he is willing to give Lubberland Creek at Moody Point Homeowner’s Association Corporation one year option to acquire by gift title Lot 36-13A with the restrictions that he retains the ability to sell all rights subject to Federal, State and local regulations to control access, forest management including clearing of vegetation and trees of any size for the purpose of enhancing the views of Lubberland Creek and marsh and maintenance of existing encroachments. While the association has not been able to hold a formal meeting on this matter, a straw poll of our members indicates that provided view maintenance and clearing is permitted, the association would be willing to accept a deed to Lot 36-13A from Mr. Cheney in an effort to protect the interest of our members. Our articles of agreement would allow us to take title to this property and as owners of the parcel the association would be in a position to monitor and ensure enforcement of environmental regulations pertaining to Lot 36-13A. However, if the Planning Board agrees view clearing on Lot 13A is allowed but does not agree with Mr. Cheney’s currently proposed plan of ownership, and if a majority of the Planning Board is inclined to rescind the March 18th subdivision approval we would respectfully request the Planning Board extend this hearing for thirty days to allow the (Lubberland Creek) Association to negotiate with Mr. Cheney a deed which would transfer all of his rights and title to Lot 13A.
If the Planning Board rescinds Mr. Cheney’s conditional approval based on the subdivision issue or based on non-compliance of the conditions will the Planning Board be recommending to the Town Council that the Town institute enforcement action to require the conveyance of Lot 13 to the Moody Point Community Association as referenced in Attorney Spector’s letter to Mr. Cheney dated July 2, 2008?
We respectfully request the Planning Board not to take any action tonight to diminish the opportunity for our Association or members to obtain rights to all or a portion of this parcel in an effort to protect current and future views of Lubberland Creek and Great Bay but instead would vote to grant us a continuance for thirty days.”
George Willant closed the public comments at 9:10 p.m.
George Willant noted the Board would continue its deliberation. What is before the Board is to decide whether the plan of ownership that was provided meets the conditions of approval. There is also a letter from the Lubberland Creek Association that requests a potential extension. There are several options for the Board to consider: (1) the Board can agree the plan of ownership meets the conditions of approval; (2) the Board can agree the plan of ownership does not meet the conditions of approval; (3) the Board can choose to continue the hearing or end it at this point; and (4) there is also the option provided by the Lubberland Creek Association.
Adam Schroadter noted it sounded as though Lubberland Creek Association was in favor of moving forward with the subdivision. Lorelei Churnishov stated that was not the feeling they wished to convey. George Willant and Judith Carr stated they had both received the same feeling; that Lubberland Creek was in favor of the subdivision.
Chester Jablonski noted Mr. Cheney’s proposed plan of ownership states he is willing to give Lubberland Creek at Moody Point Homeowner’s Association a one-year option to acquire by gift title Lot 13A with the restriction that he retains the ability to sell all rights.
Lorelei Chernyshov clarified the association would need thirty days because there are abutters in very different situations with differing opinions. The abutters would need time to meet and discuss this further. Chester Jablonski noted the abutters would discuss whether to acquire the land but asked about the view easements. Lorelei Churnishov answered that was one of the issues; Mr. Cheney is trying to sell view easements. The association felt that was an issue due to cost and in what way that would be packaged. The association would attempt to have a meeting and see where things went from there. Whether the association is in favor of the subdivision would depend on the conditions.
George Willant noted the Association does not have to be in favor of the subdivision. What needs to happen is if the Association wants to take ownership of Lot 13A, with whatever restrictions are being outlined in the deed and conditions of approval.
Chester Jablonski noted Lubberland Creek Association is asking for thirty days to allow for negotiations with Mr. Cheney to try to finalize this problem of ownership with Lot 13A.
Judith Carr noted there has been over six months to work this issue out. She asked how thirty additional days would matter. Lorelei Churnishov noted the association would be able to gather all its members to discuss Mr. Cheney’s proposal. They have not been able to gather all members and the proposal has not been clear.
George Willant noted the discussion between Laura Spector and Town Planner Diane Hardy indicating Lubberland Creek cannot ask for the continuance, but the Board can take it under consideration and ask the applicant if they would agree to the continuance. He noted the Board would need to think the continuance would be worthwhile and the applicant would need to agree to it.
Chester Jablonski felt the site walk had raised many issues. He did not know if there were issues with the marsh itself.
Judith Carr felt the conditions put on the approval from March have not been met because she does not believe the Board has received a definite plan of ownership. The Board had agreed to subdivide the land with the stipulation there would be a clear owner at the end of the ordeal. This has been going on for months; there have been a number of meetings and attorney’s fees without a lot of real progress having been made.
Adam Schroadter noted the goal is to protect the land. He had heard some of the abutter’s state they would prefer if The Nature Conservancy didn’t have the twenty-foot buffer zone along the creek because of the intrusion into views in time.
George Willant noted this was 69 acres being given to conservation. However, looking over the record the Board needs to determine what is or is not being met. It was his opinion it was not clear to him whether there are view rights for homeowner’s or not. There is encroachment onto abutting property. He felt what the Board needed to do is figure out what the best way is to conserve Lot 13 and Lot 13A. He expressed his concern with not meeting the conditions the Board set forth. The issue of view easements had not been raised previously. The Board had believed Lot 13A would be preserved in perpetuity in its natural state. To him, that included tree growth; he had not known anything about the desire for view easements. He felt this has been drawn out; the Board needed to make a decision as to whether the conditions of approval have been met. He did not believe they have been met because there is no defined ownership. He would like to see The Nature Conservancy take over the whole thing. There are other options available for Mr. Cheney to pursue for conservation of this land.
Rick McMenimen noted he was not here for the original approval. From what he has read from previous meetings and what has happened since he has been on the Board, it was his opinion Mr. Cheney has not met the conditions of approval as set forth by the Board.
Chester Jablonski noted he didn’t see any other option but to rescind the approval. Laura Spector explained the Board would not be rescinding the original approval; if it was the Board’s decision, they could find the conditions of approval have not been met; therefore the approval would expire.
George Willant reviewed the options before the Board. The Board could accept what Mr. Cheney has provided the Board as meeting the conditions of approval including accepting the provisions of the other items that would be allowed; the five foot buffer which would be retained, the encumbrances existing would be maintained, and the question remains who would own the land as the Board had intended. Until a permanent owner was named, Mr. Cheney would retain rights to the land. This could be a three to four year process. The Board could determine the information provided does not meet the condition of approval meaning Mr. Cheney still owns Lot 13 in its entirety. He could continue to work with The Nature Conservancy on conveyance of the property. He could work with another entity. Mr. Cheney could come back to the Board once those details were clear and fully laid out. He noted Rob Miller suggested Mr. Cheney could develop that land; he felt this was debatable.
Chester Jablonski asked what happens to the original motion if the Board does not accept the information as meeting the conditions of approval. Judith Carr answered the motion granting conditional approval would expire; the applicant could reapply.
George Willant noted if this were a clear gift to The Nature Conservancy, the Planning Board would not have been involved. The reason the Board had become involved was because of the compromised situation; The Nature Conservancy wanting part of the land, but not Lot 13A. Rob Miller noted it was not the view easements that were complicating the issue. Mr. Cheney is not able to give Lot 13 in its entirety to The Nature Conservancy because the Nature Conservancy does not want the parcel subdivided as Lot 13-A.
George Willant noted if Mr. Cheney finds an entity willing to take all 70+ acres without subdivision, this would not have to come back before the Board for conveyance.
Laura Spector noted if the Board determines the conditions of approval have not been met, the Board might find itself in litigation for appeal from that decision. She did not feel the threat of an appeal should dictate the decision by the Board.
Janice Rosa felt The Nature Conservancy should accept the land in its entirety because The Nature Conservancy has accepted other land in Newmarket that was not in pristine condition. She referenced the gravel pit on the Smith property. The Board did not intend for The Nature Conservancy to acquire Lot 13 in its entirety.
Janice Rosa referenced the site walk asking if abutters were Lubberland Creek owners or Moody Point owners. Judith Carr answered Lubberland Creek is a subdivision of Moody Point. There are five associations that come together to make the Moody Point Community Association.
Chuck Denehey clarified each association is separate and individual. It is not an umbrella organization. Each organization is responsible for certain things.
George Willant reiterated the options before the Board.
Action
Motion: Judith Carr made a motion the Planning Board finds the conditions set forth on the subdivision approval of March 18, 2008 for Lot 13 and Lot 13A have not been met; therefore, the conditional approval of the subdivision expires. The conditions have not been met because the condition of ownership for Lot 13A has not been decided and planned for.
George Willant felt it could be added that during the discussion the view easements had not been discussed. There are several things in the plan of ownership relating to structures and five foot easements that the Board did npt intend. The condition was amended for view cutting, which was not explained to the Board during the March 18, 2008 meeting. There are conditions for structures on Lot 13A the Board does not agree with. There is no definitive ownership.
Seconded: Chester Jablonski
George Willant restated the motion to ensure Board members understood the motion clearly before voting and added the following reasons, as stated earlier, for the record.
The Board, further, finds the conditions of approval from March 13, 2008 (for subdivision of Lot 13 and Lot 13A) have not been met for the following reasons:
The future long-term ownership of Lot 13A, and related restrictions, has not been clearly defined as intended by Condition 1, imposed by the Planning Board.
There have been additions to the application and conditions relating to view rights and a five foot easement to be reserved by the applicant, the Board feels are substantive and does not feel were presented during the original subdivision presentation.
The plan of ownership includes ancillary structures and improvements such as unpaved footpaths, fences, boardwalks, blinds for wildlife observation and wildlife nesting structures that are used solely for conservation, wildlife habitat management and or other recreational purposes and the Board does not believe meets the intent of leaving the land in its natural state, as intended by Condition 2.
Roll Call Vote:
In favor: Judith Carr, Chester Jablonski, Rick
McMenimen, Adam Schroadter, George Willant
Opposed: Janice Rosa
Abstained: None
The motion passes. Therefore, the conditional approval for the subdivision has expired.
Janice Rosa stated she voted against this motion because she would have liked to give Lubberland Creek Association the opportunity to negotiate with Mr. Cheney. George Willant pointed out Lubberland Creek still has the opportunity to negotiate with Mr. Cheney; they now have more than thirty (30) days.
George Willant noted the Board has denied this request without prejudice.
Adjournment
Action
Motion: Rick McMenimen made a motion to adjourn at 9:42 p.m.
