Present: John Badger (Chairman), Judith Carr (Town Council representative), Diane Hardy (Town Planner), Chester Jablonski, Rick McMenimen (alternate), Janice Rosa, Adam Schroadter (Alternate), Val Shelton
Absent: PeterRoy (Vice-Chairman), George Willant
Chairman Badger called the meeting to order at 7:03p.m.
Pledge of Allegiance
Discussion of Historic District Ordinance
Chairman Badger noted the Board would be discussing the draft Historic District Ordinance dated January 22, 2009. The Board would go through each section paragraph by paragraph and ask if there are any questions or concerns. The definitions for Commission and Historic District are provided in the RSAs. The Board began its discussions a few weeks ago and set forth the process to establish a historic district ordinance. Once the Board has approved a draft ordinance, it will be forwarded to the Town Council, along with a recommendation. The Historic District Commission would then meet and set up their own guidelines and operating procedures.
Definitions
Val Shelton felt it would be helpful to include a definition for Historic District Commission as other Commissions (i.e. Conservation Commission) are defined in the Zoning Ordinances.
Section 5.09 Historic Overlay District
Chairman Badger asked if the overlay district would cover the National Register Historic District itself. Town Planner Diane Hardy noted there is a section in the Zoning Ordinance that pertains to overlays. A new section would be created under Overlay Zoning Districts (Section 5.00) to include the Historic Overlay District. The area delineated would be the “Newmarket Industrial and Commercial Historic District as listed on the National Register of Historic Places and approved by the National Park Service.
Purpose
Rick McMenimen felt the purpose should emphasize the business community. Town Planner Diane Hardy noted the wording is provided by the State RSA, but it could be expanded upon. She suggested the sentence read “. . . strengthen the local economy and business community. . .” Rick McMenimen agreed that would be appropriate.
Overlay District Boundaries
Val Shelton noted this ordinance would adopt a specific overlay district. She asked what would be involved with breaking up the district in the future. Town Planner Diane Hardy answered the boundaries can be changed by following the RSAs regulations for making amendments to the ordinance. The Planning Board would review the boundaries, hold a public hearing and make a recommendation to the Town Council, which would ultimately adopt the change.
Historic District Commission
Town Planner Diane Hardy explained the authority to set up the Historic District Commission is set forth in RSA 674:46. She recommended the Board review that RSA to understand what it entails.
Chairman Badger discussed the membership make up of the Historic District Commission. He noted the membership requirements specifically speak about the Newmarket Business Association and the Heritage Advisory Commission. He asked what happened if one or both of these organizations cease to exist. He asked if this section should be reworded so seven members would still participate. Town Planner Diane Hardy noted she could reword the sentence to “. . . two members of the Newmarket business community or the Newmarket Business Association.” The next membership requirement could be reworded to “. . . two members of the Heritage Advisory Commission or individuals with experience relating to historic architecture and cultural heritage.” Rick McMenimen noted membership should include representatives from both groups if possible. Val Shelton noted she had not been present at the last workshop, but had reviewed the latest draft. She suggested the first membership section be changed to include two members who operate a business within the downtown historic district and two members with a background in real estate, historic preservation, architecture or building trades. The intent of this membership is to include individuals with a level of expertise.
Val Shelton noted the Heritage Advisory Commission is charged with a broader mission than just with the historic preservation of the buildings. The RSAs provide the ability to have two separate organizations. The Heritage Advisory Commission would be involved with promoting historic preservation and heritage festival activities.
Janice Rosa asked if it could be arranged so there was a good mix of membership. She was concerned with the possibility there may be several members from one committee in Town also serving together on this committee. Chairman Badger agreed noting the members of the Historic District Commission should not be Town Councilors. Judith Carr added the members of the Historic District Commission can not be employees of the Town. Val Shelton asked if the employee Town stipulation applied to any other Boards. She asked what the intent was for this restriction. Town Planner Diane Hardy noted the intent is to have a mixture of residents as opposed to Town employees. Val Shelton noted this restriction prohibited Town employees who also reside in Town. Town Planner Diane Hardy noted she would need to check the Town Charter. As a general rule, she did not feel it was a good idea to have Town employees serving on Town boards and commissions. She felt the functions should be separate. Val Shelton noted the membership requirements and restrictions should be consistent with other Town boards, commissions and committees.
Janice Rosa noted the Town Council would make appointments to fill vacancies. Rick McMenimen asked if there would be terms for the alternates. Chairman Badger noted Val Shelton had emailed Town Planner Diane Hardy with suggested wording.
Val Shelton felt there should be a residential property owner so there is a balance between residential and businesses representatives. Over half of the properties within the district are residential. She suggested the member at large have a professional background. Town Planner Diane Hardy noted it can be difficult to fill positions for Town boards and committees; being too selective could make it more difficult to fill the positions. Janice Rosa felt if a resident or business owner showed a sincere interest and worked towards the betterment of the Town that should qualify the applicant for the position.
Val Shelton expressed her concern some of the regulations enacted would affect property values and expenses for property owners. Her suggestion of having members with specific backgrounds ensures the Historic District Commission members are aware of possible expenses property owners can incur as a result of decisions made.
Janice Rosa noted she would like to see the Historic District Commission elect and appoint their own alternates as opposed to the Town Council appointing them. She also felt the voting members should be elected by the public. Chairman Badger noted he had reviewed between 12 and 15 ordinances from other communities. He noted alternates’ terms would be three years. If a vacancy occurs, the Town Council would appoint a replacement member for the unexpired term. The Historic District Commission would elect their own chairman, vice-chairman and recording secretary. All meetings shall be open to the public. The Historic District Commission shall “keep a permanent record of its resolutions, transactions and determinations and the vote of each member participating therein.”
Chairman Badger noted the inventory of historic downtown properties has been created and is available.
Chairman Badger noted he had recommended the Historic District Commission provide an annual report. He felt the ordinance needed to be modified to communicate with the Town Council on a more formal basis.
Chairman Badger felt it was important for buyers to be aware of the guidelines. He recommended a copy of the ordinance and regulations be provided to potential buyers. Val Shelton noted that would be more of an administrative thing. There are disclosures that are required to be provided by New Hampshire State Law. She suggested the tax assessment card should reflect the property is in the local Historic District. A potential buyer (and real estate agent) would review the tax card prior to purchase. Copies of the regulations and ordinances could be made available at the Town Hall to ensure the information received is the most up-to-date. Chairman Badger noted simply having the information would not ensure the buyer understands what the implications could mean. Val Shelton noted there are other overlay ordinances that should also be noted on tax cards including the steep slope, aquifer and well head protection overlay districts. She suggested requiring the seller to provide this information would be a liability to the seller. Town Planner Diane Hardy questioned how the Historic District Commission would enforce this requirement and assure the information was disclosed. Chairman Badger felt it was important potential buyers of any parcel within the district know about the historic district restrictions.
Val Shelton noted there are few guidelines for this in State disclosure laws. The Town needed to be careful not to single out an ordinance. The buyer needs to be responsible for knowing the restrictions of a parcel. She suggested the Board could achieve the intent by flagging properties subject to the Historic District regulations on the affected tax cards.
Rick McMenimen asked if the regulations could be attached to the deed. Val Shelton suggested that could happen, but it would be cumbersome to do all the properties. Town Planner Diane Hardy noted protective covenants could be put on properties suggesting the property is subject to conditions of the Historic District Commission.
Phil LePage, President of the Advisory Heritage Commission felt buyers of properties would do their due diligence and look at the zoning ordinances and regulations. He felt the Town would be covered that way. He added once a property is included in a Historic District, it is typically marketed that way as an asset. Value is usually added as a result of being included in a Historic District.
Chairman Badger asked if the information was flagged on the tax cards if the Board felt that would be enough notice. Val Shelton felt that would do well. She asked if there would be a metes and bounds legal description of the district as opposed to what was defined in the 1980s. Town Planner Diane Hardy noted many communities include legal descriptions of overlay districts and ordinances. The legal description could be included as part of the ordinance.
Certification of Approval Required
Chairman Badger noted the ordnance includes a provision requiring a certification of approval. He read: “No building, or structure, or addition shall be erected, restored, moved, demolished or altered within the Historic Overlay District, until a Certificate of Approval has been issued by the Historic District Commission . . . ” Adam Schroadter asked if Portsmouth required certificates of approval for their Historic District. Town Planner Diane Hardy noted different communities call the approval different things. The certificate of approval would ensure the Historic District Commission has approved the appropriateness of the proposal. The certificate of approval would be forwarded to Code Enforcement Officer Dan Vincent, prior to the issuance of the building permit. Chairman Badger noted most of the ordinances he reviewed required a certificate of approval.
Chester Jablonski asked how the Code Enforcement Officer would work with the certificate of approval. Val Shelton noted there would be a paper form that says the proposal has been certified by the Historic District Commission.
Historic District Standards and Guidelines
Chairman Badger noted the ordinance references the Secretary of the Interior’s Standards for Rehabilitation are included within the ordinance. Town Planner Diane Hardy noted residents would want to know what the standards will be. The amended version of the Secretary of the Interior’s Standards for Rehabilitation has been included in the ordinance. There is a certain amount of discretion allowed. Val Shelton questioned why these standards had been included. She felt the Historic District Commission should be obligated to adopt rules of procedure. Town Planner Diane Hardy noted it is spelled out in RSA 675:6 and can be clarified.
Review of Applications
Chairman Badger noted the Review of Applications sets forth the process of reviewing applications. Rick McMenimen asked if there was a process for appeals. The Zoning Board of Adjustment would grant appeals.
Certificate of Approval/Notice of Disapproval
Chairman Badger questioned whether 45 days is enough time to render a decision. He noted the Planning Board has 65 days to render a decision. Val Shelton suggested the timeframe could be placing a large burden on the applicant even at 45 days. Chairman Badger noted 65 days would allow for two regularly scheduled monthly meetings. Chester Jablonski noted 45 days is six weeks and could also allow for two regularly scheduled monthly meetings. Town Planner Diane Hardy noted the RSAs state 45 days. If additional time is needed, most developers are willing to work with the Town and provide additional time. Val Shelton expressed her concern most applicants will be property owners and not developers. She added the Historic District Commission is not be required to hold a public hearing as the Planning Board is. Town Planner Diane Hardy noted she included the requirement for a public hearing due to the sensitive nature. She imagined the public would want an opportunity to provide input into the process.
Chairman Badger noted he spoke with a friend of his from Connecticut who has been on a Historic District Commission for ten years who indicated the Historic District Commission has at times been hard pressed to get a decision within 45 days. They changed the timeframe to 65 days, which is the maximum statute allowed in Connecticut.
The Board agreed to keep the timeframe for decision at 45 days. Chairman Badger noted the Historic District Commission would need to address in the rules of procedure when the days begin. He noted the Board’s timeline begins when the application is accepted as complete. Val Shelton suggested that would be covered in the RSAs. Chairman Badger noted the determination needs to be clear as to when the days start. Val Shelton suggested the timeframe begins with the filing of the application unless the applicant agrees to a longer period of time.
Pubic Hearing
Val Shelton asked if this requirement is typical of other Towns and whether it was realistic to require a public hearing. Town Planner Diane Hardy felt it was realistic within the 45 day timeframe. Adam Schroadter suggested a public hearing be allowed if requested by the applicant rather than be required. Val Shelton noted the public hearing would be to benefit the abutters, not the applicant. She asked who would cover the cost for the public notices. Town Planner Diane Hardy explained the applicant would be responsible for covering the cost of the notices. This would be tied to the cost of notification to abutters. Val Shelton felt it was important to notify abutters. There would be significant investments being made.
Refusal to Issue Building Permit
Chairman Badger noted the Building Official would not be permitted to issue a building permit without a certificate of approval from the Historic District Commission.
Exceptions and Waivers
Chairman Badger noted this information had been pulled from other ordinances. This would authorize the Historic District Commission to provide waivers and exceptions from procedures for clear reasons. He read: “. . . Where, by reason of topographical conditions, district border line situations, immediately adjoining existing developments, or because of other unusual circumstances . . .” stating this would provide the flexibility for unusual circumstances.
Maintenance or Destruction of Unsafe Structures
Chairman Badger noted this was a public safety clause that allows the Building Inspector to address unsafe structures immediately. Rick McMenimen asked if the notice needs to be provided to the Historic District Commission prior to any work being done. He expressed his concern with this suggestion stating there may be an instance where the public’s health and safety is at risk; waiting for a certificate of approval could jeopardize that safety. He felt the Building Inspector needed to have the authority to deal with emergencies and act in the interest of safety. The Historic District Commission should not interfere with life safety issues. Val Shelton suggested the wording provides the Building Inspector the flexibility to act in the event of an emergency by not specifically stating the Certificate of Approval be provided prior to the work being done. Chairman Badger added this document would be reviewed by legal counsel.
Chester Jablonski asked if Code Enforcement Officer Dan Vincent has a copy of this draft document and whether he provided any input or suggestions. Town Planner Diane Hardy noted Code Enforcement Officer Dan Vincent has been out ill. She would touch base with him when he returns. She added in the event of a public safety threat, the Building Inspector would have the authority to make life safety decisions.
Appeals
Town Planner Diane Hardy noted this portion of the draft is directly out of the RSAs. Chairman Badger noted this provides the applicant the opportunity to determine why an application is denied and to reapply within 30 days for a rehearing before appearing before the Zoning Board of Adjustment. Town Planner Diane Hardy agreed stating the Zoning Board of Adjustment is another step in the process before turning to Superior Court.
Val Shelton suggested the applicant should have the right to request a rehearing from the Historic District Commission or should have the opportunity to move directly to the Zoning Board of Adjustment. The rehearing by the Historic District Commission should not be required prior to applying to the Zoning Board of Adjustment.
Enforcement
Chairman Badger noted this ordinance would be enforced under the RSAs and the Town’s other regulations.
Penalties
Chairman Badger noted penalties would also be enforced according to RSAs and the Town’s other regulations. Val Shelton noted timeframes were enforced under RSA 674:33. Town Planner Diane Hardy noted an applicant would have 30 days to request a rehearing and 30 days to request a hearing before Superior Court; these are the same timeframes established for the Zoning Board of Adjustment appeals process.
General Discussion
Janice Rosa suggested 45 days is a long time to wait for a decision for small changes to a building within this district such as painting the exterior. Phil LePage suggested he would assume the Historic District Commission would approve a pallet of colors they felt would be appropriate. He didn’t see this kind of a decision taking 45 days.
Chester Jablonski asked if for small changes the entire Historic District Commission needed to meet. Chairman Badger noted the Historic District Commission would develop Rules of Procedure. Val Shelton noted the Secretary of Interior’s Standards for Rehabilitation do not address paint colors. Chairman Badger suggested guidelines would be forthcoming.
Adam Schroadter suggested improvements should be addressed for Town owned buildings and infrastructure. He referenced the Main Street Project. Val Shelton noted generally the Town is not subject to its own zoning ordinances and regulations. Town Planner Diane Hardy noted if the Town went forward with another streetscape, it would not have to appear before the Historic District Commission, but may want to do so as a courtesy. Adam Schroadter noted the mill buildings would be privately held, but if there are improvements that will need to be made to the road for access purposes, that would need to be addressed at the Planning Board stage of review.
Chester Jablonski felt the Town should go before the necessary boards and commissions as a courtesy. Janice Rosa felt the Town should follow all of its own zoning ordinances and regulations.
Chairman Badger opened the Public Comments at 8:09 p.m.
Gerry O’Connell of 26 Grant Road and President of the Newmarket Business Association stated he liked the idea of specifically including strengthening the business community under Section 5.09(A) Purpose. He felt the Historic District Commission should foster the business community and district as a whole; not just regulate it. He asked if under Section 5.09(B) Overlay District Boundaries if “District boundaries may be amended and new districts may be proposed following the enactment procedures of RSA 675” meant the boundaries may be expanded or reduced. Town Planner Diane Hardy answered that was the intent.
Gerry O’Connell asked how Section 5.09(C)(1) Authority would fit with new businesses moving in to Town. He referenced Section 5.09(C)(2) stating he agreed with the suggestion the Newmarket Business Association or Advisory Heritage Commission may not always be around. He agreed with the suggestion to change the membership to two members of the business community within the designated district. He questioned whether the Advisory Heritage Commission would still be in effect when the Historic District Commission is formed. Town Planner Diane Hardy explained a new Commission would be formed, but the Advisory Heritage Commission would have its own separate charges and would remain.
Gerry O’Connell asked what the differences would be between the Advisory Heritage Commission and the Historic District Commission. Town Planner Diane Hardy explained the Historic District Commission would have regulatory powers under the RSA to regulate construction and improvements to the exterior of buildings within the designated area. The Advisory Heritage Commission would deal with broader issues such as fostering the cultural heritage of the community, educating the public and keeping a running inventory of historic parcels. Gerry O’Connell asked if an applicant would be required to appear before both Commissions for approval to make improvements or changes. Phil LePage felt the Advisory Heritage Commission’s focus would turn town wide after the Historic District Commission is created. He suggested the Advisory Heritage Commission may give an annual historic preservation award. The Advisory Heritage Commission would focus on projects happening outside the Route 108 corridor; they would not deal with the regulations.
Gerry O’Connell asked if there would be any scenario an applicant would need to work with both the Historic District Commission and the Advisory Heritage Commission. Chairman Badger, Town Planner Diane Hardy and Phil LePage all felt there would not be a situation where an applicant would need to appear before both Commissions. Town Planner Diane Hardy explained the Advisory Heritage Commission would maintain a general inventory, conduct research, publish findings and develop a cultural resource plan. The Advisory Heritage Commission would have a broader scope of charges.
Gerry O’Connell felt having members with a background in historic preservation and real estate would be beneficial. He asked about the representative at large. Chairman Badger noted the representative at large could be any resident from Town. Gerry O’Connell noted over 50% of the properties within the Historic District are residential. He suggested two members of the Commission should be residential property owners since that is the group that will be affected the most. He asked how the alternates will be appointed; whether it would be a Town Council process; and how it would be determined whether the applicant is the right fit for the Historic District Commission. Judith Carr noted the applicant would fill out an application and then the Town Council would review it. The applicant would be welcome to speak prior to nominations. The Town Council would then make nominations and take a vote.
Gerry O’Connell noted there are courses offered on historic preservation. He felt it would be a good idea for each member to attend the course. Chairman Badger acknowledged that was a good point. He was unsure whether training was covered in the ordinances or whether the Historic District Commission would need to include that in the rules of procedure. Town Planner Diane Hardy suggested the New Hampshire Preservation Alliance provides a lot of training programs. She was unsure whether it could be mandatory to require members to attend training.
Gerry O’Connell referenced the members operating a business within the district asking if they also needed to be residents of Newmarket. Town Planner Diane Hardy noted it was clear members needed to be residents. Janice Rosa noted there are other committees, such as the Downtown TIF that does not require its members to be residents. Val Shelton asked if the membership would be regulated by the RSAs. Town Planner Diane Hardy suggested she would need to look at the RSAs and Town Charter.
Gerry O’Connell asked if current property owners would be notified before the Historic District Commission is formed so they will be aware of it. Chairman Badger noted the Planning Board would hold a public hearing. The Town Council is required to hold at least one public hearing for possible adoption of any ordinance. Town Planner Diane Hardy noted zoning changes do not require noticing all property owners affected. The Town of Newmarket typically does notify property owners to ensure the transaction is as transparent as possible. She recommended all property owners be notified.
Gerry O’Connell asked what would be grandfathered. Val Shelton noted the ordinance would apply to permits for changes. Town Planner Diane Hardy agreed stating what exists today is exempt from conforming to the new ordinances. Any new changes will need to comply.
Gerry O’Connell agreed indicating a property is within the Historic District on the tax cards is a good idea. Pointing out where the information can be obtained will also be helpful. Anyone looking to purchase property will do their due diligence and view the tax cards.
Gerry O’Connell noted requiring a public hearing could be cumbersome and time consuming. He asked if an applicant complied with all the regulations if they would still need to appear before the Historic District Commission. He suggested everything may not have to go through the Historic District Commission.
Gerry O’Connell asked if the penalties are defined clearly. Town Planner Diane Hardy noted the penalties are outlined in the RSAs. Gerry O’Connell understood the meetings would be public and records would be taken, but he questioned whether the meetings would be duly noticed. Chairman Badger noted the meeting would be noticed in two places as every other Town meeting is.
Gerry O’Connell asked if the Historic District Commission would make the Town Council aware of any issues the creation of the ordinance has raised as well as any issues within the ordinance. Chairman Badger noted the Town Council has the authority to implement or amend any ordinance within the Town. Although the Planning Board will strive to submit a perfect document to the Town Council, the Town Council has the authority to make changes they feel is appropriate. He felt it was important the Historic District Commission provide an annual report of its accomplishments, goals and objectives.
Town Planner Diane Hardy answered Gerry O’Connell’s question about penalties by referencing RSA 676:17 stating: “Any person who violates any provision of … any local ordinance … adopted under this title … shall be guilty of a misdemeanor if a natural person … and shall be subject to a civil penalty of $275 for the first offense and $550 for subsequent offenses for each day that such violation is found to continue after the conviction date or after the date on which the violator receives written notice from the municipality that the violator is in violation, whichever is earlier.”
Phil LePage commended the Board on a great job creating this draft ordinance. He felt the membership as amended by the Board tonight would create a good mix of interest. He felt the language Val Shelton has mentioned throughout the discussion was helpful and would provide additional clarity. He hoped there would be signage to mark the Historic District boundaries which would help notify potential buyers as they were doing their due diligence. Providing the information on the tax cards would also be helpful. He suggested a lot of proposals would be submitted to the Historic District Commission in conjunction with an application submitted to the Planning Board. He agreed the 45 day timeframe could be tight. The Advisory Heritage Commission has held special meetings after being duly noticed to work with developers. It is important this Commission and the rules set up as a result of its formation not thwart business opportunities in Newmarket. He agreed the submission of a write up for the annual Town report was a good idea. He felt it was important to have business owner representatives as well as residential property owner representatives. Many historical districts throughout the country are purely residential in nature.
Val Shelton noted the membership is comprised of two business owners. She asked if the Advisory Heritage Commission would be opposed to relinquishing one of its representatives to allow for two residential property owner representatives in order to keep the membership at seven. Phil LePage stated he could not speak for the Advisory Heritage Commission but could bring that up for discussion up at the next meeting.
Janice Rosa hoped Gerry O’Connell and Phil LePage would get feedback from their respective organizations to provide to the Planning Board. She was disappointed more representatives from both the Newmarket Business Association and Advisory Heritage Commission were not present for tonight’s meeting. Chairman Badger noted this is a Planning Board workshop; there would be at least one public hearing held on this subject. Gerry O’Connell noted the Newmarket Business Association was meeting Thursday night. He would have more input following that meeting.
Chester Jablonski asked why it was important to include two residential property owners. Gerry O’Connell noted they would be the ones most affected. Adam Schroadter agreed it was important to have two residential property owner representatives.
Chairman Badger noted Val Shelton would email Town Planner Diane Hardy proposed wording changes.
Town Planner Diane Hardy asked if the Board was amenable to reducing the number of Advisory Heritage Commission representatives in order to allow an additional residential property owner representative and keep the membership at seven members.
Rick McMenimen asked if repairs to any buildings would require ADA compliance. Town Planner Diane Hardy suggested ADA compliance would be required if the building or proposal meets certain thresholds. She noted this is addressed in the RSAs and the ADA accessibility guidelines.
Chairman Badger noted the Planning Board is meeting on February 17, 2009 for its regularly scheduled meeting. He anticipated a light agenda. He suggested, after speaking with Town Planner Diane Hardy for confirmation the revised draft ordinance could be provided to the Board for review, the public hearing could be held the same night. If the Board chose to do another workshop, additional noticing would be required. Town Planner Diane Hardy explained Planning Board meetings are required to be noticed 10 days in advance. The revised document needs to be ready for public review by the date of initial noticing. Chairman Badger noted he would not be available in March; he wanted to continue to be part of this process. The Board agreed to hold the public hearing on February 17, 2009. Town Planner Diane Hardy noted she would need to gather a list of homeowners so notices could be sent out on time. Phil LePage suggested he could help with that information.
Other Business
Rick McMenimen noted he attended a Strafford Regional Planning Commission (SRPC) meeting the other night. The SRPC has agreed to hold their fees to the same as last year; there would be no increase this year. They would be working on the NH Coastal Program as well as a transportation project to promote bicycle riding throughout Town. These programs are fully funded by the State. Val Shelton noted Newmarket has regulations against allowing bicycles on sidewalks.
Janice Rosa noted the Veteran’s Memorial Trust Committee would be holding a fundraiser at the Riverworks in the dining room beginning at 5:00 p.m on February 3, 2009. Riverworks is donating 10% of the proceeds from the event towards the memorial.
Adjournment
Action
Motion: Rick McMenimen made a motion to adjourn at 8:49 p.m.
