Minutes
NEWMARKET PLANNING BOARD MEETING
MAY 13, 2014
MINUTES
Present: Eric Botterman (Chairman), Diane Hardy (Town Planner), Janice Rosa, John Brackett, Dan Wright (Town Council ex officio), Ginger Smith (Alternate), Jane Ford
Absent: Val Shelton (Vice Chairman) excused
Called To Order: 7:03 p.m.
Adjourned: 9:33 p.m.
Agenda Item #1 – Pledge Of Allegiance
Agenda Item #2 – Public Comments
Chairman Botterman appointed Ginger Smith to fill in for Val Shelton.
None.
Agenda Item #3 - Review & Approval of Minutes: 04/08/14
Action
Motion: Janice Rosa made a motion to approve the minutes of 04/08/14
Second: John Brackett
Vote: All in favor
Agenda Item #4 – Regular Business
Consideration of Appointments to Open Positions
Chairman Botterman stated Val Shelton was appointed by the Town Council to the Economic Development Committee and John Brackett was appointed to the Conservation Commission.
NIP Lot 6 LLC/Shearwater Investment Corp. – Continuation of a public hearing for an application for Major Site Plan review, at 2 Forbes Road (NIP Lot 6 LLC), Tax Map R3, Lot 9-6, and 181 Exeter Road (Shearwater Investment Corp.), Tax Map R3, Lot 8, both in the B2 Zone. The proposal is for a 24,000 square foot expansion of the existing industrial building located at 2 Forbes Road, with associated parking, drainage, and landscaping improvements. Pending site plan approval, the lots will be merged to make one lot.
Rob Graham represented the applicants. At the last meeting some concerns were raised about general site issues. Also, there were concerns about the exportation of material and excavation. They had agreed to have a site walk. The initial concerns were of the area along Route 108, some were about NH Department of Transportation (NHDOT) and some were regarding a buffer to Mr. Portyrata’s property. The site walk was well attended and there was good discussion. Some decisions were arrived at, in terms of areas where the plan could be improved upon. They addressed the concerns along Route 108, with a new grading plan and berm, which eliminates the guard rail, but allows for more plantings and a better vegetative buffer, as well as a plan to better shape the earth along the highway edge for aesthetic purposes. They discussed with Mr. Portyrata his interest in retaining more of the vegetative buffer. They reached an agreement with Mr. Portyrata to purchase his property.
Joe Persechino, Tighe and Bond, the engineer for the applicant, handed out some new plans to the Board. He stated, on the site walk, they walked along Route 108 and looked at where the cut would be for development of the site. It was agreed upon to shape or add additional fill to create more of a berm and additional plantings on top, with white pines and Colorado spruce. This will provide a year round vegetative buffer. He stated, since Forbes Road, which provides access to the site off Route 108, is a Town roadway, they are not required to get a NHDOT permit. However, the Town can request DOT to provide additional comments and file a permit on their behalf. Diane Hardy stated they had some discussions on having a traffic study done regarding the left hand turning lane.
Joe Persechino stated there was a new development on the plan. There is an existing vegetative buffer that is now part of this new plan. They shaped the berm to be more defined. There will be a 5 to 6 foot continuous berm, as you drive along the Route 108 roadway. You would not be able to see over that, as you drive along in your car. The berm will be planted with evergreens, white pine, and Colorado spruce that bulk up and provide a continuous screen. The second buffer issue discussed at the site walk was the buffer to Mr. Portyrata’s property. Mr. Persechino showed the Portyrata residence location on the plan. The excavation for the development that is next to his property would be done last. They have an agreement with Mr. Portyrata to purchase his property. A copy has been provided to the Town. The Portyratas can take their time moving without having an excavation at their doorstep. Mr. Persechino stated they have received the Alteration of Terrain permit from the NHDES.
Ginger Smith asked if they had planned for erosion on the steep slope. Mr. Persechino showed the grade on a plan. They have specified a heavy duty erosion control blanket. It has an erosion control seed mix that roots deeply. It is an engineered slope.
Dan Wright stated they were removing this fill to be able to build the proposed building. He asked if they had a tenant. Mr. Graham stated they have two perspective tenants they are working with, but have no finalized agreements. Dan Wright clarified that the site would be cleared, but no foundation (or pad) would be poured for the building. Mr. Graham stated they would proceed to prepare the site immediately. That would take them down to subgrade, with drainage control. They would not pour a pad until they knew where they would put fixtures for the inside space. Dan Wright asked if they were removing material for the sake of removing material. He asked them also to explain the history of the Newmarket Industrial Park. Mr. Graham stated there are five buildings currently in the park. There are no vacancies in those buildings. That is why they are expanding. They will be removing approximately 100,000 yards of material from the site. This sounds like a lot to the layperson, but, in the excavation industry, that is not a lot of material. He stated he understands the Board’s concerns. A lot of Boards wrestle with this issue. With the amount of money that has already been invested in engineering plans and is about to be invested in purchasing Mr. Portyrata’s property, they have far exceeded the value of any material there. The idea they would be doing this just to take material out, makes no sense financially. It helps with the site and does provide some value to offset some expenses. They have not even gotten into the cost of actually prepping the site for construction.
Dan Wright stated someone had sent him some information on 5 Forbes Road that said there are 20,000 square feet of space available. Mr. Graham stated that is not a building they own, their industrial spaces are full. That is probably Russound. If they have a vacancy, they are probably looking to sublet or lease inside their building. They don’t own the building.
Ginger Smith asked what the industry was going into the proposed new building. Mr. Graham stated it was light manufacturing. The addition will be to the building which is immediately adjacent to the cemetery.
John Brackett asked if this falls under what would be considered excavation. Chairman Botterman stated, if you excavate more than 1,000 yards and are hauling it offsite, you have to pay taxes on it with the State. If the Board determines this is for the building, then there is no other discussion to have. It is not an excavation permit. It is a site plan review, which he happens to think it is. You cannot put another building there without doing this. He stated Dan Wright has a valid concern. They do not want to see the site excavated and then have it sit there idle. He does not believe the developer does either. They have gone through the Alteration of Terrain (AOT) permit with the State Department of Environmental Services (NHDES). He understands, too, the developer can’t just build a building the minute he excavates, because he has to get tenants.
Dan Wright asked what the difference in setbacks would be if this was considered an excavation. Diane Hardy stated one of the biggest differences is if it was considered an excavation site under RSA 155-E, there is a requirement that the applicant must maintain a fifty foot (50‘) setback (buffer) if the excavation occurs below (adjacent to) a State road. Also, if there are opposing abutters, you have to maintain a 50’ setback between the excavation and the boundary of said property if the dwelling is within 150 feet of any excavation. The State requirements, which are included in our Town excavation requirements by reference, are more stringent with respect to the local setback for excavation sites. The current site plan regulations have a 10 foot buffer requirement in the B-2 zoning district, where a site subject to site plan review abuts an adjacent residential property. However, in accordance with Section 3.06 (B)(1)(b) the Planning Board has the ability to require additional setback requirements to screen specific impacts. There is a rear side yard zoning requirement in place. This plan is in compliance with that. The site plan shows it is 84 feet from the furthest point on the building to the state right of way. The rear setback requirement for the B-2 zone is 30’ under the Town’s zoning regulations.
Chairman Botterman asked if there was a time frame to start construction on a building after approval. Diane Hardy stated she was not aware of one. There is a “vesting” statute which states that if active and substantial development has begun within 24 months after the date of approval then the applicant is exempt from zoning and other regulations changes for a period of five (5) years and permanently after which substantial completion occurs. So, there is an incentive to a property owner to move expeditiously ahead with projects once they are approved.
Mr. Graham stated they were solving their issues with respect to Mr. Portyrata’s property, because they have an agreement. They solved the issue of the setback on the other property line, which is where the excavation setbacks would impose on them on that side of the plan. NH DOT has no issue with them creating this slope outside of the state right of way. The setback for an excavation becomes onerous, because no one is asking for an excavation. Applying that setback would turn this property into only an excavation. If you move the toe of the slope and it cuts off almost half of the building. Then they cannot fit the site plan. They tried a lot of alternative designs. What is left is all of the other authorities they need to solve issues, whether they are design, construction, or good neighbor issues. They are moving forward legitimately with the site plan process for a building, they should be adjudicated under that process. Imposing setbacks from the excavation ordinance would be arbitrary and onerous for them. It does not make any sense.
Diane Hardy stated Dan Wright had asked what the buffer requirements were. They are contained in Section 3.06 of the Landscaping Requirements. In the B-2 zoning district, a 10 foot buffer shall be required where the site abuts an adjacent residential property or other property for which a buffer is deemed appropriate by the Board. It goes on to say in paragraph 2, the buffer will be suitably vegetated and landscaped, with existing trees maintained. Where abutting properties would be subject to undue impacts, the Board may require specific plantings or an expanded buffer area to screen specific impacts. In the B-2 zone, it is a 10’ buffer. However, if the Planning Board feels a larger buffer is appropriate to screen impacts, the Planning Board may require that. That is in the site plan review regulations.
Diane Hardy updated the Board on her discussions with NH DOT. She stated they did discuss the intersection and concerns associated with increased traffic. There was a study that was done, when this plan came before the Board in 1997, where it stated the intersection was operating at a level of service “E” for left turns out of the Industrial Park. Everyone who is familiar with the area and has driven down Route 108 in rush hour knows what she is talking about. She and NHDOT talked about who has jurisdiction over the intersection. Forbes Road is a Town road. There was a suggestion that some preliminary study could be done by DOT to update that 1997 study with current traffic to see whether the intersection is still functioning at that level. Also, they would look at some possible mitigation to improve the situation. Mr. Pernaw is here and he was going to put together some data and a mitigation plan. In the future, the Town could go forward with that information and get that project on the State Transportation Improvement Plan (STIP) for funding. Mr. Graham stated they had done some initial traffic counts, with the potential of doing some other warrants and review to help with some planning aspects. They know there are restraints there. With getting through the excavation issue and site plan, they haven’t pushed further into that aspect of the design. Steven Pernaw, Pernaw & Company, stated they have all of the information they need. He did not receive the email from Diane, they have had problem with their internet, with information about the gross floor area. She is going to resend it to them.
Chairman Botterman stated they have accepted this application and had a site walk. It has not gone to Underwood Engineers for review or had a Technical Review Committee (TRC) look at it.
Diane Hardy stated she had a letter from Mary Pinkham-Langer, with the NH Department of Revenue Administration, who is in charge of the excavation appraisal requirements of the State, under RSA 155-E. She looked at the project and provided the Board with her recommendations. At the first Planning Board meeting for this project, there was confusion as to whether this project comes in under the State and local excavation laws or if it would require a site plan approval to proceed. Diane Hardy recapped some of the comments and discussions contained within the letter. The regulation of excavations or the commercial taking of earth is a function of the Planning Board. There is one regulated pit in Newmarket that has come before the Board every three years for permitting renewals. There are exceptions to the provisions of RSA 155-E. If an excavation is exclusively incidental to the construction of a building, the State and Local excavation regulations do not apply to the excavation. This is not an exemption, it is an exception. However, it is not an automatic exception. It is within the purview of the Planning Board to determine whether the application is subject to the local excavation requirements and RSA 155 E. The Planning Board, in making that determination, needs to consider all of the circumstances, the scope of the proposed project, the overall intent, the impact and the duration of the project based on the facts that have been submitted by the applicant. This topic has had quite a bit of discussion within the courts and there is a section within Peter Loughlin’s Land Use Planning and Zoning law book about excavations.
The letter stated excavation incidental to construction should be just that and should not permit excavation of many thousands of cubic yards of gravel to be removed on the pretext that it is incidental to construction. This begs the question for the Planning Board to consider and debate whether this application before them requires site plan approval or approval under RSA 155-E and the Town’s regulations governing excavations. She stated given the information that has been provided, commercial excavation is an allowed use within the B-2 District. The difference is, under a commercial excavation, the applicant would have to provide an excavation plan, a reclamation plan, and a bond to ensure that, after the site has been excavated that it is reclaimed, and is properly done, i.e. the vegetation has grown in, and the site is properly stabilized. We have already talked about the differences in the buffer and setback requirements. The conclusion is the State excavation laws are more stringent than the current Town zoning and site plan regulations. However, this Board can require more of a buffer than is currently required by our site review ordinance, which is 10’, if the Board feels it is necessary to address potential impacts from the proposed development to adjacent properties.
Chairman Botterman invited Ed Portyrata to speak. He wanted to hear from him about the sale of his property.
Mr. Portyrata stated he and his wife have lived there for some time and are comfortable there. Recently, his wife went to the ER three times. They cannot do what they really want to do anymore. He will be 89 next week. They have been given a good opportunity, in that they can stay in the house for another couple of years. His children are grown and are not going to come back to NH for the house and his grandchildren are not either. They can be in it for another two years. They are deciding. Two years gives them time to see what Mr. Chinburg is going to build at the new subdivision on the golf course nearby and see if those houses are something they are interested in. They would like something new, where they don’t have to do too much work to it. They are looking around for condos, too. He has read the rules and regulations about the abutters. He knows if he said no, they could not come that close and still have to give them 50’. He is, however, in agreement with a reduced buffer, because the applicant gave them some other things that they could do. This is a lot of property to take care of and the traffic on Route 108 is terrible. His wife has asthma and they would like to be out of the way of the main road.
Janice Rosa stated she went on the site walk. The representatives of the applicant did very well answering questions. It is a big undertaking. She stated when the site walk took place, they did not have a tenant or a contract. Mr. Graham stated they are not under contract. They are working with prospective tenants. Janice Rosa asked for clarification on whether they bought Mr. Portyrata’s house in order to expand the park. Mr. Graham stated that was potentially correct. Janice Rosa asked how long it would take to remove the fill. Mr. Graham stated they hope to be able to get the material out of there within a year to eighteen months. He did not know if they will be able to do that, depending on timing and construction pattern. They cannot afford to rush it and pay to get rid of it. They would like to get into a construction process, in the best of worlds meaning getting started on a building, either next fall or spring.
Janice Rosa asked, if this was approved, could the Board have a condition where the fill would be removed within a certain timeframe. Diane Hardy stated they could do that. Mr. Graham stated it was in their interest to move quickly, but it is not always possible. They don’t want to get into a situation where it would cost them to move it. It could cost $700,000-$800,000 to move that material if they have to move it by a deadline. They would have lost their investment, there would be no building. Janice Rosa stated he had said on the site walk they would not be selling that material to finance the project. Mr. Graham stated they do expect to offset some of their costs by getting rid of the material. If he was told they had to be done in sixty days or even a year, it changes the dynamic of how he would have to move that material. That is where the cost structure comes in. It would be helpful for everyone to have a regular period of update with the Board, as part of their construction management plan. The first part of construction management is good communication and constant updates, so the Board knows where they are at, what is going on, so there are no surprises in timelines. A lot of issues can be solved in construction management, such as erosion control.
Janice Rosa stated right now they are working with a client toward an agreement. If that client signs an agreement in the next month, then they would not be looking at an 18 month timeframe. Mr. Graham stated they would still be planning for the same construction. Their best construction cycle right now would be to start constructing a building next fall to be weather tight and to be able to deliver the following spring. There is a lot of timing that goes on.
Jane Ford asked about concerns regarding large construction vehicles being in the area while construction is also going on at the golf course. Chairman Botterman stated he thought all of the heavy work will be done at the golf course before they start building at the Industrial Park. Mr. Graham stated they will be working from the access point behind the site, not on Route 108. The contractor putting the road in at the golf course is their own contractor, as well. As part of the TRC process, the Board will want to address those issues (truck traffic, noise, dust, air quality). If the contractor had a big push going on, they would not want to time anything at the same time.
Dan Wright stated Mr. Portyrata has a year and a half to live in his house, unless he provisions for an extension. He asked when the final phase of grading would be completed. Mr. Graham stated that would happen when Mr. Portyrata moves out. His agreement with Mr. Portyrata is to preserve some trees in the back corner of the site. They expanded that area in the bubble diagram they have given the Board. That covers the area where there is vegetation. The other area is where the slope ties back into the property. The agreement is that they would leave that alone as they are trying to make a better environment for Mr. Portyrata. They are around 25’ or 30’ off of the line, where the requirement is 10’. They have some practical issues when they enter the site. They have to start at the top of the hill. They would work in the berm areas up top to get those reestablished. Then they would start benching down. Very likely, they would be quite a distance off of Mr. Portyrata’s until the very last phases of that first grading area.
Dan Wright stated for a year to eighteen months, this will be an excavation site. There is so much flex space and industrial space out there. He is having a hard time seeing this as anything but an excavation site. Mr. Graham stated his client owns quite a bit of industrial real estate, with only 6,000 sq. ft. that is vacant in Stratham. The issue with industrial property in NH and the northeast is it was built by the old 1980s industrial paradigm. It does not work for new clients. The ceiling heights are not high enough. The construction standards have changed. The properties that are vacant were designed with the old requirements or were custom built for a specific tenant. Those buildings, a lot of times, get torn down. You need to have a lot of flexibility to have these buildings for long periods of time and have tenant changes. The industrial tenants want higher racks and smaller footprints. They want the space to be more efficient.
Chairman Botterman stated he looks at it that the excavation is there to support the building. It is a tough site. The building they are proposing is on one corner, 30’ below what is there, so a lot of materials will be coming out. The site could be designed a little differently, but by and large he didn’t see anything else that could happen on this site. He stated the excavation supported the construction of the new building.
Jane Ford stated she was concerned about the timeline. If they do the excavation, who knows what will happen in twelve to eighteen months? That will just be a big hole sitting there. Chairman Botterman stated it would be a different slope.
Janice Rosa stated she was on the site walk and they were very accommodating to requests regarding the buffering and landscaping and for Mr. Portyrata. Her problem with this is she does see this as commercial taking of the earth. If the Board approves this, she would like to see some types of permits put into place. She feels it is a gravel pit and the purchase of Mr. Portyrata’s property supports this.
John Brackett stated he understands there is a lot of good material in the slope and underneath Mr. Portyrata’s property. He is concerned about runoff, airborne materials and the impact of those on neighbors. He would like to see it happen in a quick manner with the slope stabilized and vegetative cover put in, as well as fabric. He asked if Forbes Road could handle the trucks. Chairman Botterman stated as long as they were of legal weight, they have every right to drive on the road. John Brackett stated the excavation and development of the site appears to be a “happy coincidence” and thinks it is a good plan.
Ginger Smith stated if the company in the building now needs more space, then they should have more space. It looks like it would be big enough to grow.
Chairman Botterman asked if the Board was comfortable sending this to TRC and having the engineer look at it. Diane Hardy stated the question of whether this is an excavation is really not a technical question, it is a policy question. This Board can make this decision and attach some conditions. There could be a condition where, after two years go by and nothing has happened, the applicant needs to come back to this Board and explain the reasons for it. It would be up to the Board whether to extend the time. This “checking in” concept has some merit.
Mr. Graham stated he was hearing issues that he felt would be resolved with construction management. Regarding runoff and drainage control, they are infiltrating 100% of the drainage. Their drainage design is at the highest level and has been passed by Alteration of Terrain. He wanted to make sure the Board was not under the impression they were going to go in, tear open the site and leave it like a bomb went off. They will move in, arrange the site, the buffers will be planted. The only people looking at the slope are themselves. As they excavate the slope and pull the material out, they will have periods when they are pushing to move material. They will only have specific areas of the site open, only what they need to have. They would make sure the rest of the site was controlled and stabilized. If anyone has a concern that something is not being properly done, it is an issue of communication. Those are easy issues to take care of.
Diane Hardy stated a condition could be there is some kind of phasing plan to show how this will be approached, just to be assured it will not be entirely opened up without site construction.
Mr. Graham stated the issue with excavation is a meaningless setback that makes them not able to build a building. They would really like to move forward.
Jane Ford asked John Brackett to elaborate on his comments about the value of the material. John Brackett stated the Severino Trucking representative on the site walk had said the sand was beautiful. He had the impression that is the material they dream of. They could find a home for that anywhere. There is a value to it. Jane Ford stated she heard a ballpark figure of $700,000 - $800,000 as an investment to do this work. Mr. Graham stated he had been talking about if they got into a situation where they had to immediately remove that material, it costs money to do that. The amount of investment they have in land and the cost it will take them to get to a site plan, far exceeds this. If he could walk in and build a building right now on a flat site that is what he would rather do. Jane Ford stated she wanted to understand the value of this material vs. their investment. Mr. Graham stated it would cover a third of their costs. It is good material and that helps them move it faster. The slopes are also more stable. Jane Ford stated she is hoping the sale of this material is not part of the twelve to eighteen months. Chairman Botterman stated he thought what they have said was that they are going to excavate this material and sell it to someone. Next month, there could be no market for the material. They may do no excavating for a few months. There are no guarantees this excavation will be done in a year or eighteen months. It will be based on the market. Jane Ford stated she was worried about it being so open ended. Mr. Graham stated it would be no different from the site sitting there now. It is steep sloped. They are only moving the slope back. They do not want to have a site that looks like a bomb went off. Mr. Persechino stated they got the Alteration of Terrain permit that has a number of conditions that go along with how much of an area you can have open and disturbed, then they have to stabilize it. If they are going to stop working for a period of time, then the site has to be stabilized. There is also a storm water pollution prevention plan with erosion controls that is required as part of that process.
Diane Hardy stated the Town would likely require a restoration bond based on what it would be required to restore the site back to a reasonable state, stabilize the site, and have adequate vegetation in place to prevent erosion and slippage, etc. All of those issues can be addressed through bonding, a phasing plan, and specific conditions as to the timeline and by having the applicant come back in the future to check in on progress.
Dan Wright stated he felt there should be an excavation permit.
Jane Ford stated she was in favor of having a bond and evaluation period.
Janice Rosa felt it was an excavation site.
Chairman Botterman stated he felt it was a site plan.
John Brackett stated he was in favor of the bonding and this should move forward to the next step of the site plan review process.
Ginger Smith stated she agreed with the bonding.
Diane Hardy stated she wanted to clarify for the record, there are two Board members who feel this is excavation and four who feel it is development.
John Brackett stated it is a little bit of both. It is development that just happens to be on some beautiful ground.
Janice Rosa stated she would be happier if there was a client in place.
Diane Hardy stated they may need another time extension. Mr. Graham stated he would put something in writing for that.
Chinburg Builders - Design Review for a subdivision at 74 Bald Hill Road, Tax Map R7, Lot 24, R1 Zone. The proposal is for a two lot conventional subdivision to create an 11.41-acre parcel to remain with the existing residence and on the remaining lot there will be a subsequent/concurrent ten lot Residential Open Space Development on approximately 36-acres of land.
Christian Smith, an engineer with Beals Associates, represented Chinburg Builders. They had an initial Design Review hearing with the Planning Board in March. The boundary is shown on the aerial photo. It was brought to his attention today there was a survey error on the plan. On the conventional subdivision plan it shows the area as 35.97 acres. They now have a 90% completed survey from Doucet Survey that shows the lot is 40.46 acres.
Mr. Smith stated they tried to address some of the concerns and comments from the last meeting. Looking at the conventional yield plan after the Hayden home parcel is cut out, they eliminated the second spur. The plan shows 10 conventional lots. The requisite upland is within the minimum 2 acre parcels. They did some preliminary test pits and show some areas that makes sense for drainage mitigation. In addition to the boundary work, there is also a topographic survey and an existing conditions survey in the area of what they hope will be the open space development. They will be looking for a waiver for a reduced road width, which is consistent with the Residential Open Space Design Development Ordinance and for what is going into conservation. They would hope the interpolated topography that has been provided will be good enough, so they would not have to provide field survey for the topography for the entire hill. They will have the completed boundary survey.
Mr. Smith stated regarding the open space proposal, they started with the Hayden parent parcel carved out, which left them with 29.9 +/- acres. They went through the density calculations and have laid out ten proposed lots, which leaves just over 21 acres in open space and preserved the entire top of the hill and that view shed. They have put 75’ setbacks from the parent parcel boundary. Each lot has a comfortable developable area. The lots range from 30,000 sq. ft. to Lot 11 which is the largest, with a great deal of it taken up by the 75’ buffer. That one is about 53,000 sq. ft. He said they average 33,000 to 34,000 sq. ft. on each of these lots. It gets the cul de sac road length down to roughly 800’.
Mr. Smith stated they did leave the 25’ foot wide fee access at the end of the cul de sac for residents. Dan Wright asked if this was for anyone or just residents. Mr. Smith stated it would be open to the public. His point in saying that was that the previous plan did not contemplate an actual fee strip from the roadway.
Chairman Botterman allowed the public to comment.
Jeff Moore, 87 Bald Hill Road, Newfields stated he was an abutter. His concern was about the character of the area. At the last meeting open space was discussed. There is already quite a bit of open space/green space designated within the last few years in the area. He voted for it to pay for it with his taxes. He stated this changes the rural character of the location. He stated this was the R1 district (Section 2.09) and he read the description of that district from the Zoning Ordinance. He stated Mr. Hayden had every right to develop his property. He referred to Section 6.0 for Residential Open Space Development. He stated the two Zoning Ordinance sections he mentioned conflict. He stated, if Mr. Hayden wanted to develop his land with two acre lots, he would not be standing here. It would maintain the character of the area. He was concerned about noise and the character. He stated there are currently two acre lots with capes and colonials and a couple that were grandfathered. Quite a few are former farms. He stated this was a lot of density. The two acre zoning goes with (is more compatible with the intent of) the R1 District vs. the open space development. He would rather see the development in the middle (of the tract) back there and give them more of a buffer. He stated this proposal is right on the road. It does not fit the area.
Dan Wright asked Mr. Moore if he was saying he liked the yield plan better than the open space development plan. Mr. Moore stated he would much rather see the development as shown on the yield plan.
John Bunton, 90 Bald Hill Road, Newfield stated he lives right across from this development. He agreed with Mr. Moore. The character of the open space development has nothing to do with that part of the town. There is nothing in Newfields and there is nothing in Newmarket like that. This is completely unlike the area. He was in favor of the yield plan layout. He did not think the open space was the way to go. It was not in keeping with the character of either town.
Mr. Smith stated someone said the density was greater in the open space development. It is not. You have the same number of units. With the smaller lots, you may not get four bedroom units, so you would have a reduction in the amount of the septic flow. The open space development ordinance encourages a diversity of housing types and opportunities. They are preserving large tracts of land with the open space ordinance. That allows for a reduced road width. That is in keeping with the rural feeling of the neighborhood. The front parcel will be approximately four acres. There is a 75’ well-treed buffer between Bald Hill Road and the building envelope to proposed Lot 11. He did not think the abutters will see a great deal of this development from their homes or the roadway. That 75’ buffer protection was built into the ordinance for a reason. Sites like this, albeit rural and remote, are precisely what the open space ordinance was targeting. If this was a conventional subdivision, there would be a lot more disturbance to the land, a lot more earth moved, a lot more trees cut, etc. The lots are clustered and closer together, but that is in keeping with the stated purposes of the open space development ordinance. This will not have any adverse impact.
Ginger Smith asked if the common land was just for the development. Mr. Smith stated that it would be open to the public.
Ginger Smith asked about a green/yellow area on the plan. Mr. Smith stated Mr. Hayden enjoys cutting firewood. He was not talking about going out there with anything, but a handheld chainsaw. He wanted to keep that area attached to his parent parcel, so he has a fee strip, not an easement, to get out there where there is some virgin hardwood. He can continue to take dead and diseased trees down. He uses these to heat his home.
John Brackett asked if someone wanted to go back into the open space, where would they park. Diane Hardy stated it was a public street, so they would park on the road.
Chairman Botterman stated the applicant and engineer were here to get direction. He asked if the Board was comfortable moving forward with this.
Dan Wright stated he was comfortable.
Jane Ford was also comfortable.
Janice Rosa stated she was also comfortable. She stated she wished more abutters were here to state their opinions.
John Brackett asked if there any provisions for maintaining the 75 foot tree-lined buffer along Bald Hill Road. Diane Hardy stated she believes that it is a setback requirement. Mr. Smith stated that the area will be left in its natural form. There may be a need on the back of Lot 11 to utilize some of that area for drainage mitigation. By and large there will be a woodland buffer.
Ginger Smith stated she liked the open land for the public. They would have a feeling of privacy and freedom. Even the large parcel gives a feeling of freedom. She agrees with moving forward.
Chairman Botterman thanked the abutters for coming forward and urged them to stay involved to help get the best project.
Newmarket Mills, LLC - Public hearing for an application for Site Plan review, at Main Street, Tax Map U2, Lot 57, M2A Zone. The proposal is to convert and expand the existing “Riverdale Automotive” building for a grocer focusing on local produces and meats, with a drive-through coffee service.
Matt Assia, Chinburg Properties, represented Newmarket Mills LLC. He recapped the project, stating last year they received site plan approval for a restaurant use for this site. They are here for a market and coffee shop use. The site plan addressed some of the comments raised at the Design Review meeting. They provided a new dumpster location that is more easily accessible. They demonstrated the queuing of cars at the drive-through. They also explained the traffic flow through the site.
He stated the existing building is 1,800 sq. ft. This proposal presents a plan that would expand the building to approximately 4,000 sq. ft.
Diane Hardy stated she has reviewed the application and it is substantially complete. There are a few details the applicant is working on, which can be addressed by the TRC. She would recommend acceptance for a technical review. She has recommendations. She would like the Traffic Engineer to review the stacking analysis that has been done by Mr. Pernaw and get a second opinion and possibly some suggestions for mitigation. She has been in touch with VHB, who helped with the traffic engineering piece for the mills. They are able to assist. She would like to see the shared parking analysis be updated for the entire project, so they are working with the most current data. There have also been some changes in use on both sites.
Action
Motion: Ginger Smith made a motion to accept the application
Second: Janice Rosa
Vote: All in favor
Janice Rosa is getting feedback from people in the community who are concerned about the traffic flow pattern. Diane Hardy stated VHB could do an analysis and could review the methodology, the data, and the assumptions and provide some comments to the Planning Board on possible mitigation to alleviate some of the concerns that have been raised. They would look at traffic flow and the stacking analysis, layout and design of the parking area.
Diane Hardy stated, at one point, the shared parking analysis was updated when the Board reviewed the retail center project. Since then, there have been changes in the proposed uses of the properties. It is basically a spreadsheet. She would like to see that updated to reflect the new and expanded use.
Chairman Botterman asked for volunteers for the TRC. Jane Ford and Janice Rosa volunteered.
Chairman Botterman opened the public hearing.
Claudie Grout, Creighton Street, stated she has been a resident of Newmarket about four times since 1981, most recently since 1998. She has seen quite a bit of positive change and appreciates what the Town has done to foster development that has promoted walkability and mobility in the downtown. There are some great local businesses. She is concerned about this proposal. She stated there is a drive-through coffee kiosk on the north end of town; there is a drive-through coffee place on the south end of town; and a drive through coffee place in Newfields. She was curious how having a drive through in the downtown combined with a retail center and the traffic flow would connect with upgrades already under discussion and underway for Main Street and Route 108. She is very concerned about pedestrian safety and increased traffic. Having some sort of grocery store downtown is a great idea. Managing traffic and parking is a big issue that has to be addressed.
Michelle Lemeris, 223 South Main Street, stated she owns Crackskull’s Coffee Shop and Books located downtown. She has been in town for nine years. She feels they have come a long way in creating a unique community, with independent shops. Adding another coffee shop, never mind a drive-through, would be creating three coffee shops that are not going to do so well. Right now, there is the drive-through and Crackskull’s. She asked if a drive-through was needed. She used to live in the mill. She lived there for a year. Crossing Route 108 every day is very difficult. Even with the flashing pedestrian signs and other things that have been done to slow traffic down, it is still really difficult. She is right on Main Street and can see the crosswalks all day long. It is really difficult to cross. She is very concerned about safety and the downtown staying “chain-free”.
There were no further comments and the public hearing was closed.
Jeff Clifford, Altus Engineering, stated they would like to present some technical information. He stated the site was originally approved for the restaurant. To make the drive- through, there is a net loss of three parking places. They have an analysis of the parking need they have not yet submitted. The need goes down one spot. They still have an excess of twenty spots. They had twenty-two. They replaced one parking spot with the dumpster, making the dumpster more accessible. The solo parking spot is a great spot for an employee. By moving the handicapped parking spot, they no longer have the difficult spot to get into anymore. There was a question about curbing and they are going to have granite curbing. There is vertical granite to a point then it goes to sloped granite. There is vertical granite on the edge of the building. They understand they need screening at the refrigeration unit and that will be added. There are lights all around the site. The wastewater flow is down significantly from the restaurant use. The snow storage is very limited. They recognize they will have to haul snow off of the site.
They show eight stackable spots for the drive-through. Theoretically, there are ten and that is staying out of the crosswalks.
Chairman Botterman asked how this impacts their NH DOT driveway permit. He stated they know they have to deal with the NH DOT, because it is a change of use. Steve Pernaw will address that.
Jeff Clifford stated there is no closed drainage in the immediate vicinity of the project. The problem is there is a million dollars of electrical upgrade buried in the area and they cannot get to the existing drains. They came up with capturing as much drainage as they can and getting it to the other drainage on the site. They are proposing a catch basin that ties into an existing catch basin. It is shallow to get there, but it does do a lot of good. There will not be water sheeting across the parking lot. There is a drain line that comes down and they can get it above it. There is electrical in one area they cannot cross. They are actually going to decrease the amount of water running overland toward Main Street and put it into the drain system and that has adequate capacity. One drain by the bridge has a stormwater treatment device in it.
Steve Pernaw stated the DOT did ask for additional analysis, since this is a coffee shop, they wanted the morning peak hour evaluated. They are working on that report now. Separate from that, they were asked what they would be dealing with for stacking at the drive-through. In their brief memorandum, they talk about trip generation. This facility does not have indoor seating. All of the customers will be drive-through customers. When you look at the ITE trip generation manual, there is no good match for this type of facility. What they relied on was traffic count data that was done at three other similar facilities in NH, in Dover, Somersworth, and Rochester. All three generated very close to the same amount of traffic. They took the average, rounded it up, and came up with 65 arrivals and 65 departures during the typical morning peak hour period. That period would be 7-8 am. When you run a queuing analysis, there are two important inputs. One is the number of arrivals and the other is how quickly the drive-through can pump out vehicles. He talked to representatives from Aroma Joe’s and they told us it would be 30-40 seconds to discharge a vehicle from that queue. That works out to a capacity of 90-120 vehicles an hour. Using that discharge rate, plus the 65 arrivals, they were able to come up with a queue length estimate of eight vehicles. When you read our memo, it talks about the 95th percentile queue being eight. What that means is 95% of the time, during the morning peak hour, the queue will be eight or less. It also means you could have nine for short instances, but the design number is eight.
Dan Wright asked why they didn’t use the coffee kiosk on North Main Street here in town as part of the analysis. Mr. Pernaw stated he was not familiar with it. He stated Aroma Joe’s is unique. There are no speakers and they are a two-window system. The information in the memo comes from them and they based their analysis on that. Dan Wright stated the other day, there were fourteen cars queued at the coffee kiosk on North Main Street, with both windows of the kiosk operating. It may make a more correct analysis. Mr. Pernaw stated he would talk to the applicant about it.
Janice Rosa asked if there was any guarantee there would be no backup onto Route 108. Mr. Pernaw stated the analysis shows it will not be backing up on Route 108. He qualified that by saying, when he talked about the discharge rate that is a function of the internal operation. They call these people (the workers) baristas. It is a team that makes the coffee. The size of that team varies upon demand. That is how they can control the queuing. He took the lower capacity for his analysis. If traffic is busier, they will have to change the team. If it is a slow time, like at 11:00 a.m., they won’t have the big team on. They will have to control that internal team of baristas.
Dan Wright stated his concern was that 30-40 seconds seems awfully quick. Other Board members concurred. He stated that really jumps out. Mr. Pernaw stated that is during their busy time, when they would use their full staff. With these types of facilities, more than one vehicle is being served at a time. He is not saying you are in line for 40 seconds. The 30-40 seconds is the discharge rate leaving the last window. They used the 40 seconds for their analysis.
John Brackett stated that number is how fast the staff can do it. Not everyone goes through a drive through window completely prepared. Not everyone is prepared to interact early in the morning getting coffee. The number is 40 seconds. He did not see it happening. He stated he is a coffee drinker and has been a “line waiter” for a long time. Thirty seconds, unless they are teleporting out to your vehicle, is not going to happen.
Mr. Pernaw stated when he hears coffee drive-through, he thinks of Dunkin Donuts. Their menu is a lot bigger. Over 90% of Aroma Joe’s customers are for coffee only. Their other menu items are limited.
John Brackett stated he understands where he is coming from, but he would like more data.
Ginger Smith asked if this would change anything for getting into the lot to go to the library. Chairman Botterman stated that would not change the access to the library or the main parking lot.
Janice Rosa asked what time the trucks would be in at the loading zone. Aroma Joe’s traffic will go right past the loading zone. It will take more than 30 seconds if a truck is in there. Diane Hardy stated that was a very good point. She did a preliminary review and you will see on the very last page there is a recommendation the Board consider discussing with the applicant the regulation of hours for loading, so it will not interfere with the drive- through or grocery parking operations. She also thought the size of the loading area is rather small. It is about 20 feet in length. She would like more information on the types of trucks that would be coming in to make deliveries to make sure that is adequate in size. She stated Janice Rosa’s comment is a good one. There is a lot of activity in that area, with the crosswalk, the dumpster, the loading zone, then the drive-through. It is right in front of the driveway, so it is in an area where people will be exiting, as well.
Jane Ford stated she is struggling with what the public has said, too. There was a great article in the Boston Globe about a year ago regarding quaintness and the hometown feel to Newmarket. Aroma Joe’s just does not fit that mode for her and a quarter of a mile down there is a coffee kiosk. How many coffee shops can we have that remain viable? How do we keep that small town feel? She does not know how many people will come here to go to a drive- through called Aroma Joe’s.
Jeff Clifford stated this is also a 3500 sq. ft. grocery. Jane Ford stated she is not questioning the grocery, she is questioning the drive-through.
Jeff Clifford stated he wanted people to understand that the road view will be of a grocery. The drive-through is at the back.
Chairman Botterman stated his daughter is 23 and she drives to Aroma Joe’s three or four times a day to Dover. The young crowd loves it. Whether it is a Dunkin Donuts or an Aroma Joe’s that is not the Board’s purview. Jane Ford stated if they are talking about what they want Newmarket to be and the image it should be “chain free”. Diane Hardy stated she did go to the applicant’s grocery store in South Berwick and she was pleasantly surprised. It is a delightful store, very clean, and everything was very fresh. She encouraged the Board to make a trip there.
Diane Hardy will arrange a TRC meeting.
Eric Chinburg, Chinburg Properties, stated he recognized this was a difficult situation. They have wanted a grocery in this development for a long time. They hoped to have put it in back at the retail building, but could not get anyone to go there. Harry Wesson is a unique operator, in that he has become successful in operating grocery stores that are small. To be viable, they need something extra. When Mr. Wesson came to him and said the only way he could make this work was to have Aroma Joe’s, Mr. Chinburg stated to him did not want to impact the local businesses. They agreed there would be no sit-down service. They do not want to compete directly in that manner. This would be a drive-through. No one would sit down with a book or Wi-Fi and have anything to eat. That was an effort to protect the assets in the community and not step on any toes. It is difficult to balance these things. If the comment is that we have three or four good restaurants, would that mean if someone came in with a plan with a restaurant, they could not do that because we do not need another restaurant, we already have three that are good? He is a believer that the rising tide lifts all boats. He did not think that many of the customers that enjoy the experience at Crackskull’s are the same people that do a drive-through at Aroma Joe’s. He never gets drive-through coffee. He likes to go inside and buy it. There are others who never want to get out of their cars, find a place to park, trip over curbs and go into a place and sit down. They just want to drive-through on their way to work. They are trying to balance a lot of things with this application. He thinks everyone would like a place where they can grab some salad fixings and something to grill on the way home and not have to drive out of town to get them. The way they are going to do that is present an opportunity that makes it viable by giving them an additional use. They did not take this lightly. They believe they have struck the right balance.
Chairman Botterman asked if there were any other comments or questions from the public or the Board. There were none.
Action
Motion: Ginger Smith made a motion to continue this to June 10, 2014 at 7:00 p.m.
Second: Janice Rosa
Vote: All in favor
Agenda Item #5 - New/Old Business
Chairman’s Report
Chairman Botterman stated he will be calling John Badger to see if he would like to serve on the Strafford Regional Planning Commission.
Chairman Botterman stated there are openings on the Planning Board for members and alternates.
Planner’s Report
Diane Hardy stated she had two things. There will be a presentation on June 25, 6:30 pm to 9 pm in the Council Chambers on Storm water Management. This is in preparation for the MS4 Program. This is a requirement under the Town’s Administrative Order with the EPA. This is an opportunity for the public and Boards and Committees to learn about what our responsibilities are under that program. A lot of communities are looking at Newmarket’s storm water regulations the Board put together a couple of years ago, because they are state-of-the-art and considered a good example. Also, the Strafford Regional Planning Commission is having their annual meeting on Thursday, May 29 at the Madbury Town Hall, 11:30 am to 2 pm. The guest speaker is Malcolm McNeill about land use regulation from the developer’s perspective. She intends to attend the meeting.
Jane Ford attended the recent Right-to-Know law session and she stated it was very good.
Conservation Commission
John Brackett stated one of their people went to check out the placards between the golf course development and the wetland area and they were sufficient.
The Commission is also looking for volunteers to pull invasive species.
Other Business
Ginger Smith had paperwork to be copied and distributed to the Board regarding the recent OEP Spring Conference.
Agenda Item #6 – Adjourn
Action
Motion: Janice Rosa made a motion to adjourn at 9:33 p.m.
Second: Jane Ford
Vote: All in favor