Minutes
NEWMARKET PLANNING BOARD MEETING
APRIL 14, 2015
MINUTES
Present: Eric Botterman (Chairman), Val Shelton (Vice Chairman), Diane Hardy (Town Planner), Janice Rosa, Jane Ford, Rose-Anne Kwaks, Ezra Temko, Dale Pike (Town Council ex officio)
Absent: Peter Nelson (Alternate)
Called to order: 7:00 p.m.
Adjourned: 9:56 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Public Comments
None.
Agenda Item #3 – Review & approval of minutes: 02/10/15 & 03/17/15
02/10/15
Action
Motion: Val Shelton made a motion to approve the 02/10/15 minutes
Second: Jane Ford
Vote: Janice Rosa, Rose-Anne Kwaks, Dale Pike, Ezra Temko & Eric Botterman abstained
All others in favor
03/17/15
Action
Motion: Janice Rosa made a motion to approve the minutes of 03/17/15
Second: Ezra Temko
Ezra Temko and Val Shelton made a correction to the spelling of the name “Carrie Moorhead”. It should be Cari Moorhead.
Vote: Eric Botterman, Dale Pike, Val Shelton abstained
All in favor
Agenda Item #4 – Regular Business
Election of Chairman
Val Shelton nominated Eric Botterman to serve as Chair. Janice Rosa seconded. All were in favor.
Election of Vice Chairman
Janice Rosa nominated Val Shelton for Vice Chair. Rose-Anne Kwaks seconded. All were in favor.
Appointment of Alternates
Peter Nelson had reapplied for the Alternate position expiring in 2016.
Action
Motion: Rose-Anne Kwaks made a motion to accept Peter Nelson as an Alternate on the Planning Board until March 2016.
Second: Janice Rosa
Vote: All in favor
NIP Lot 6 LLC/Shearwater Investment Corp. - 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.
Eric Botterman opened the public hearing.
None.
Eric Botterman stated there was a memo from the Town Planner, but asked to hear from the Technical Review Committee (TRC). Janice Rosa stated she missed the February TRC, but they just met on April 1. The entrance to the road is the Town’s responsibility. Diane Hardy’s memo covered everything from the meeting, except the excavation, as that was not addressed at the meeting. The applicant has agreed to everything the TRC has asked.
There was discussion regarding the Town Attorney’s letter to the Board on the excavation of this site. Diane Hardy stated he had said it was up to the Planning Board to make a policy decision based on the facts and information presented regarding the excavation. The Board had deliberated and made a decision at that meeting.
Rose-Anne Kwaks stated, at that meeting Diane Hardy had mentioned the Planning Board was the regulating authority in determining the needs of the Planning Board and should consider whether it is an excavation or a site plan to comply with construction of a building. Diane Hardy stated it is called “excavation that is incidental to development”. Rose-Anne Kwaks stated Diane Hardy had said the Board had the authority to consider that based on the facts presented to them. At that point, it was only the second meeting after the application acceptance on May 13, 2014. Those facts are supposed to be presented by the applicant, so the Board can consider the scope of the excavation and development, the impact to the area, the overall intent and duration. At that point, the Board did not even have a construction management plan and there had been no TRC meetings. She did not know how the Board could have made a decision. The Board never took a vote. There was no motion made in order to state they are exempt from the excavation process. Diane Hardy stated the record reflects it was a consensus of the Board. Rose-Anne Kwaks stated Joe Persechino had mentioned he was looking for an exemption, not an exception, from 105(C) in the Site Plan regulations. Diane Hardy stated that was not correct. This has nothing to do with 105(C). Rose-Anne Kwaks stated a vote had not been taken. It was a straw poll. She questioned whether that was enough for a Planning Board. Diane Hardy stated it was a decision the Board made. Rose-Anne Kwaks stated she thought it had to be a formal vote. Eric Botterman stated it could just be a consensus. Rose-Anne Kwaks questioned that process for something as important as that decision. Val Shelton stated the consensus of the Board was that the excavation was incidental to the construction of this building.
There was discussion that would tie in the vesting rights relative to a period required in order to vest. Rose-Anne Kwaks stated the real concern was operating this as a gravel pit over several years. They would only be selling it when the market allowed, as opposed to getting in there and preparing the site, where gravel may be excavated first, in order to build the building. Rose-Anne Kwaks stated it was an excavation site years ago. She asked if this would be under 155-E as an expansion of a gravel pit. Eric Botterman stated the only reason they are excavating is to put the building in. Rose-Anne Kwaks asked what happens if they do this excavating and then never put the building in. According to the plan, they lose their vested rights, but isn’t that a way of circumventing? Diane Hardy stated the decision was based on the presentation, the facts presented, the information given by the applicant, the Town Attorney’s letter, and consultation with the Department of Revenue Administration, The Board felt comfortable and took a straw pool. They did acknowledge that and the developer moved forward. Eric Botterman stated he was not going to sit here and assume someone is coming in and lying to the Board. Rose-Anne Kwaks stated what makes her tend to go that way is because there is more monetary value in the materials that will be excavated, compared to what they could get when they do the building. Val Shelton asked what the point of that is. She stated they have to excavate in order to construct the building.
Rose-Anne Kwaks asked if Mr. Portyrata’s home and the house they already demolished had been included in the 100,000 square yards. Eric Botterman stated they are not excavating that far. Diane Hardy stated she should ask that question to the applicant.
Rose-Anne Kwaks asked what kind of bonding there would be from the applicant regarding NH DOT. Diane Hardy stated there is no bonding through NH DOT. She is recommending that a performance bond be posted, by the developer, to assure compliance with the plan that has been approved by NH DOT, that they have a geotechnical engineer review and comment on it and that it be an amount that covers the cost of reclaiming the site. They will ask the applicant’s engineer to provide a cost estimate, which will be reviewed by the Town’s Engineer. That will be the legal basis for the dollar amount of the bond. If the Board feels compelled, they can have the bond releases tied to a Planning Board approval. Rose-Anne Kwaks stated NH DOT was not in it right now, but, because Forbes Road is a Town owned road, it is up to the Town to apply for a permit. Diane Hardy stated the Town had already applied for it. She is recommending that this plan will be become part of the NH DOT application and there will be a condition of the approval of this development that the developer comply and implement that plan. She is also recommending that a bond be posted to ensure the road improvements get done according to the plan. This would not only be for the offsite improvements in the public right of way, but there would also be a bond to assure the plan gets implemented with the information from the geotechnical engineer and to make sure the vegetation takes on the slopes, so it is properly stabilized. Rose-Anne Kwaks stated the Town would be the applicant for the permit. NH DOT does not have its usual abilities to ensure performance. It falls on the Town to ensure the performance. Eric Botterman stated that was the bond. Rose-Anne Kwaks asked if the bond was sufficient. Diane Hardy stated it is the same process as for every project. There is a plan that is approved by the Planning Board, it is given to the applicant’s engineer and the Board asks them to put together an engineering cost estimate. That is taken to the Town’s engineer to verify it and make sure it is accurate. It is also reviewed as part of the Town’s legal counsel’s review of the bond document to make sure it is adequate. Rose-Anne Kwaks asked if those improvements would have to be made prior to them starting the excavation there, because of the condition of the road on Route 108. Diane Hardy stated that could be a condition of approval.
Jane Ford asked what the bond covered. Diane Hardy stated she is recommending the bond not be to build the building. It should be to stabilize the slopes to assure it meets the geotechnical plans.
Diane Hardy went over her recommendations. The first item was regarding the applicant entering into a developer’s agreement with the Town. This includes findings of fact, special site plan approval conditions, the Town’s expectations prior to and during construction, requirements prior to the issuance of building permits, certificates of occupancy and scheduling. This is a standard clause that is included in all of the developments approved by the Planning Board. This is a legal document that is recorded with the plan.
Rose-Anne Kwaks asked if there was a bond for Forbes Road, if it is damaged. Eric Botterman stated, as long as they are carrying legal weight, the Town cannot charge them if the roads get damaged.
Diane Hardy stated the second condition is the applicant shall make advance payment to the Town to allow for the Town’s engineering consultant to provide construction observation services and coordination services to ensure compliance with the Town’s regulations and the approved site plan.
The third condition is the applicant’s engineer shall provide a cost estimate for all off-site improvements that will be completed within the State’s and Town’s right-of-way and within the sight distance easement and the on-site cost of reclaiming and re-establishing the stability of slopes as set forth on the plans on and as recommended within the S.W. Cole Engineering geotechnical report. This estimate shall become the basis for a performance bond, which shall be posted by the applicant in an amount satisfactory to the Town’s engineer to assure timely and proper construction.
Condition 4 is impact fees for the project (calculated in accordance with Town Regulations) shall be paid to the Town of Newmarket. Projected flow data for water shall be provided to the Town, by review by the Town’s engineering consultant, which will be used as the basis for the water impact fee. She stated the applicant could request a waiver.
Condition 5 is evidence that all relevant Federal and State permits relating to alteration of terrain and highway access have been secured. Copies of all permits (and any corresponding conditions) shall be provided prior to plan signing. (NH DES Alteration of Terrain and NH DOT Highway Access Permits). They already received the Alteration of Terrain. The Town has applied for the NH DOT permit on the applicant’s behalf. The Town has been working very closely with Division Six on this project.
Condition 6 is the applicant shall finalize the intersection improvement plan, with appropriate engineering details and data as required by the Town’s review engineer, the Newmarket Public Works Department and NH Department of Transportation (DOT). The Town shall forward these plans with a cover letter to the NH DOT indicating that they are to be part of Newmarket’s driveway permit dated July 16, 2014. Implementation of these plans and adherence to any applicable NH DOT conditions shall be the responsibility of the applicant, as part of the Planning Board’s approval of this site review application.
She stated, for Condition 7, copies of all easements and deeds shall be recorded at the Rockingham County Register of Deeds. These documents shall be provided to the Town for review and approval by the Town’s legal counsel, prior to the signing of the plans. There are some sight line easements involved with property that will soon be owned by the applicant. That will have to be recorded. There may also be some right of way changes that may result in a boundary adjustment.
Condition 8 was this site review approval shall be deemed to have lapsed twenty four (24) months after the date of the grant of final approval, unless active and substantial development or building has commenced within said period as provided by RSA 674:39. For purposes of vesting, the site plan approval shall be deemed to have permanent vesting upon substantial completion of building and site improvements as shown on this site plan.
Condition 9 was the applicant shall file the appropriate paperwork with the Newmarket Planning Department to allow the merger of the two lots as requested by the applicant. That just involved a deed description.
Diane Hardy also had recommendations that have come from some follow-up by the Town Engineer and the Public Works Director. She stated the TRC meeting was last Tuesday and everyone was in agreement with the plans submitted, with a few minor modifications. The Public Works Director, Rick Malasky, met with Phil MacDonald, the Town Engineer from Underwood Engineers, and walked the site and they had a few additional technical requirements that needed to be addressed. Phil MacDonald recommended there be a catchbasin be added to the northerly side of the Forbes Road intersection, along the curb line, and that be tied into the existing catchbasin. They attached a plan. The second recommendation was there be a drainage manhole cover installed to replace the existing catchbasin frame and grate. The third is the pavement overlay be provided to the limits of the work, as shown on the plan. She stated she followed up with Rick Malasky and he did meet with Phil MacDonald and agreed with the recommendations. He feels these improvements are necessary and the costs should be incurred by the developer. She stated they should add a tenth condition that, prior to the submission of the package to the NH DOT, that these further recommendations be incorporated into the plans and forwarded to the State with the rest of the material, so the State can issue the highway access permit. This is related to Condition 6, so you could tie it in.
Eric Botterman asked the applicant to go over the improvements at the intersection.
Rob Graham, representing NIP 6 and Shearwater Investments, stated they originally applied back in December 2013. They have been at this quite a while. They have strived diligently to address thoroughly the Board’s concerns. They have acquired real estate. Their design fees are worth more than that material Rose-Anne Kwaks thinks is worth so much money. They are here to develop real estate to make an investment. They just renovated the former Bank of America building and they think that is a good addition to Newmarket. They are here to make an investment in Newmarket and put their best foot forward. He feels a sense of hostility and he does not know where it was coming from, after the effort they have put in. They are here for a fair proceeding. They would like to make a review and answer questions and then get to some action this evening. He stated Diane Hardy’s comments were very thorough and addressed most of the issues. He had a couple of adjustments in terms of times and scheduling and they will be a work in progress.
Joe Persechino, Tighe & Bond, the applicant’s design engineer, stated he has worked on this project for over a year and a half. One last item they had was, they were still working with NH DOT on the intersection improvements that were beneficial to the town. The concern was the visibility on the right turn out of Forbes Road was being impacted by the vegetation located on the Blackadar property. What will happen now is the vegetation will be removed, as the developer has purchased that property. There will be a permanent easement that will benefit the town. They also widened the radius, so the turning movements for trucks to make that turn without going into southbound traffic. These are all existing issues they decided to improve to benefit the town. He was okay with Phil MacDonald and Rick Malasky’s recommendations.
There was a discussion of the bicycle lane on Route 108. There is no impact to the bike lane project by this project.
Rob Graham wanted to address the timing of some of the recommendations. He stated ordinarily these types of improvements are subject to fair sharing under the State statute. He spoke with Diane this afternoon about them. They are willing to do 100% of the drainage improvements, which are improvements to the Town’s drainage infrastructure. They want to do everything at once. They just closed on the Blackadar property. There are two phases to this DOT finalization plan. They have to make a lot line adjustment plan and grant easements. They are going to grant land and easements first. They will clear the trees and brush for the site line issues. They would like to do the expansion of the pavement radius and the drainage work in once construction sequence, when they are doing their other drainage and pavement work. Val Shelton stated that it would not be done prior to moving gravel offsite. Rob Graham stated the drainage and pavement work would not be done. The granting of the land and the site easements would all be bonded. The trucks hauling gravel will be heading southbound, so they would not be entering the other lane to make the turn. Val Shelton stated she wanted this discussion in the minutes, so it is clear, when he does the sequencing in the developer’s agreement, that this is how it will occur and that the Board is okay with it. Rob Graham stated that was correct. Eric Botterman stated he cannot get an Occupancy Permit until he has that done. He stated they have agreed to undertake a significant improvement to that intersection that really is not their responsibility. What they have agreed to is good. A lot of people would not agree to that. He was okay with the timing. Val Shelton stated, if the building does not get built, the Town is holding the bond to complete the work.
Eric Botterman referred to number 8 in the conditions. The Board wanted to take out the word “final”. Val Shelton stated the Planning Board can determine active and substantial development. She recommended the Board determine what constitutes substantial construction of the exterior of the building. They Board has the right to define that. Rob Graham stated there is a ladder that occurs in the active and substantial, substantial, and then vesting. Vesting is where the jurisdiction of the Board takes place. He explained the differences. This site has extensive site work, there is time allotted by the State statute to do it. They are allowed to climb that ladder of start of work and a substantial completion of that work. The vesting aspect does not mean they have the work done or have to occupy then. It means is they are now immune from new legislation of the town. Those are not burdens on the applicant to complete by any period of time. They are a timeline, in which they are allowed a safe harbor from new regulation. There are not requirements for them to do anything. They are a shield to protect them in their due process rights. They would like to start immediately. They have a pretty decent amount of material to move. There are other aspects to this site. This could be a solid year and potentially two years to get to “pad ready”. They have invested enough money, at that point, for the size building, the drainage, traffic, etc.
Diane Hardy stated it is up to the Planning Board determine active and substantial development. Val Shelton read the regulations regarding this in Section 3.00. The Planning Board defines the threshold at the 24 month period.
Diane Hardy stated, before the meeting, she and Eric Botterman came up with a possible scenario. She stated once excavation, site work, slope stabilization, landscaping, and the berm were done, the site would be “pad ready”. She asked if it would be reasonable, at that point, to say active and substantial development has occurred. Rob Graham stated that was going a long way. He stated, if you say you have to have a building standing, it means you have to have a lot of things completed.
Jane Ford stated she has heard him say he wants to dig up dirt and, maybe, over an extended period of time, they will build a building. She stated maybe, because that was their right. She asked him to help her understand what they are really asking the Board. Eric Botterman stated he understood her question. The Board has a site plan in front of them and they are asking the Board to approve it. Any site plan the Board approves, does not require the developer to develop it. Jane Ford stated she has never had a developer come in and say they may not do anything, but they are going to open the road up. Val Shelton stated they are looking at the excavation as incidental to the building. They talked about that a year ago. It is incidental, so it does not require an excavation permit. She asked how does this not become an excavation project, as opposed to getting ready for a building. Rob Graham stated he was not trying to put a limit on his statutory rights. He would love to be building a building in six months. The fact is they have been marketing this site aggressively to a number of people, who are sister users to the other businesses in the park. When you tell them you don’t know when you are going to be approved and that a lot of material has to be taken out, it puts a lot of time into getting your occupancy permit. You have to have time to stage a site. They will rough down to a marketable pad condition. They don’t have a date for them right now.
Joe Persechino stated there was a lot of discussion about vesting and substantial completion and this might help clarify. It is not like he would go out there and be required to complete anything in that 24 month period, besides the fact he was required to start construction and start active and substantial development on the project. So, if you said to define what active and substantial construction is and you were to say it will be when they start on the building, that would be he would be required to start on the building in 24 months, which the law does not require. He may be delayed for 24 months and say the 24 months is here and decide to start excavation. That would be active and substantial development, because they are starting within the 24 month period. He would still have his site plan approval. He would be actively constructing the project. Val Shelton disagreed that was the statute. She stated they could get a legal opinion. She stated it clearly states under the statute that the Planning Board will define what constitutes active and substantial for vesting rights.
Diane Hardy asked if anyone disagreed that clearing and grubbing is active and substantial. Rob Graham stated he agreed. Val Shelton stated it was not substantial. Diane Hardy stated they could all agree that it is active. So, the next step would be excavation. She asked if that was active and substantial. She stated it would involve taking materials out and exporting it from the site. She asked if that was active and substantial. Val Shelton stated she was fine with substantial excavation. She felt that would hold up. Rob Graham stated they were fine with that. Val Shelton stated, if the Town was having an issue with it and this went to court if he loses his vesting rights, there are court cases that determine substantial and it is typically based upon the cost associated with the entire project and how much the applicant has invested into it. Rob Graham agreed with that. Val Shelton stated that would address this issue of whether it is a gravel pit operation. Dale Pike asked whether it would have been appropriate to ask about the schedule when the Board determined this was not an excavation project. Eric Botterman stated they did and it was not in the Board’s purview to dictate the schedule. Dale Pike stated it was in the purview to decide whether it is excavation. So, if they retained all the rights to wait however long they want to remove material before they do any building, he asked how you determine whether it is excavation. That is the challenge. Eric Botterman stated they can only base decisions on the facts in front of them.
Rob Graham stated the material in the ground is worth about $1 a cubic yard. Janice Rosa stated she owns a gravel pit and it is worth more than that. Rob Graham stated she was selling it and they are paying to get rid of it. They are preparing a site.
Rose-Anne Kwaks asked if Mr. Portyrata’s property and the other property is part of the 100,000 cubic yards that would be removed. Rob Graham stated those are not part of the site plan approval. Diane Hardy stated they have even pulled the excavation line back to provide some buffer. They would have to come back to the Board for a new site plan, to go into those lots.
Rose-Anne Kwaks asked if they had a buyer for the excavated material. Rob Graham stated they do not. They do not need to have that. Rose-Anne Kwaks stated, when asked if there was need to do any improvements on the southbound side of the exit from Forbes Road, Mr. Graham stated no and they were going southbound. She asked if he had a site for the material. Eric Botterman stated that was beyond the Board’s purview. Rose-Anne Kwaks stated, when asked if they needed a southbound radius, he stated no, they were going southbound on Route 101. He is contradicting himself. It is not a true representation of how much time he needs to excavate. That is her take on it. Eric Botterman stated, if they get on a public way, they can go where they want. It is not the Board’s business.
Rob Graham stated there is something in the air here he did not understand. There are industry aspects. There is very little economic activity in Newmarket to sell material to. This is not gravel. This is sand. Most places you would drive to coming out of the park where material will go to, you will go the route that is the straightest and fastest. They are not going through downtown Newmarket with gravel trucks. He was not here to deceive the Board with an evil gravel conspiracy.
Val Shelton stated she was proposing that substantial excavation shall constitute active and substantial development or building. Diane Hardy asked her to define substantial excavation. Val Shelton stated it would be relative to the project. Rob Graham stated he was comfortable with the language and he was comfortable with the Board determining what that means.
Eric Botterman asked for a straw poll if everyone was okay with Val Shelton’s interpretation. Rose-Anne Kwaks asked if it included the building. Eric Botterman said no. Rose-Anne Kwaks stated she would be okay with it if all the excavation was completed. Janice Rosa stated she wanted to see a building there. Some things take longer and don’t fall into place. She was okay with it. Ezra Temko, Val Shelton, and Eric Botterman were okay with it. Dale Pike stated substantial was very vague. Val Shelton stated the courts would rule that substantial is relative to the project scope, of the site plan. Dale Pike stated the project is so much bigger than the excavation. That point was such an issue, there should be more clarity. Val Shelton stated, as a layperson, substantial would mean most of the material is out. There might be a definition. Joe Persechino stated he believes the intent of the RSA has been worked through the courts and the intent of the active substantial construction is that it begins within 24 months. So, it is a vested site plan approval. Val Shelton disagreed. Joe Persechino stated it is if a law changes and someone says a site plan was no longer vested. The applicant would come back and the Board would ask what they have done to have active and substantial construction. They look at the site and conditions and operations. Diane Hardy stated it was a judgement call on the part of the Board and not something you can define by a formula or specific definition.
Rose-Anne Kwaks stated the Board could say they have substantial development and they are done. But at the end of five years, if they have not done anything, they cannot build the building, they are no longer vested. Diane Hardy stated they are exempt from changes for five years. They have to complete it within that timeframe, if they want permanent vesting. Eric Botterman stated the project does not have to be complete in five years. It only protects them from zoning changes in that timeframe.
Diane Hardy stated an engineer can look at the plan and tell you how many cubic yards of gravel will be excavated. If you can quantify it by saying we consider substantial excavation to be some percentage of that, it would be okay. The Board needs to define it.
Diane Hardy stated there is not a right answer, this is a policy decision that has to be made by this Board. The more clarity the Board can provide, the easier it will be. Eric Botterman stated he was fine with “clearing and grubbing and excavation has begun”. It is time to put a quantity on this.
Val Shelton stated the project directly across the street at Rockingham Green had substantial excavation with it and roads built, etc. She did not think just grubbing the site is enough. There are a lot of 1980s approvals, where the site was grubbed and now they are vested. Eric Botterman asked, if he grubs the site and nothing else happens, how is the Town hurt. He would argue the Town was not hurt. Rob Graham stated it was supposed to be ongoing. There are bonds for reclamation. Val Shelton stated what constitutes active and substantial development under the statute is substantial excavation. Rob Graham stated they would be comfortable with 25% of the material or any other improvement the Board thinks is reasonable.
Action
Motion: Ezra Temko made a motion that the Board define active and substantial building as a minimum of 25% of excavation
Second: Eric Botterman
Vote: Eric Botterman, Ezra Temko aye
Val Shelton, Jane Ford, Janice Rosa, Dale Pike, Rose-Anne Kwaks nay
Motion fails
Action
Motion: Rose-Anne Kwaks made a motion that the Board grant conditional approval on active and substantial development occurs when all the material has been removed, 100%, and the radius for the road, they have to do the grading under the Alteration of Terrain permit, because, once it is excavated, they are obligated to do that. So, it would be the radius, the completion of the mining of materials and offsite improvements as indicated under number six from Rick Malasky, they also included the top course of the pavement.
Second: Dale Pike
Eric Botterman stated it was way beyond what they should be suggesting. He said she was asking for completion of the site. Rose-Anne Kwaks stated she was asking for completion of getting ready to build the building and the offsite improvements. Eric Botterman stated that was way beyond the intent of the statute. Ezra Temko stated he was worried about impacts on other developers and whether the requirements were too onerous for them to want to come here. He felt it was overly ambitious. They want the developer to feel ambitious, but there is a difference between that and legislating that it has to happen or else. Rose-Anne Kwaks stated it was on Route 108 and you don’t want trucks in and out for the next five years. Eric Botterman stated there are trucks going in and out every day now with the buildings that are there.
Vote: Rose-Anne Kwaks aye
Val Shelton, Janice Rosa, Jane Ford, Eric Botterman, Ezra Temko, Dale Pike nay
Motion fails
Janice Rosa stated the Board has to have some trust. She has been on the TRC and has seen the applicant and his engineers and other professionals working hard to meet the concerns of the Board and the Town Engineer. She understands he has to move the material and it may not be ready in two years to put the building up. Some things take time. They have invested a lot of money in these plans and engineering. There have been other developments in town with vested rights from the 1980s. Those are housing. This is industrial. It is to his benefit to get that building up.
Eric Botterman said the Town is not at risk for anything. Diane Hardy stated, if they are going to start the excavation, they should get it to a point where it is an attractive site, so it can be marketed. She stated attractive would be a site with a good portion of the excavation completed, she would go with 75% completed, it is reasonably graded, so it can be marketed, with clearing and grubbing, of course. She did not think it was reasonable to expect the offsite improvements to be done at this stage. So, bring the site to a point where it can be marketed as an industrial site. Eric Botterman stated that making it attractive to buyers was not part of the Board’s purview.
Rob Graham stated, if you have not worked on a face in three weeks, it has to be stabilized. That is how active it has to be. You don’t want to rework. That is expensive.
Action
Motion: Ezra Temko made a motion for 50% excavation
Second: Eric Botterman
Vote: Eric Botterman aye
All others nay
Eric Botterman opened the public hearing.
None.
Eric Botterman closed the public hearing.
Action
Motion: Val Shelton made a motion to approve the NIP Lot 6, LLC/Shearwater Investment Corporation application for a major site plan review at 2 Forbes Road (NIP 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 the site plan approval, the lots will also be merged to make one lot. She makes this motion with the following conditions, in reference to Planner Diane Hardy’s memo to the Newmarket Planning Board
dated April 10, 2015, Items 1-9,
with the amendment to #1 to read:
1) The Applicant shall enter into a Developer’s Agreement, with the Town of Newmarket, which includes findings of fact, special site plan approval conditions, the Town’s expectations prior to and during excavation and construction, requirements prior to the issuance of building permits, certificates of occupancy, scheduling and the timing of site improvements and construction.
#2 - #5 as is
2) The applicant shall make an advance payment to the Town to allow for the Town’s engineering consultant to provide construction observation and coordination services to assure compliance with the Town’s regulations and the approved site plan throughout construction.
3) The applicant’s engineer shall provide a cost estimate for all off-site improvements that will be completed within the State’s and Town’s right-of-way and within the sight distance easement and the on-site cost of reclaiming and re-establishing the stability of slopes as set forth on the plans and as recommended within the S.W. Cole Engineering geotechnical report. This estimate shall become the basis for a performance bond, which shall be posted by the applicant in an amount satisfactory to the Town’s engineer to assure timely and proper construction.
4) Impact fees for the project (calculated in accordance with Town Regulations) shall be paid to the Town of Newmarket. Projected flow data for water shall be provided to the Town by review by the Town’s engineering consultant, which will be used as the basis for the water impact fee.
5) Evidence that all relevant Federal and State permits relating to alteration of terrain and highway access have been secured. Copies of all permits (and any corresponding conditions) shall be provided prior to plan signing. (NH DES Alteration of Terrain and NH DOT Highway Access Permits)
#6 to read:
6) The applicant shall finalize the intersection improvement plan, including changes proposed in Philip MacDonald’s memo dated 04/30/15, with appropriate engineering details and data, as required by the Town’s review engineer, the Newmarket Public Works Department and NH Department of Transportation (DOT), including the changes recommended in Phil MacDonald’s (Underwood Engineers) memo, dated April 3, 2015. The Town shall forward these plans with a cover letter to the NH DOT indicating that they are to be part of Newmarket’s driveway permit dated July 16, 2014. Implementation of these plans and adherence to any applicable NH DOT conditions shall be the responsibility of the applicant as part of the Planning Board’s approval of this site review application.
#7 as is
7) Copies of all easements and deeds shall be recorded at the Rockingham County Registry of Deeds. These documents shall be provided to the Town for review and approval by the Town’s legal counsel, prior to the signing of the plans.
#8 shall read:
8) This site review approval shall be deemed to have lapsed twenty-four (24) months after the date of approval, unless active and substantial development or building has commenced within said period as provided by RSA 674:39. For purposes of vesting, the site plan approval shall be deemed to have permanent vesting upon substantial completion of building and site improvements as shown on this site plan. Substantial excavation shall constitute active and substantial development or building.
#9 as is
9) The applicant shall file the appropriate paperwork with the Newmarket Planning Department to allow the merger of the two lots as requested by the applicant.
Second: Janice Rosa
Rose-Anne Kwaks asked if they come back in 24 months and the Board says there has not been substantial and the applicant says there has, what determines it. Val Shelton stated they could appeal that decision.
Vote: Rose-Anne Kwaks, Dale Pike nay
Eric Botterman, Val Shelton, Jane Ford, Janice Rosa, Ezra Temko
Motion passes
Hayden Family Rev. Trust, Mark L & Karen S. Hayden, Trustees/Chinburg Builders, Inc., - Compliance hearing subject to RSA 676:4 I (i) regarding a subdivision & special use permit, at 74 Bald Hill Road, Tax Map R7, Lot 24, R1 Zone. This involves the review and approval of a management plan for open space related to the aforementioned development.
Matt Assia, Chinburg Builders Inc., presented the Land Stewardship Plan. This was a condition of subdivision approval. This plan is for the 21 acres of conservation land being created by this subdivision. At the time of the approval, they had presented they were working with Southeast Land Trust of NH to be the managers of the conservation land. They crafted a Stewardship Plan for the land that satisfies the Town’s Zoning Ordinance and provides open space. He stated the plan is the Land Trust’s method of managing the land to preserve it as open space.
Diane Hardy stated she did not think the abutters had seen the approved plan, as none of them were at the approval hearing. Matt Assia went over the plan and showed where the open space land was located.
Diane Hardy gave some background on residential open space developments and the history of the hearings for this development. She went over the things a Land Stewardship plan should protect, such as erosion, maintenance and operation plan to maintain the space, woodland management, landscaping buffers and wildlife protection. The land will be owned by Southeast Land Trust.
Eric Botterman stated there will be restrictions on this property. It will not be posted against pedestrian public access, as long as it is for passive recreation during reasonable hours. The Land Manager reserves the right to post against hunting and camping. The Land Manager reserves the right to post the property against public access during harvesting or other forest or land management activities. The property shall not be subdivided. The lease of any portion of the property for allowed uses shall be permitted. Boundary line adjustments consistent with the conservation purposes of the property are allowed. Construction, placement or introduction of structures onto the property shall be prohibited except for structures and improvements which are used in accomplishment of agriculture, forestry, conservation, habitat management, outdoor education or noncommercial outdoor recreational uses of the property. Mining, quarrying, excavation or removal of rocks, minerals, gravel, sand, topsoil or other similar materials on the property shall be prohibited, except in connection with any improvements pursuant to Section 5. Removal, filling or other disturbances of soil surface or any changes in topography, surface or subsurface water systems, wetlands, stone walls or natural habitat shall not be allowed unless such activities are in connection with the agricultural, forestry, conservation habitat management, outdoor education or noncommercial outdoor recreational uses. There should be no dumping, injection, burning or burial of any manmade material, materials known to be environmentally hazardous or lawn clippings and other yard waste. All open space land is designated and restricted open space in accordance with RSA 674:21(A) and shall be enforceable by the Town of Newmarket.
Drew Kiefaber, Conservation Commission, 50 Elm St, stated the Conservation Commission reviewed this Land Stewardship Plan at their last meeting. They are interested in seeing the property properly stewarded. There was some concern related to the restriction of hunting on the property. There were members on the Conservation Commission were very interested in seeing hunting be permitted. It was also acknowledged, given the location of the homes and the 300’ safety zone, there would be a limited portion of the property for hunting. The other comment was related to forestry. They asked for clarification whether forestry was planned for the foreseeable future or was it a longer term management plan. The letter to the Planning Board was also provided to Matt Assia and Dave Viale, Southeast Land Trust. Mr. Viale responded to all concerns in a letter, which went to all Conservation Commission members and he has had no comments from them regarding it.
David Viale represented Southeast Land Trust. They also steward the Piscassic Greenway. He stated regarding the comment on hunting and camping, any property they take on it just depends on the site as to what uses are appropriate. They looked at proximity to the houses and did a GIS analysis that put a 300’ buffer on the houses and he thought it would be appropriate to put a similar buffer on the existing trailwork. What is left are few pockets from which to hunt. It is not a property that screams out a guaranteed right to hunt on it. They expect they will post against hunting on this property. On the forestry, their goal is to protect wildlife habitat. They are not financially driven and frequently take a loss on the costs of forestry activities. This is not a property they see as one they will actively manage for forestry. There are steep slopes and close residential proximity. The cost may be prohibited, it does not suit the size of the property or the goals of the open space, which is really passive recreation. They may do some in the future. It will probably be for habitat improvement. They have not said yes or no to opening up a view from the top of the hill. They would need to look at that more closely.
Janice Rosa asked what reasonable hours were. David Viale stated dawn to dusk. They will not allow motorized vehicles and may gate it.
Janice Rosa asked what they might lease the property for. David Viale stated forestry, perhaps a community garden, passive recreation. They are extinguishing the development rights.
Janice Rosa stated they had talked about handicap access in the past. David Viale stated the State law says if someone needs motorized assistance to that type of area, they cannot restrict that. It also says you have to use what is appropriate to the trail system. You could go on there with a vehicle that does not cause erosion or tear up the soil.
Ezra Temko asked if there would be any bike racks. David Viale stated it was not their goal in the plan to do that. It was not part of the approved plans. Eric Botterman stated they did not request any.
Eric Botterman opened the public hearing.
Angela Petrini, 64 Bald Hill Road, stated they purchased their property in December and had no knowledge of this. They were disappointed, because they moved there for the quietness and trees. There are two pieces of equipment on that property and she asked if they would be removed. Diane Hardy stated the developer is going to move them.
Dale Pike asked if the Planning Board would have input on opening up the view. David Viale stated the Land Trust would look at making that determination. Diane Hardy stated they had asked them to look at that as part of the plan. Drew Kiefaber stated he was speaking as an individual on this. The top of the hill is covered with deciduous trees, so much of the year you have a decent view already. It is partially obstructed by tree trunks, but there is a view that exists. He feels hesitant to request it be opened up for a view without more knowledge on the soils, how much area would need to be cleared, etc., because it is the top of the hill. If you cut down what is there to open up a view, in order to maintain that, they would need to keep it cut down. There is a potential for negative impact and erosion by wiping out what is growing at the top of the hill. He would be hesitant to do that.
Val Shelton asked, under #1 on the pedestrian access, if they were reserving the right to post against bikes and dogs. David Viale stated, if it was becoming detrimental to the property, they could. He did not think the way it is now a bike would harm anything right now. As far as dogs, they are not posting against them, but if it gets to a point where the property is being abused or disrespected, they will reserve the right to do so.
Rose-Anne Kwaks stated they could post not to allow dogs, because they will have a dog park if they do not. She is experiencing that at her property with the open space land that NH Audubon has. They have many people come in with dogs and they started to have problems and it was turning into a dog park. She was not in favor of camping. If hunting was a safety issue that was fine.
Lauren Adresen, Lot 24-2, 39 Sanborn Drive, Newfields, asked if they were using the existing trails. She was concerned, because their property abuts it and they would see people walking by. David Viale showed where the open space was and indicated where the trail network currently was. There will be a trail connector constructed from the cul de sac.
Lauren Andresen asked if there was set footage where they cannot tear all the trees down up to their property line. Eric Botterman stated they have a right manage the areas, but he did not think they plan on clear cutting the property. They are a conservation organization. Diane Hardy stated the 75’ is a building setback. Eric Botterman stated with the house lots, the homeowners could clear cut their own backyards if they wanted to. The open space is intended to be woodland. But there is no guarantee they won’t do that, but it is highly unlikely. David Viale stated they want to be good neighbors or people would not support they work they do. It is not something he imagined would happen.
Al Mitchell stated he is a substantial abutter to this open land. They are thrilled this is happening.
Eric Botterman closed the public hearing.
Action
Motion: Val Shelton made a motion to approve the management plan for the open space related to the Hayden Family Revocable Trust/Mark L. & Karen S. Hayden/Chinburg Builders, Inc. relative to the subdivision special use permit at 74 Bald Hill Road, Tax Map R7, Lot 24, R1 as presented by Chinburg Development LLC Bald Hill Road Newmarket, NH dated 04/08/15
Second: Jane Ford
Vote: All in favor
Agenda Item #5
New/Old Business
Appointment to CIP Committee
The Board appointed Rose-Anne Kwaks to the CIP Committee, with Jane Ford as an Alternate.
The Board appointed Ezra Temko was appointed to the Conservation Commission.
The Board appointed Val Shelton to the Economic Development Committee.
Planner's Report
Diane Hardy reminded everyone of the Newmarket Visioning Exercise was Saturday April 18, 9 a.m. to noon.
She mentioned the Planning Zoning conference on May 2.
Ezra Temko asked if more gender inclusive language could be used by the Board.
Agenda Item #6 - Adjourn
Action
Motion: Janice Rosa made a motion to adjourn at 9:56 p.m.
Second: Jane Ford
Vote: All in favor