Minutes
NEWMARKET PLANNING BOARD MEETING
OCTOBER 10, 2017
MINUTES
Present: Eric Botterman (Chairman), Val Shelton (Vice Chairman), Janice Rosa, Rose-Anne Kwaks, Jane Ford, Michal Zahorik (Alternate), Amy Burns (Town Council ex officio)
Absent: Peter Nelson, Glen Wilkinson (Alternate)
Called to order: 7:05 p.m.
Adjourned: 8:02 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Public Comments
None.
Eric Botterman appointed Michal Zahorik to fill in for Peter Nelson.
Agenda Item #3 – Review & approval of minutes: 09/12/17
Action
Motion: Rose-Anne Kwaks made a motion to approve the September 12, 2017 minutes
Second: Val Shelton
Vote: Janice Rosa abstained due to absence
All others in favor
Agenda Item #4 – Regular Business
Kyle Pimental, Strafford Regional Planning – Update regarding the Setting SAIL grant, regarding the Coastal Risk and Hazards Commission’s final report.
Kyle Pimental, Principal Regional Planner at Strafford Regional Planning Commission, gave a presentation on the Coastal Risk and Hazards Commission’s final report.
He gave a history of how the commission was started. State senators put forth legislation to establish this commission to gain a better idea of how NH would potentially impacted by certain types of coastal flooding risks. There were three pieces to this commission. The first was a clear and focused mission statement. The mission was to come up with legislative actions to address coastal hazards for municipalities and State assets. The other piece to the mission statement was any sort of action put forth in this report needed to be based on science. They were not tasked with looking at drought or extreme heat or anything like that. It was a broad based membership. There were 17 coastal communities that were represented. Bill Arcieri was the representative for Newmarket. He attended all of the commission meetings. There were also key State agencies in attendance, such as NH DOT, Department of Historical and Cultural Resources, and other outside stakeholders from real estate and the insurance sector. There were about 37 people in attendance. They started holding meetings in 2013 and they were sunset in December 2016. RSA 483E and Senate Bill 163 have more information.
He stated the first thing the Commission wanted to do was to come up with the science that would be the baseline for the recommendations. In 2014, the Science and Technical Advisory Panel was established and was comprised of a number of different local climate scientists from UNH. They also had a climate skeptic on the committee, in order to balance things out and ask questions. They looked at sea level rise, extreme precipitation and storm surge.
For sea level rise, they projected between 2050 and 2100. He showed a chart. There is a steady line from 1900, then, at 2000, there is a drastic increase. For this modeling, they started their baseline at 1992. Scientists think that, because of changes in emissions, the curve would change dramatically, so they chose 1992, because the curve decided to go up at that point. Their projections are .6 to 2.0 feet by 2050 and 1.6 to 6.6 by 2100. This science will be looked at every five years. These numbers might change. Those are the numbers they have been recommending communities look at, in terms of long term planning infrastructure projects. If there is a bridge or a building that will last 50 – 75 years and is built in a vulnerable area, they should use these numbers to think about how to handle certain sea level rise issues.
Jane Ford asked what the skeptic’s opinion was of starting in 1992. Mr. Pimental stated there was push-back. In the end, it was unanimously voted on. No one disagreed, but there was back and forth getting to that point. The biggest push-back was that the numbers you see and the curves on the chart are all based on model. If you take the straight line and you stick with historic data and stay that trend forward, you would still see the straight line. Climate scientists think those variables have changed and you can’t keep that straight line anymore. They feel you have to incorporate changes seen in the last 50 years.
The next piece was storm surge. This was more difficult in terms of what the panel has in their report. It is unclear whether storm surge itself will be more intense or at a higher frequency. However, with sea level rise on top of that, it is expected that flood durations may increase over time. The 100 year floodplain might be larger in 50 years. The storm surge is a lot harder to model.
Extreme precipitation is very similar to storm surge, as they are not sure how this will play out for our region. One of the things decided upon is that we could see a high of 20% increase by the end of this century as opposed to the 20th century. They weren’t confident with extreme precipitation numbers, but, in terms of designing, they were comfortable with anything that will be designed from 2050 to 2100 to think about a 15% increase in precipitation over time. This is not in the final report, it is a separate appendix. This is all online.
The report is broken into four categories, economy, landscape, natural resources and heritage. The commission did not do any vulnerability assessments. They didn’t look at all of these individually. There were a number of projects going on at the same time, one of which was called the Sea Rise Project and that other one was Tides to Storm project. Those were done at the municipal level to look at vulnerability.
Instead of talking about the big issues the report talks about in terms of the region, he focused on the sea rise results for Newmarket.
The first one, for the economy, they looked at the number of parcels that were impacted by different sea level rise scenarios. If you look at the first one, 1.7 feet of sea level rise, with a storm surge, about 130 parcels and roughly $40.1 million dollars. That is strictly for planning purposes. The way the GIS calculated that was, if you had a 500 acre parcel and it had river frontage of 200 feet, it would calculate that entire parcel. There was no way to know how much value for just the river frontage for that parcel. If that parcel was worth 5 million dollars, but the sea level rise was for 100’ of it, it was calculating on that 5 million. There was no other way to get that information and it is grossly overstated. For the worst case scenario, the 6.3 feet, about 150 parcels were included at about 44 million dollars.
He thought what was more beneficial for the community was the residential structures information. They looked at aerial photography and put points down on any houses they could see. Two structures in the 1.7 feet were $678,000 and the worst was only six structures at 1.7 million dollars. There was a really big difference when you look at the structures compared to the parcels.
They did not look at if those houses did any sort of flood elevation or had flood insurance or if they moved anything out of their basements. All they saw was those structures may be impacted by those scenarios. Those numbers for loss damage might be much, much less. They should be used in a very general planning purpose method. They wanted to give the communities a general idea of their risk.
In terms of the built landscape, like culverts, he focused on the worst case scenario, which was the 6.3 storm surge. The town shows 12 culverts that UNH Stormwater Center did a hydrologic study on. One of those was impacted by sea level rise scenario and that was the one at Lubberland Creek over Bay Road. One water access point, one dam, 420 feet of municipal sewer, no water pipes, areas are Water and Creighton Streets, the Lamprey River at Bay Road and one pump station. This was done with available GIS data. Not to say there might not be other critical facilities.
In terms of transportation assets impacted, there were no State roads, no non-maintained roads, no Class VI roads, about a ¼ mile of local roads and the most impacted would be private roads. There are a lot of them off of New Road.
Overall it is less than ¾ of a mile total impacted. There was one DOT project impacted, the Bay Road culvert replacement project that happened after the 2006 flood. In terms of other transportation assets, there were not a lot of impacts for the town.
This is only looking at sea level rise, not necessarily large precipitation events.
In terms of natural resources, they broke it out to land and water. Some of the land resources include about 150 acres of conservation land for 14 different properties, 266 acres of land that was identified in the wildlife action plan and 245 acres identified in the land conservation plan. The wildlife action plan and land conservation plan overlap a lot of the time. They are looking at lands that are sensitive for either wildlife or other natural habitats. They call out Crommet Creek, lower Lubberland Creek and Squamscot River. Those are areas that may be impacted.
Focusing on water resources, there are 21 acres in a wellhead protection area, which is the well around the Moody Point area. There is about an acre and a half of tidal wetlands, about 15 acres of freshwater wetlands, about 32 acres of stratified drift aquifers and within those areas there is almost 100 acres of floodplain. Most of the floodplain is around Lamprey River, Great Bay and Lubberland Creek.
They looked at heritage. The State does not have good historic and cultural GIS data at all. They had Schanda Park as impacted, but they did not have any cultural or historic data that would be impacted by sea level rise. Diane Hardy stated the whole downtown and waterfront is part of a historic district. She stated he might want to highlight that for future presentations. Mr. Pimental stated this does take into account that a lot of archeological sites are underground. They don’t have GIS information on that. He will add in the downtown.
At the end of the report it goes into goals, recommendations and actions. They are based on these four themes, science, assessment, implementation, and legislation. That actually spells out SAIL and is based on NH’s state seal. The title, “Setting Sail” is based on this.
There are a number of recommendations and actions in the report. Some are geared toward legislative action, some are for State agencies, and some are for municipalities. Each one is labeled.
He gave some examples of what a municipality might be looking at. One is secured funding, to conduct more vulnerability assessments at appropriate scales, such as looking at the pump station on Creighton Street. They do not know what the impacts would be, but they feel it might be impacted. The Town will need more site specific data to make long term decisions.
They suggest making existing structures and facilities more resilient, acquiring properties in high risk areas, incorporating coastal hazards, vulnerability and policies, plans and investments for things like long term planning, capital improvements, master plan and policies incorporating some of these vulnerabilities. A good opportunity would be to incorporate some of this information into the Town’s hazard mitigation plan, which needs to be updated and will expire next March or April. They are seeing other communities incorporating best available science into economic development plans and improving information for property owners and prospective buyers.
Kyle Pimental updated the Board on the stormwater regulations. He has met with the subcommittee and they are about halfway through the SWA model ordinance. He suspects they may be done in two more meetings. They are hoping that right after the holidays they will bring the revisions back for comment and be ready in February for a public hearing to adopt the changes.
PNF Realty – Lot Merger for properties at 3 Bayview Drive (a.k.a. 9 Lookout Place), Tax Map R1, Lot 9, and 3 Lookout Place, Tax Map R1, Lot 10, both in the R1 Zone.
Diane Hardy stated these are two substandard sized lots that were combined in 2008, primarily because the lots were such in size that they could not individually support a septic system. The owner had to combine the lots to get approval to install the septic system. It is something that was picked up in reviewing the tax maps during an update and we found that this merger had taken place, but did not follow the proper protocol in coming before the Planning Board to authorize the Chairman to sign the merger and then having the document recorded. This is a housekeeping measure. She recommends the Board authorize the Chairman to sign the document.
Val Shelton stated she sold all of these properties. She stated the original subdivision approval in 1963 required that, if a residential building was going to be constructed on any of these properties, two lots would have to be combined. Prior to selling the properties, they got the State approved septic systems designed for each combined lot. There will be a total of five of these.
Action
Motion: Val Shelton made a motion to approve the lot merger for properties at 3 Bayview Drive, Tax Map R1, Lot 9, and 3 Lookout Place, Tax Map R1, Lot 10, R1 Zone
Second: Rose-Anne Kwaks
Vote: All in favor
Kathy & Eric Harter – Request for waiver of impact fees for an accessory apartment, located at 5 Sanborn Avenue, Tax Map U2, Lot 351, R2 Zone.
Diane Hardy stated this application came before the Zoning Board of Adjustment and was approved unanimously for a Special Exception for an accessory apartment. The applicant is requesting a waiver from impact fees on the basis that the size of the unit is such that it would not lend itself to children. It is a one bedroom unit. The applicant also points out they are paying the hookup fees for water and sewer. They are requesting a waiver from school, recreation, water and sewer impact fees. Under the current schedule, that is roughly $4,765.00 for just one unit. Kathy Harter stated the separate water and sewer hookup fees are $2,000.
Rose-Anne Kwaks stated, when they saw the new RSA in June, there was a 750 sq. ft. requirement and the Board amended the ordinance and changed it to 1,000 sq. ft. It also stated the purpose of an accessory apartment and the Board eliminated a sentence from that, which said, “To balance this, the number of bedrooms in accessory apartments is severely limited to prevent excessive growth and the number of school-aged children.”
The Board, at the time, had extensive discussions regarding that sentence stating, with the new RSA, they cannot tell anyone how many bedrooms to put in. That would be discrimination. Val Shelton asked what the status was to the update to the ordinance. Diane Hardy stated everything on this had passed Town Council.
Val Shelton stated the Board needs to make a decision on this under the current ordinance and there is specific language in there about the ability to waive impact fees. Rose-Anne Kwaks stated there is no specific language. Diane Hardy stated they had discussed changing the requirements for impact fees on accessory units. The Board decided to review each request on a case-by-case basis. One thing that was clear about the RSA was that any zoning restrictions that apply to single family homes should apply to accessory apartments, which includes lot size and density. It would follow that impact fees should be applied, but that is a policy decision for the Board. In the past, the Board has waived them for accessory apartments. This is the first one under the new regulations.
Rose-Anne Kwaks stated, the Board cannot say they do not have to pay the school portion, because an applicant said they will not have school-age children in there. There is no way to enforce this. She did not think this Board had the ability to adjudicate that, as well. The Board, in approving this, is saying they are not going to have children there and the Board does not have the legal ability to do that, especially under the new RSA, regardless of the size of the unit. If the Board is not able to say they cannot have any children in the unit, then they cannot approve a waiver of impact fees. The Board would have to state the waiver is being approved, because they will not have children there, something they are not allowed to say. Val Shelton stated the other waivers were based on the potential of the impact on the school. Eric Botterman stated the applicant never said there will never be children there. The letter submitted says the apartment is 650 sq. ft. and one bedroom, which makes it less likely there will be children. He understands Rose-Anne Kwaks’ point.
Jane Ford asked Kathy Harter if her husband worked for a particular company and she stated yes. Jane Ford stated she needed to recuse herself.
Amy Burns stated, if they are reviewing this on a case-by-case basis and, in this case, it is a 650 sq. ft. unit, and it is a one-bedroom, there are not going to be a lot of people in there. Kathy Harter stated it is a small bedroom, too. Amy Burns stated she thought this was one of the “cases” in case-by-case.
Val Shelton stated the evidence the Board should be looking for is, of the apartments in town that are 650 sq. ft., how many have school-age children in them. No one had that answer.
Diane Hardy stated school enrollment is declining.
Rose-Anne Kwaks stated they were looking for a waiver of water and sewer. They are still paying for the hookup. Kathy Harter stated she had a long conversation about the hookup fees and impact fees for these with the Water & Sewer Superintendent. He was happy to waive the impact fees, if it was up to him, but he could not waive the hookup fees. They had a good conversation.
Val Shelton did not think a 650 sq. ft. apartment near downtown would have an impact on the schools. You would tend to have a single professional or older person in there or, perhaps, a couple. She could go either way on the recreational fee. They would have use of that facility. She would certainly waive the water and sewer impact fees.
Rose-Anne Kwaks stated she remembers the discussion of the way the RSA is written and that is they would not be able to waive any impact fees. Just because it is 650 sq. ft., it does not prohibit anyone from having children in there. They cannot get a promise from the applicant and they cannot ask her not to have children in the unit. They have a 30 million dollar school coming online and they have a 14 million dollar bill for water and sewer users. Under the circumstances and the legality of the way the RSA is written, they should not grant any waivers to anyone. They just finished the CIP. There are a lot of bills to pay. They are basing this decision for the waiver on not having children in the unit. They can’t do that legally. Eric Botterman stated this is based on a preponderance of the evidence. If someone comes in and wants to build a subdivision and they do a traffic study, the Board cannot say they can build it, as long as traffic never exceeds what they had in the study. It is based on the evidence at the time. The evidence here is that this is a 650 sq. ft. unit and they generally don’t have children in them. It is not based on not ever having children in the unit. There could be, at some point. The decision is based on what each Board member thinks is the likelihood there will be children there that would trigger that. There are no guarantees.
Val Shelton stated the impact fees are out of date and she questioned if they were even legal. She asked when they were last updated. Diane Hardy stated 2001.
Eric Botterman stated they cannot base any decisions on guarantees or promises. Rose-Anne Kwaks stated that was the only way the Board can render a decision. They cannot ask them not to have children in there and, if they can’t get a promise legally on that, the Board cannot legally give them a waiver. They had to take that line out of the old zoning ordinance stating they had to limit it to the one bedroom for the purpose of not having extra children in the school. It was illegal. Val Shelton stated the ordinance allows the Board to waive impact fees. She was more concerned if there was something in the RSA conflicting with the ordinance. Rose-Anne Kwaks stated they are waiving impact fees on the fact she will not have children there and they cannot legally ask her to not to have children there. Therefore, there is no promise to the Board. She did not see how the Board can waive it. You can put children in a 650 sq. ft. apartment, people have done it before. She did not see how the Board could tell her she can’t have children in there. Val Shelton stated they never required anyone to put a deed restriction on the unit stating they could not have children there. It was more of a matter of making a common sense decision amongst Board members of whether or not the Board felt that particular accessory unit would create an impact on the school, recreation, water and sewer. Not whether or not there is any guarantee. Rose-Anne Kwaks remembered several applicants’ testimony asking for waivers. They made public statements they would not have any children in the units.
Janice Rosa stated she felt comfortable charging the recreation fee and school fee and waiving the other fees.
Amy Burns stated she was okay with waiving the fees. She asked about the recreation fee. Diane Hardy stated that fee was $353. The fee for the school was the highest, which was $3963. Amy Burns asked what the applicant’s reason for applying for a waiver of the recreation fee was. Kathy Harter stated she just asked for the waiver from the fees.
Michal Zahorik stated he was in favor of waiving all of the fees, except the recreation fee.
Rose-Anne Kwaks stated the RSA states that the Board must allow accessory apartments to any single family unit in town. Now there will be a preponderance of accessory units popping up everywhere. If the Board starts waiving fees, especially with the school and water bills coming in, it is not good planning.
Action
Motion: Val Shelton made a motion for a waiver of impact fees for the school and the water and sewer for an accessory apartment located at 5 Sanborn Avenue, Tax Map U2, Lot 351, R2 Zone
Second: Janice Rosa
Vote: Rose-Anne Kwaks, Janice Rosa opposed
Val Shelton, Eric Botterman, Michal Zahorik, Amy Burns in favor
Agenda Item #5 – Old & New Business
Planner’s Report
Diane Hardy stated, at the last meeting, a question was asked about the appointment to the Energy and Environment Committee. She had sent out a copy of the resolution establishing the committee to the Board. She asked if anyone would like to serve on the committee. Rose-Anne Kwaks volunteered.
Diane Hardy stated an agenda item was coming in November for property at 81 Exeter Road, owned by Eric DeWitt, who was in attendance. She introduced Mr. DeWitt to the Board. Mr. DeWitt stated he has wanted to do something with the property for a while. He is submitting an application for Design Review in November. He would be removing the current structures and replacing them with a single structure, which would be a green development on a difficult property. It would be mixed use.
CIP Committee
CIP is done and they will be meeting with the Town Council to justify their recommendations.
Town Council
Amy Burns stated Diane Hardy gave a presentation for them at their last meeting on the CIP. They have a budget review on October 28.
Agenda Item #6 – Adjourn
Action
Motion: Janice Rosa made a motion to adjourn at 8:02 p.m.
Second: Amy Burns
Vote: All in favor