Minutes

NEWMARKET PLANNING BOARD MEETING

FEBRUARY 13, 2018

MINUTES

Called to order:             7:04 p.m.

Adjourned:                     9:46 p.m.

Agenda Item #1 - Pledge of Allegiance

Agenda Item #2 - Public Comments

None.

Val Shelton notified the audience that some applications will be continued to the March 20 meeting.  Those applications include, Brandt Development Co. of NH LLC, Ballroom Too, LLC/Next Level Church, Jonathan & Caitlin Smith, and Alex Capron & Kathleen West.

Agenda Item #3 - Review & Approval of Minutes:    01/23/18

Action

Agenda Item #4 - Regular Business

William J. Doucet & Daniel Lewis – Consideration for appointment to Alternate Planning Board member

William Doucet thanked the Board.  He has presented before planning boards over the last ten to fifteen years.  Over the last ten years, he has not been before this board very often, probably for at least five years.  It was important for him to have that period of time, when he was not before the Board on a regular basis.  His work is at a level now where there is not a conflict.  He now has an opportunity to learn and share some of his experiences.  If his firm did represent a project, he would recuse himself. 

Action

Daniel Lewis thanked the Board.  He stated what made him qualified for this position is the respect for the power Newmarket voters have with the Planning process.  It wasn’t until his experience with UNH Planning and Exeter and Portsmouth Public Works that he saw the role voters and residents play in the planning process.  With this and his experiences, he would appreciate the opportunity to be part of the Newmarket Planning Board. 

Val Shelton asked how long he has been a resident.  Mr. Lewis answered two years in May.

Jonathan Smith & Caitlin Smith – Continuation of a request for a Waiver of Impact Fees for an accessory apartment at 14 Woods Drive, Tax Map U1, Lot 1-50, R2 Zone.

Alex Capron & Kathleen West – Continuation of a request for a waiver of School Impact Fees for an accessory apartment at 7 Moody Point Drive, Tax Map R2, Lot 39, R1 Zone. 

Val Shelton asked for a motion to continue these items to March 20, pending zoning amendments.

Action

Nip-Lot 6, LLC, & Maplewood and Vaughn Holding Co., LLC – Continuation of a public hearing for an application for Lot Line Adjustment, at 2 Forbes, 175 & 177 Exeter Road, Tax Map R3, Lots 6, 7, & 9-6, B2 Zone.  The proposal is to adjust the lot lines, in order to modify two building lots.  The lots are larger and have more frontage than required and will be conforming industrial lots.

Rob Graham represented the applicant.  He stated they were satisfied with the Town Planner’s review. 

Diane Hardy stated there were a couple of items that needed to be added to the plans.  The applicant has added setbacks to the plans and requested two waivers.  She recommended both be approved.  The first one concerns not having soil data on the plans.  The Board is well aware what the soil types are there.  The second is from the scale requirements.  They would like the plan to be approved at a 1”= 50’ scale, where 1”= 100’ is required.  She also recommends approval of the boundary adjustment subject to the applicant providing a draft of the grading easement, to be executed in favor of Tax Map R3 Lot 7, to the Planning Department prior to plan signing. This is a condition of approval stating they would like to see the legal language concerning that easement.  The last condition is tied to the site plan.  This project has come in to the Board on three separate occasions.  In the first approval, there was an expectation that the slopes that had been excavated during construction would be stabilized by October 2017. There is a performance bond for it for $166,000 to assure that happens.  There have been changes to the plans and she would like the Town to be assured that the lots would not be conveyed until such time as the stabilization work on the excavated bank is completed, also so the work on Lot 7 is in sync with the work on the other lot, Lot 6 until Phase 1 grading and stabilization of the plan is completed.  Rob Graham stated they have no objection. 

Val Shelton stated the motion should be conditioned on the subsequent approval of the site plan application, as condition 4 is tied to that. 

Action

Val Shelton opened the public hearing.

No comments.

Val Shelton closed the public hearing.

Vote:    All in favor

Maplewood and Vaughn Holding Co., LLC – Continuation of a Public hearing for an application for Site Plan Review at 177 Exeter Road, Tax Map R3, Lot 7, B2 Zone.  The proposal is for a 24,000 sq. ft. stand-alone industrial building, with municipal water and sewer.  The application previously approved will not be constructed. 

Rob Graham represented the applicant.  He was here for a 24,000 sq. ft. freestanding building.  They originally had a 24,000 sq. ft. building attached to an existing industrial building on the adjacent site.  The plans have been redesigned to do the same 24,000 sq. ft. building as freestanding.  He indicated parking and loading areas on the plan.  The access is through Forbes Road.  They were asked to go through a NH DOT review at the intersection of Forbes Road and Route 108.  That was part of the previous review for the initial building.  DOT recommended some changes and they did some plans for planning purposes on Route 108.  They also made some improvements to the intersection.  They received an amendment letter from DOT stating they are accepting the work they did previously as their traffic mitigation for this new project.

Jane Ford asked if they thought the difference in development needs to be looked at regarding traffic.  Rob Graham stated what they submitted to DOT for trip generations is exactly the same.  It is for a 24,000 sq. ft. building in one location that is moving to another location. 

He stated Diane Hardy had asked DOT to look at the design of the slope and they submitted a geotechnical report for that.  DOT has reviewed and approved it.

Jane Ford asked if they anticipated the weight of truck vehicles coming in to be the same.  Rob Graham said it would be the same.

Val Shelton asked if any material has been excavated from Lot R3 6.  Rob Graham stated they have not gone outside of the scope of the original approval for the original building.   No material has been excavated on Tax Map R3, Lot 6.  Val Shelton explained to the public that Lot 6 is the corner lot.  This proposal is for the next lot in, Lot 7.  There will be excavation on Lot 7. 

She asked if any stabilization has occurred under the first approval.  No, Rob Graham stated they are only 50% through the excavation on that first approval.   They have not cut into the slope to the desired elevation adjacent to the Route 108 right of way.  They expect to get there this summer.  Right now they exceed the slope values for that slope.  They have not installed the erosion control matting, but they are well back, about 60’ from the edge of the right of way.  As they dig into that, they will dig into the entire slope as a “cut away”, then complete the slope and finish the entire thing in construction sequence.  Val Shelton clarified that the excavation and stabilization that was supposed to be done last October is 50% done.  Rob Graham stated that was correct.  Val Shelton stated they still hold the bond.  

Peter Nelson asked if there was any way, the landscaping plan along Route 108 could be fast forwarded to an earlier phase rather than at the end of the project.  Rob Graham stated that they have had some of those conversation themselves.  Right now, they are balancing the ability to get water to the site.  He showed on the plan the area off Route 108 and where their boundary was located.  He showed the shoulder where they planned to do plantings and the slope.  He showed where they are working now and where it needs to be cut and shaped down.  There is a guard rail to be installed and they have a lot to do in that area.  They will likely take that area down to a particular level, then get in to do their safety work, which will be the first phase.  They will set in their slope.  There are portions they will probably want to plant early and some they will want to wait on until they are into building construction for irrigation.  They have to get water up there to allow the plant materials to survive.  They are balancing that right now.  They want to make sure what they plant survives.  Peter Nelson stated the plantings are not based on an irrigation plan permanently.  Rob Graham stated they were not, but need to be planted during the planting season and have water to them.  Diane Hardy stated there will be a guarantee on the plants, if they don’t make it, they will have to be replaced. 

Rose-Anne Kwaks had questions about the utility plan.  Diane Hardy stated there is a condition being recommended that addresses the sewer issues raised by Underwood Engineers.  They have identified what details need to be addressed.  Rob Graham stated they would like that condition to include the wording “prior to a building permit”.  They are also contemplating using a septic system.  They have reserved that ability.  Val Shelton stated that if this is within 100’ of the public sewer, then the regulations require them to tie in.  Rob Graham stated they will have to do some exploration on where the sewer is. He stated Diane Hardy and he had this conversation with the Water and Sewer Superintendent in the last application.  As they start to investigate this, their intent is to use the existing sewer connections of the houses located directly on Route 108.  This will keep them from having to dig up Route 108.  They don’t have locations on the pipes, no one has ever surveyed those.  When they get across the street, they don’t know where or how deep the sewer pipe is.  The entire park is currently on septic systems.  Val Shelton stated the existing buildings are more than 100’ from the sewer pipes.  Rob Graham stated they do not know what their needs will be on the site and what the projected flow will be.  In his opinion, designing a system without knowing the anticipated flow is a waste of money. They would like to be able to do that as part of the building permit application. 

Val Shelton asked if they have any written waivers from sections of the site plan regulations regarding not designing the sewer.  Rob Graham stated they are not looking for a waiver from the requirement.  They are looking for some flexibility on the timeframe of when they would be required to do it. 

Val Shelton opened the public hearing.

No comments.

Val Shelton closed the public hearing.

Peter Nelson asked about the condition regarding no mechanical equipment to be visible to the public.  The last time they had 3D images of the view from the road.  He asked if there would be a new one of those.  Rob Graham stated they did submit elevations for the building.  They stated they would screen the roof section.  If the Building Official felt it did not meet with the approval, they would have to come back before the Board. They understand that is a requirement.  He stated the language regarding “we can’t see it” might be strong.  He did not know if they could build a ten foot wall on that type of a roof.  This building is below Route 108.  Peter Nelson stated they had spent significant time last time around looking at the profile of the building and how it would look from the road.  The public was here and commented and expressed concerns about the view from the road.  He felt it needs to be part of the conversation.  Rob Graham stated that conversation took place for the next building up.  You cannot see this building from the road.  Peter Nelson stated you could see down.  Rob Graham stated maybe.  That is a long view.  Val Shelton asked what the elevation change was from base to the top of slope.  Rob Graham showed on the plan the finished floor elevation of the building, the roof and Route 108. 

Rose-Anne Kwaks stated the screening was for the corner building and Rob Graham had mentioned at the time of that discussion that building on Lot 7 was below that.  If you look at the plantings he had taken from the Board’s recommendations, you will not be able to see through them.  He would have to build screening twenty feet high to block the view of the utilities. 

Val Shelton asked if they could go over their phasing plan in more detail.  Joe Coronati, the engineer for the project, stated there are two phases.  The first phase is to excavate the material.  They have to lower the site to get to the finished grade.  He showed it on the plan.  Within that Phase 1, is an interim phase they talked about earlier, where the stabilization of the slope happens.  At that point, the site is ready for Phase 2, which is for the building permit.  A lot of work has to happen prior to them filing for a building permit.  They need to find a home for all of the material.  They do not want to stockpile it.  So, it is taken out on an as-needed basis.  It could take a year or shorter if there is a need or it could take longer.  Diane Hardy stated they are recommending a year. 

Val Shelton stated 50% of the excavation work was completed under the prior approval.  Mr. Coronati stated that was correct.  This building will be higher than the old building.  They raised it up by moving it over. 

Diane Hardy went over her recommendations.  She stated she spoke with DOT and there will be a permit forth coming.  (There is static on the audio here and a small portion is not audible)

Diane Hardy stated she recommends conditional approval and read the following conditions: 

The first condition would be 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. 

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.  

Impact and water and sewer connections fees for the project (calculated in accordance with Town Regulations) shall be paid to the Town of Newmarket prior to the issuance of any certificates of occupancy. Projected flow data for water and sewer systems shall be updated once a tenant is identified for review by the Town’s engineering consultant, prior to the issuance of any building permits, which will be used as the basis for the water and wastewater impact fees. 

Evidence that all relevant and updated 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 to the Town prior to plan signing. (NH DES Alteration of Terrain and NH DOT Highway Access Permits). 

The Applicant shall provide an Easement Plan. Copies of all easement plans, agreements, 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.  

The following note shall be placed on the Site Plan (C-3). No mechanical equipment on or in the building including electrical, plumbing, heating ventilation, and air conditioning equipment shall be exposed to view from the public right-of-way and shall be properly shielded and screened from Route 108.

Diane Hardy stated they went through three iterations of comments from their engineering consultations.  With all due respect to the applicant and his engineer, the Board did not feel they were responsive to what Underwood was asking.   They refused to respond to their comments.  She had a discussion with the Town Engineer and the Superintendent of Water and Sewer and both are very adamant in that this information needs to be put together and presented as part of the Applicant’s due diligence.  It is part of the Planning process, not something that should be put off for another two or three years when the building permit is applied for.  She asked Underwood to give her a very specific bullet list of exactly what they need to evaluate to be able to approve the sewer design and be able to recommend conditional approval of this site plan this evening.  The engineer, Ben Dryer, provided that information.  They were very adamant they need this information before any plans are signed and recorded.  She has an email from the Wastewater Superintendent, who is in charge of administering the Town’s sewer rules and he agrees wholeheartedly with Underwood’s recommendations. 

The applicant shall comply with the following review comments of Underwood               Engineers:  

  The applicant’s engineer shall provide a preliminary sewer design, as a revision to the Utility Plan (as set forth in items 22 – 28 of the review letter from Underwood Engineers, dated January 29, 2018 and February 6, 2018) to be reviewed and approved by Underwood Engineers, Inc. and the Town’s Water and Sewer Superintendent, prior to the plan signing, and recording of the Site Plan. Such design, at a minimum, shall provide the following information:

Basis of design flow per Env.-Wq 704.03

Identify basis for design of the pumping system (pump flow rate and TDH)

Identify force main size and material

Provide details and sections of pumping system with influent pipe invert elevation, pump on/off elevations, alarm elevations, etc.

Confirm elevations and location of existing sewer system at the proposed tie-in manhole

Confirm condition of existing sewer service if proposed to be used as a sleeve and show the location, size and material on the plans

Identify method for connecting proposed pipes to the existing sewer system (e.g. field core manhole, tee-wye connection, insert-a-tee, etc.) and any special coordination requirements (e.g. bypass pumping)

Identify NHDOT permit requirements (graphically and notes) 

The applicant’s engineer shall provide stormwater management details as set forth in Item 31 of the Underwood Engineers review letter, dated February 6, 2018, subject to the further review and approval of Underwood Engineers and the Planning Department. 

The applicant’s engineer shall provide data input to the PTAPP Database prior to plan signing, as set forth as item 60 in the review letter of Underwood Engineers, dated February 6, 2018, subject to review and approval of Underwood Engineers and the Planning Department.

The Applicant shall provide additional funds to the Town’s engineering escrow to cover the additional costs of engineering review associated with the review of the preliminary sewer design, stormwater details, and PTAPP Database entry.  

The applicant’s engineer shall provide a cost estimate and performance guarantee for the on-site cost of reclaiming and re-establishing the stability of the slopes adjacent to the proposed building construction in accordance with the First (and Interim) Phase of the Phasing Plan (Ph1). This estimate will be reviewed by the Town’s consulting engineer, who shall set the performance guarantee amounts to assure timely and proper construction of the site reclamation. The performance guarantee may also include the costs of improvements for potential damage to town roads and facilities caused by the transportation of earth materials. 

Diane Hardy stated she has had complaints from the public about the severity of the slopes.  There should be some kind of safety controls, so kids don’t get in there and get hurt.  She is adamant those slopes have got to be stabilized.  It was reasonable that be done within a one year timeframe.  That would be from the date of the approval, if the Board is inclined to approve this tonight.    

Phase 1 shall be completed within twelve (12) months of this approval and said completion shall be deemed active and substantial development or building as provided by RSA 674:39. Phase 2 shall be completed within twenty-four (24) month of this approval and

 The purpose of this approval is to cover any contingencies that might affect the public welfare such as site opening, erosion control, and restoration, and revegetation of the site. This performance guarantee shall be posted prior to the execution and recording of the Plan. The performance guarantee shall be in the form of a self-executing Letter of Credit or performance bond document acceptable to the Town’s legal counsel. 

These monies will not be released until the date of completion of site construction. For purposes of these section, “date of site completion” shall be defined as the date that the site and permanent erosion and sedimentation facilities, enhanced landscaping and plantings and re-establishment of vegetation on site occurs in accordance with the approved plans, and this decision in the judgement of the Town’s engineer. 

There shall be no transfer of lots under the ‘Proposed Lot Line Adjustment” for 2 Forbes Road and 175, 177, and 181 Exeter Road, dated 10/23/2017, last revised on January 11, 2018, and owned by NIP-Lot 6, LLC and Maplewood and Vaughan Holding Company until Phase 1, including interim Phase 1 grading and bank stabilization as shown on Drawing PH1 is completed in accordance with these plans. 

The stop bar, pavement markings, and striping associated with the off-site intersection improvements performed under the previous conditional approval dated April 14, 2015 shall be re-striped prior to final project completion and release of the bond. 

Diane Hardy stated you can hardly see the striping anymore and it needs to be redone, before the completion of the project.

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. 

 Diane Hardy stated these conditions will be incorporated into the Development Agreement. 

Rob Graham asked about the sewer design aspect.  They have put the design of the sewer system off.  It was part of the last conditional approval.  Val Shelton stated the prior approval has lapsed.  She thought the question being asked was whether that was being linked to the building permit or linked to the signed plan.  Diane Hardy stated she would have to research it.  Rob Graham just wanted to make sure they recalled the meeting with the Public Works Director.  Diane Hardy clarified that the Water & Sewer Superintendent has jurisdiction over the water and sewer system.  He approved the draft language in the conditions.  

Val Shelton asked if Rob Graham received the Planner’s comments.  He said he had, but he only had a chance to skim through them.  In general, he is in agreement.  The Planner has been very thorough with them.  He gets cautious about the timing of some of the items.  The

Town does not know where the sewer is on Route 108 and they don’t know the condition of it. 

Diane Hardy stated they need to have someone go out and evaluate it and test it to identify it.  Rob Graham stated they had gone through this discussion during the earlier application process.  He would like to sit down with the Sewer Superintendent and talk about it.  They are going to be demolishing houses and excavating that property.  They will know then where those pipes are and where the connection points are.  There is a lot of design work in that. 

Val Shelton asked if the houses being demolished were connected to sewer.  Rob Graham answered they were.  There is not a risk that they will be either unable to connect to sewer or provide a septic system.  They are not trying to build something that can’t be built.  It is a timing issue that the design of the sewer needs to be concurrent with the design of the building for the building permit process.

Val Shelton stated the Town Engineer is requesting this be done as part of site plan review process.  The Planner has an email from the Wastewater Superintendent concurring.  On the applicant’s side, he is just receiving this information and hasn’t had a chance to look at it.  Diane Hardy stated they have asked for this information for four months.  This isn’t anything new.  Rob Graham stated they went through this same issue before with the prior approval and it is expensive.  He had told Diane Hardy he would like to go before the Board again to discuss this, because the Underwood Engineer, who is now working on this did not go through that process with them before.  They had put the design of that system off until later.  They agree the Town should not be issuing a building permit without a sewer design.  They just feel it should be simultaneous with the development of the building plans, so they know what their flows are.   

Val Shelton stated the other concern is the stormwater management plan.  She failed to see how one could be adequately done without having an actual building and parking plan.  Rob Graham stated they did it based on the calculation for this size of the building.  Diane Hardy stated their water resource engineer has agreed to provide the information that was being requested by Underwood Engineers.  Rob Graham stated he had no objections to this item.

Val Shelton stated her concern was she would not want to see this treated as a gravel operation, where there is one site plan where 50% of the work has been done, then that’s expired, and now they are back with another plan to continue with excavation.  It has been stated they will excavate in a timeframe based on where they can move the gravel.  What she is hearing is this is a gravel operation.  They will finish this at a point in time where there is a market for the gravel, as opposed to going in and creating a site to put up a building, which is the intent of site plan.  Rob Graham stated they are bound by the ability to move material.  If they have to pay to get rid of the material, they could never afford to build.  At 50% of their excavation, they are active and substantial.  Rob Graham stated they very easily meet that standard.  They have worked diligently to comply with every other aspect of their approval.  They have accelerated their schedule, with this site plan.  They have lowered the amount of material they have to get rid of, with this building.  They have continued on with their commitment to Route 108, with the landscaping.  This is very expensive work.  They have been fighting with NH DOT for three years.  They already lost one tenant, because they could not deliver the building based on DOT’s timeline.  He disagrees with the idea their original approval has lapsed.  They have been undergoing work and they meet the standard of the State law. 

They are spending $80,000 on engineering for this new building.  They have six buildings already. 

Val Shelton asked the Planner to explain what happens if the applicant fails to complete Phase 1, as they have defined it, which is all the excavation and the bank stabilization.  She asked what the Town’s recourse was relative to the performance guarantee.  Diane Hardy stated, if the work is not done in a twelve month timeframe, the Town could call the bond and get the excavation and stabilization done or just do the stabilization, if the developer does not do the stabilization.  The performance guarantee is not so much a guarantee that the building gets built, but that the stabilization gets done.  It is what would be required, if they came in under the gravel excavation requirements.  It would have to be done in close coordination with the Town Attorney. 

Rob Graham stated, as they have gone through the details of these approvals, they have been through a development agreement with the Town and they ended up with a very fair document.  They will do that again, of course.  They have no problem providing what they need to understand in terms of engineering documents.  The only exception is they would like time to prepare the sewer design with a specific building plan in mind.  That makes sense and does not put this Board at risk or anyone else at risk.  In the last iteration of the development agreement, Diane Hardy produced a draft, it went to the Town Attorney for his review, they themselves reviewed it, and they went back and forth and came up with a document that worked.  He has faith in that process again.  He was not sure about constricting the time period under the State vesting statute.  They are reluctant to retreat from their rights under the State statute.  Their intent is to go as fast as they possibly can.  They may need to tailor that language in the development agreement.  They are comfortable doing that with the Town.  He is not comfortable saying they have to have a building built in twenty-four months.  Val Shelton stated this is only for Phase 1, which is removing the gravel and doing the stabilization.  Rob Graham stated, in a perfect world, he would love to have everything out of there in a year.  What he is hearing is they are more concerned, if it is still open and working and they haven’t stabilized as they go, which is all governed under the NH Department of Environmental Services Alteration of Terrain permit.  He would be comfortable with completion of the excavation and stabilization work within twenty four (24) months. 

Val Shelton asked, if it falls under the AOT permit, why stabilization has not been done.  Rob Graham stated the site will be stabilized under the AOT permit.  The soils on-site right now are stable.  When they are speaking of what is and isn’t stabilized per the slope, they are talking about the final slope of this slope and the treatment prescribed under the geotechnical report.  They are not at the final elevation yet.  When they get there, the slope will receive stabilization treatment.  Val Shelton stated they are proposing to excavate the dark hashed area on the plan and stabilize it within a year.  Rob Graham stated that is probably more of a twenty-four month project.  He would like to be done with it by August, if he could.  He is trying to be honest with them.  Val Shelton stated they were trying to be realistic, if they excavated 50% in the past three years.  Rob Graham stated they have been back in with a redesign for this process for nine months.

Val Shelton stated the Board is well aware of the continuances.  She stated there were two (2) issues.  One was articulated in the Planner’s comments under (G) 1, as follows:

G) The applicant shall comply with the following review comments of Underwood Engineers: 1)

The applicant’s engineer shall provide a preliminary sewer design, as a revision to the Utility

Plan (as set forth in items 22 – 28 of the review letter from Underwood Engineers, dated January 29, 2018 and February 6, 2018) to be reviewed and approved by Underwood Engineer, Inc. and the Town’s Water and Sewer Superintendent, prior to the plan signing, and recording of the Site Plan. Such design, at a minimum, shall provide the following information:  Basis of design flow per Env.-Wq 704.03  Identify basis for design of the pumping system (pump flow rate and TDH)  Identify force main size and material  Provide details and sections of pumping system with influent pipe invert elevation, pump on/off elevations, alarm elevations, etc.  Confirm elevations and location of existing sewer system at the proposed tie-in manhole  Confirm condition of existing sewer service if proposed to be used as a sleeve and show the location, size and material on the plans  Identify method for connecting proposed pipes to the existing sewer system (e.g. field core manhole, tee-wye connection, insert-a-tee, etc.) and any special coordination requirements (e.g. bypass pumping)  Identify NHDOT permit requirements (graphically and notes)

The question is whether the preliminary sewer design is done prior to the time of recording of the site plan or the building permit.  She will relay to everyone that Chairman Eric Botterman did weigh in on this.  His opinion was to issue it prior to the building permit.  The Town Engineer wants it as part of site plan review.  Diane Hardy stated this would be done before the plan was signed and recorded. 

Val Shelton asked the engineer how he did this site plan work without knowing the use of the building.  Joe Coronati stated they could have a tenant with a use with much higher sewer flow projections.  They would have to redesign the system again based on the new use.  Peter Nelson stated they must have some idea.  There are six buildings already there.  Joe Coronati stated they do this based on the State’s sewer calculations, which is just based on square footage of the building.  If the tenant ends up being a high water user, this all gets done again.  He said they were saying why not do it based on the actual tenant, when they know the flows, instead of doing it now and then again when they get a tenant. 

Rose-Anne Kwaks asked if it would be prudent to expect the highest use of the building and plan on putting that in.  She remembers them saying when they first came in for site plan that it could be quite a few years before the excavation was done. 

Rob Graham stated they would design a base system, if the Board wants them to.  It’s no different than not having one.  They will be able to design something.  If the Board would like them to design minimum flow, they will do it.  They are asking as a neighborly approach it would help them to design it one time.  This is probably a $25,000 sewer design.  They don’t know the reliability of what is in the ground and neither does the Town Sewer Department.  They endeavored in the last round to say to do this together, research it and see what the right thing is to do.  They are not trying to get by on anything.  They have the ability to connect.  If they have the inability to connect, because the quality of the Town system doesn’t allow them to, they have the ability to put a septic on site.  There is no risk.  They will design a system based on the minimum requirement.  They would rather do it, when they pull the building permit. 

Jane Ford stating they were concerned in the beginning about this being a gravel pit and we are here three years later concerned about the same thing.  She understands they don’t know who is coming in as a tenant.  Rob Graham stated they cannot tell a tenant they have four years of work to do before they can start building.  They have to get the site ready.  They are stuck with the land they have.  Jane Ford stated her concern was it is a tenant, not necessarily someone who would be there forever.  The first tenant may need a little water, the next a lot.  She does not understand why they would not build for the maximum amount of water.  Rob Graham stated that is just not how it’s done.  These leases are for twenty (20) years at a time. 

Rob Graham stated they will not try to build without a disposal system.  They can’t. 

Peter Nelson stated he was okay waiting for the building permit.

Rob Graham stated they would happily pay the base fee for sewer flow for the impact fee today.  This is a nuance of the construction cycle.

Val Shelton felt they should tie it to the building permit.

Rob Graham stated they would sit there for up to the next six months going through a modified sewer discharge approval over designing something that will probably not get built.  If site plan approval says they cannot build this building until they have a sewer design, it doesn’t matter when it is.  He can’t build until he has it. 

Val Shelton stated it was more important to her this excavation work get completed to have a build-ready site to get a tenant in there.  Relative to economic development in the town, the importance is to have these kinds of sites available for tenants to come into town.  She agrees with Diane Hardy on the time periods.  If they don’t meet the one year time period, they will be back here.  It is more important to complete the site.  Rob Graham stated they were happy to schedule that one year checkup today. 

Rose-Anne Kwaks stated she was confused by the designing of a building with a loading dock, etc., without having a tenant.  She asked what if they got a tenant without knowing their needs.  She stated to get the tenant first.  Rob Graham stated you can’t.  The tenant can’t sit around for two years, while they go through permitting again.  Val Shelton agreed.  Rob Graham stated the height and turning radius of a tractor trailer is the same.  They use that for designing their loading dock. That is a standard construction detail.  The turning radius is done with a template.  These are industrial standards.  He has never built a building they haven’t redesigned twice.  It may need to be a little larger or smaller.  If someone wants to come to NH and manufacture in our state and they are moving out of MA to bring a business here, he has to be able say he can put them in that building in four months, seven months, or ten months.  He has been working with DOT for three years on the highway access permit.  This has to be done ahead of time before they can market a site.

Val Shelton stated this is all about timing.  The Town Engineer is saying what they would like to see and Diane Hardy is in agreement with that.  It is up to the Board whether or not it is important to the Board to have this condition in the approval or are they okay and what the applicant is asking for, to tie it to the building permit.  The other issue would be the timing of Phase 1.  Diane Hardy is recommending one year.  She is in agreement with that and with two years on tying the permanent vesting to, not just Phase 1 being completed, but also the substantial construction of the building. 

Rob Graham stated they cannot live with a twenty four month deadline to construct a building.  That is not what State law says and they just can’t do it.  Val Shelton asked if they were using the same language as the last approval.  Diane Hardy stated active and substantial development means “substantial excavation.”   Rob Graham stated then they were active and substantial.  Diane Hardy stated that was right.  Val Shelton stated she was reading from “permanent vesting”.  “Permanent vesting occurs upon substantial completion of the building and site improvements as shown on the plan.”  Rob Graham is in disagreement, if that time period is twenty four months.  Rob Graham stated, if he invests the money to excavate the site, stabilize the slopes and then he’s sitting there with a pad-ready site, he believes he is vested.  Every aspect of the Supreme Court law in this state says he vested.  If he does not have a tenant, he is not going to build a building in twenty four months. He has already done all the off-site improvements.  He’s done the intersection improvements, all of this work, so he believe he is vested.  If someone shows up here in twenty four months and one day, he would not be able to get a building permit? Val Shelton stated it come back to whether this was the original language in the 2015 approval and he was in agreement.  Rob Graham stated he did not have that in front of him, but his understanding was they needed to have active and substantial development.  Val Shelton stated it was defined and the State law requires the Board to define what they deem to be active and substantial development.  The Board’s definition for the permanent vesting was substantial completion of building and site improvements.  That is what it was defined to be in the 2015 approval.  What they don’t know is the time period.  Rob Graham stated independent of that he had no problem complying with active and substantial within a year or working through this site.  They are not going to retreat from their right after doing all this work to not have a right to build that building with a pad-ready site.  He is fine with the language other than saying he has to have a building built by this time.  That authority is not in the statute. 

Diane Hardy read from the approval letter, from April 17, 2015.  “Substantial excavation shall constitute active and substantial development before building.”  Rob Graham stated he would still welcome that language.  He agrees with this language.  Diane Hardy stated she they went over that several times with the attorney to get that language right. 

Val Shelton stated the wording in item J. would change to “Substantial excavation shall constitute active and substantial development or building.”  Val Shelton stated they could put “Completion of Phase 1”.  Rob Graham stated active and substantial for one year, completion of Phase 1 in two years.  That is reasonable.  Val Shelton stated that was their intent and she did not see an issue with that.  This would be in the Developers Agreement.  Diane Hardy stated it would be a condition.  All of the excavation and stabilization needs to occur as part of Phase 1, which was recommended for a twelve month timeframe, not a twenty four month.  Rob Graham stated that was not a reasonable timeframe.  He stated with all due respect they do this for a living all over the state.  He knows the time this takes in NH. 

Val Shelton stated there was a condition she would add to this.  It would be that all of the plan set pages shall clearly identify the lots depicted prior to any plan being signed.  It was hard to follow the plan set without the identification. 

Val Shelton stated they have before them a site plan application.  They have the Planner’s comments.  The Board has the ability to continue the meeting for additional information, to make a motion to approve, they can move to approve with the conditions outlined by Diane, then can make a motion to approve amending the conditions, which it sounds like the applicant is looking for.  This would be prior to the issuance of a building permit as opposed to prior to the signing of a site plan.  Also, change the language defining active and substantial completion within a one year period being Phase 1 and the excavation and stabilization being completed within a two year period.  Rob Graham stated it could state or as otherwise governed by the Alteration of Terrain permit.  For example, if they hit the slope grade before that time period, they will have to stabilize it.  Val Shelton stated the AOT could say five years, but that is not what the Board is looking for.  She added the plan set pages should have more detail. 

Rose-Anne Kwaks asked Diane Hardy for her opinion.  Diane Hardy stated she wants to stick with what is there.  She thought it was most important to get the slopes stabilized as soon as possible.  She is willing to bend on the building permit issue.  She wants the excavation and stabilization done in one year for Phase 1.  Rob Graham was not comfortable getting that entire phase of work done in one year.  He would like twenty four months for completion of Phase 1 in twenty four months.  He indicated points on the plan stating, if they start here and move through this slope, they probably won’t get over here for eight months.  He won’t have the time in winter to do that.  He does not want to open that up before spring.  He is not just going to cut that slope arbitrarily.  They will do it in a construction sequence, so it is not left open for a period of time.  That is just how the site management occurs.  Taking his rights under the statute down to twelve months for active and substantial completion is unreasonable. 

Rob Graham stated he was happy with doing a site inspection with Diane Hardy or the Town Engineer in terms of when you are coming into spring, you want to be sure you are ready for it.  When you are closing up the site for the winter, you want to make sure you are okay where you are.  They are all speaking in absolutes.  That doesn’t make sense.  He stated that Diane Hardy may come out and see it and say she is happy with where they are at.  Diane Hardy stated this isn’t a gravel pit.  They are clearing a site for development.  She asked why they are treating it like a gravel pit.  Rob Graham stated he is forced to, because of the composition of the site. 

Rose-Anne Kwaks stated she is inclined to agree with the Planner.  A lot of thought and time went into her recommendation.  She based it on the concerns of the Town Engineer.  She would like to see economic development in Town, but she is relying on the expertise of the Town Planner and Town Engineer, as proposed.

Rob Graham requested a continuance, because they were not going to accept that.  He will meet with the Town’s Engineer again and go through this item for item.  He has been through this enough times and the Town Engineer would understand, as well.  They are not trying to get anything past the Board, in terms of any of it.  This is a reasonable proposal. 

Rose-Anne Kwaks stated she would like another continuance and a TRC meeting.  Rob Graham stated they were fine with that. 

Action

Motion:             Rose-Anne Kwaks made a motion to continue this hearing to March 20, 2018 and for the TRC to meet to iron out these two items and report back to the Board

Second:            Peter Nelson

              Vote:                  All in favor

Brandt Development Co. of NH, LLC - Public hearing for an application for subdivision, at 10-20 Spring Street, Tax Map U2, Lot 71, M2 Zone.  The proposal is to convert the six existing apartment units into condominiums.

Action

Rockingham Ballroom Too, LLC/Next Level Church - Public hearing for an application for

minor site plan, at 22 Ash Swamp Road, Tax Map R3, Lot 20 and 7 Ash Swamp Road, Tax Map R3, Lot 15, B1 Zone, and Newfields Tax Map 202, Lot 26.  The proposal is to change the use of the property from a ballroom/function hall to a church, which falls under “civic use” and “place of assembly”, permitted uses in the B1 zone.

Action

Agenda Item #5

Workshop

Stormwater Regulations: Kyle Pimental, Strafford Regional Planning Commission and Jamie Houle, UNH Stormwater Center

Kyle Pimental stated Jamie Houle had to leave, but if the Board had any questions for the Stormwater Center he can get them to him. 

He stated the Board has had site plan and subdivision updates.  He did not know where things were in terms of the developer review.  Diane Hardy stated she had spoken with Jeff Clifford and he was unable to get much to her for this meeting.  It sounded like he needed a little bit more time.  She read:

“The proposed regulations parallel NH DES AOT regulations quite closely.  They are environmentally sound and provide the Planning Board with flexibility with administration of the regulations.  The level of engineering and cost of stormwater management isn’t going to change much, if any, for a project greater than 100,000 sq. ft.  However, an issue of concern is to the owner and the applicant is the level of engineering needed for smaller projects, because the design and permitting fees and the stormwater infrastructure could be very high relative to the overall cost of the project.  The cost for stormwater management on a tight site an increase exponentially, because of the technology required.  For example, subsurface detention vs. open detention basins.  The owner/applicant may not want to invest in a project with potentially significant unknown costs.  At what point in the review process could the engineer or owner know if some relief would be acceptable to the Planning Board.  I don’t have a magic bullet to address this concern, but if you want to call and we can discuss.”

Diane Hardy stated she asked Mr. Clifford if he could join them for the public hearing.  She also asked Eric Chinburg and he is interested in consulting with the Board, with his engineer. 

Val Shelton stated she would rather see this stay under a workshop session than move it to a public hearing, until the Board can have these discussions.  When she read through all of these, her reaction was it is overwhelming.  The thresholds for these new regulations would go into effect and how do they affect someone who has a piece of land and wants to subdivide off one lot.  It is almost like it is not going to be feasible to do that, not just to do it from the beginning, but every year you have to hire an engineer or a stormwater inspector and have the systems inspected.  It just seems like too much of a burden for these small or tight lots.  Particularly as we have projects involving urban infill.  She asked if you could achieve urban infill if the cost to do so is too onerous.  She had many questions about this.  The thresholds are a concern.  At what point are the stormwater management plans required for major site plan or subdivisions.  At one point, it defines boundary line adjustments and anything that could even trigger a duplex.  Diane Hardy stated they would apply to any application required under the site plan regulations and duplexes (two units) are not under that.  Val Shelton stated that raises the question of why they are defined that way.  A minor subdivision is an increase of residential units on a single lot provided the total units does not exceed six.  So anything under six in a minor subdivision.  If she had an accessory unit, as she reads it, they are subject to a subdivision.  If she is in a zone allowing duplexes and she pulls a permit to make a single family into a duplex, then she needs to come for minor subdivision.  Diane Hardy stated the definitions for minor and major subdivision have not changed.  Val Shelton stated that is her question.  How does this compare with what they have?  Kyle Pimental stated that is a good point.  The minor subdivision definition has not changed.  When you get into Part B, the minimum threshold for applicability, he did not believe that changed either.  Val Shelton asked if you take Section 1:03 of the definitions, there have been no changes there.  Kyle Pimental stated not to major or minor subdivisions.  Val Shelton stated we might want to look at those definitions.   Kyle Pimental stated they did add some definitions and pointed out which ones.

Val Shelton stated you have language on the EPA MS4 program.  She asked Gretchen Kast what the status was with the Town Council.  Gretchen Kast stated the litigation is still going forward.  Val Shelton stated the Town is fighting to not have to adhere to MS4.  Diane Hardy stated Newmarket has joined the coalition of municipalities who have appealed MS4 permit.  Val Shelton stated the Board needs to be careful that they and the Council are not going in two different directions.  Kyle Pimental stated they do not reference MS4 in the regulations, just definitions.  Diane Hardy stated if there is no reference to MS4 program in the regulations, maybe they should just take out the definition.  Kyle Pimental stated he will go back and look over the regulations to make sure it is not in there. 

Val Shelton stated under Purpose and Goals, they are putting them under Section 3.07, where a lot of the elements should be moved up to the general Purpose section.  A lot of these elements don’t have a lot to do with stormwater management.  They have to do with the overall subdivision regulations and why we have them.  If you look at B, C, D, F, and G, they have nothing to do with stormwater management, but they have everything to do with subdivisions.

She thought what was missing in the overall general purpose section was what they are trying to do as a Planning Board.  They are “balancing the process of growth, development and change with the need to protect and enhance those qualities which make Newmarket a safe and desirable place to live, work, and visit.”  They are also trying to balance that with “the rights of private property owners.”  Everything they do as a Board is limiting the rights of private property owners. And, as a Board, they should be trying to balance that. 

Val Shelton read, “Efforts shall be made to limit any single, contiguous section of impervious area draining to one outlet area to be no more than 10% of the lot area.”  Kyle Pimental stated that was in the existing site plan regulations.  It is now being proposed in subdivision regulations.  Val Shelton asked if it belonged in subdivision.  She asked what if you were dealing with a road.  Kyle Pimental stated they did all of site plan regulations first.  Val Shelton stated there may be some things that are not applicable to subdivision or may need to be modified that were brought over. 

Val Shelton read #5, “The design of the stormwater management systems shall account for upstream and up gradient runoff within the watershed that flows onto, over, or through the site to be developed or redeveloped”.  She stated, as she understood it, what they are striving for is no increase in offsite flow.  They want to treat all of the water on one site and keep it there with no increase.  She asked if this was added.  Kyle Pimental stated this is from the model.  Val Shelton stated this means the landowner is responsible for wherever water is coming from onto her site.  This seems to say you have to account for and deal with all of the water coming onto their site.  Diane Hardy stated you have to be looking at your stormwater management plan on a watershed basis and properly handling all stormwater that crosses the site.  Kyle Pimental stated the word watershed was added in there by the subcommittee.  The design should be taking all of the water into consideration.  Val Shelton stated the upstream water people, unless there is a legal issue of water trespass, won’t have any obligation put on that landowner to deal with their water.  If you have a wetland draining into someone’s site.  Under this regulation, it would be all of the drainage that hits your site, as well as all of the water on your own site.  You are going to reduce the water coming off your site, not just the water coming off your site now, but also the upstream water.  All water stops here, is what they are saying.  She asked where the baseline is.  Diane Hardy stated the baseline is the predevelopment flow.  Kyle Pimental stated what they were trying to get at was in the past people were designing for stormwater flows and they were strictly looking at that site.  They were not taking into consideration anything else.  If you get a heavy rain event, all of a sudden that site can’t handle that water, because the water coming in from outside the boundaries was not taken into consideration.  Diane Hardy suggested they could have the attorney look at it.  Bill Doucet stated what is being talked about here is not anything different from what any engineer already does. If there is a hole in the regulation to say you only have to look at the site itself, then that is a problem. 

Diane Hardy stated there are some technical questions here that are really based on hydrology and she thinks our Town Engineer should be here.  This is asking that you look at things on a watershed basis.  Kyle Pimental stated that may have been something already happening, but was not specified in the current regulation.   

Val Shelton asked if this only applies to major subdivisions.  Diane Hardy stated yes.  Val Shelton stated it should be clear it is only major subdivisions.  She stated they could re-word this and say this applies to major subdivisions.  It just needs to be clarified. 

Val Shelton asked Kyle Pimental what other municipalities have adopted these.  Kyle Pimental stated Newmarket will be the first.  Exeter is working on theirs, as well.

Jane Ford suggested a note next to any website links indicating that they could change at any time.

Val Shelton stated the burden is on the landowner to submit the annual inspection and maintenance program and it needs to be uploaded.  She asked who was responsible to upload it.  Diane Hardy stated it was the engineer of the project.  Kyle Pimental stated that was already part of the Town’s obligations under the EPA Administrative Order and a PTAPP record keeping system has been set up by UNH/DES.

Val Shelton stated her only comment on site plan was on page 6 (E) (i), under 3.07.  Kyle Pimental stated they changed the wording.  The attorney wanted “located outside wetlands and surface water setbacks and buffers” to be removed…and the word “located” remains in the text which will be removed.

There was discussion of why agricultural uses would require site plan review.  It would in the instance of a farm.  There may be many greenhouses involved and a lot of water use.  The impact would trigger site plan review.   Under the current language, agriculture uses would be exempt.

Kyle Pimental stated the reasons why certain numbers of percentages were used in terms of pollution removal rates would be questions for the engineer. 

He stated some concerns had been expressed in terms of the maintenance requirements and some of the site inspection reporting responsibilities that are fairly new and extensive.  This Board and other communities will have to deal with the benefits of making sure that once that Stormwater BMP is installed, it is only good if it is functioning.  If there is nothing there to make sure that applicant takes care of it, it is not doing what it is supposed to be doing.  Val Shelton stated this would probably become the expense of a homeowners association in the case of a subdivision.  If you have a seven lot subdivision, it would trigger major subdivision threshold and then, as part of those governing documents that obligation is going to run with each lot and you are putting the burden on each lot owner.  Under site plan and subdivision review, you need an inspection every year.  She asked if you are going to have ten separate engineering plans coming in every year.  It almost pushes things to encourage open space developments because there needs to be an entity to provide maintenance and provide record keeping related to the stormwater BMPs.

Val Shelton stated it would be important to have the two different sides to the input, including the engineering and the developer’s perspective.  Diane Hardy asked if the Board would like her to invite Eric Chinburg and Jeff Clifford to join them at the next meeting or provide written comments. They said yes.

Peter Nelson stated they need to tie these regulations to real world examples to understand them and see the benefits.  He had questions on where the numbers came from.  Water Street is a good example.  Val Shelton stated the question would be whether the development on Water Street could have been done under these regulations or if the redevelopment of the mills could have been done.  Would the developers come in with dozens of waivers, because they could not meet the regulations?  It was noted that Water Street did not come in under the Town’s stormwater regulations because it didn’t meet the threshold; however the applicant voluntarily did some BMPs and green roof tops.

Kyle Pimental stated they did include some options for mitigation for redevelopment.  There is language regarding the nutrient removal.  They added options to allow some flexibility for developers, including an option for off-site mitigation. Val Shelton stated they will only be allowed to connect to the municipal storm system if the site conditions make alternatives not feasible.  Connecting to the storm system may be more financially viable option for them.  Kyle Pimental stated they used the language already on the books.  It would be up to the Board to tweak it. He explained that even if they tie into the municipal system then they would still have to meet water quality treatment standards on-site.

Kyle Pimental will take his notes and forward them to Diane Hardy to go over for the next workshop to be scheduled.

Zoning Regulations changes pertaining to the waiver of impact fees related to Accessory Dwelling Units

Diane Hardy had proposed language to go over based on Board members’ comments.

Val Shelton has proposed the Planning Board may waive impact fees where it finds that a proposed Accessory Dwelling Unit (ADU) will meet both of the following criteria:

Be created from conversion of existing finished living area;

The ADU will not increase the number of existing bedrooms on the property and where it finds that one or more of the existing bedrooms on the property will be dedicated to the ADU use or removed from its existing use or location.  For purposes of this section, a proposed studio ADU will account for one bedroom.

She stated that would be the suggested language.  Her reason for that is if someone is finishing a studio space over a garage and it is existing living space and they get rid of another bedroom in the primary residence, there is no increase in impact. . As opposed to someone who has unfinished space over a garage and they are adding additional living space and another bedroom.  That may be considered an expansion of use. 

William Doucet stated to get a waiver, they will finish the space first and then come in a month later for the accessory apartment.  Now they will meet the waiver requirement. There should be a time limit.  Diane Hardy asked how you regulate that.  Val Shelton stated it would be on the tax card.  Part of the burden on the applicant would be showing the building plans.  She stated William Doucet had made the point if there should be a time period for that finished space to be in existence, before changing it to and ADU.  They can’t just finish it to circumvent the fees.  Peter Nelson stated you would have to be pretty conniving to go through that.  This just puts an additional burden on the Board.  It would not happen that often.  Rose-Anne Kwaks felt they should not give any waivers.  Peter Nelson stated Val Shelton’s language was fine.  You don’t have to grant the waiver.  He felt they were wrapping too much administration around this. 

Diane Hardy stated she would package this for public hearing.  The Board was in agreement this should go forward. New/Old Business None.

Agenda Item #6 - Adjourn

Action

              Motion:             Rose-Anne Kwaks made a motion to adjourn at 9:46 p.m.

              Second:             Jane Ford

              Vote:                  All in favor