Minutes
NEWMARKET PLANNING BOARD MEETING
MAY 8, 2018
MINUTES
Present: Eric Botterman (Chairman), Val Shelton (Vice Chairman), Jane Ford, Sarah Finch, Michal Zahorik (Alternate), Bill Doucet (Alternate), Daniel Lewis (Alternate), Gretchen Kast (Town Council ex officio) and Dale Pike (Town Council ex officio Alternate) in the audience.
Absent: Janice Rosa and Jamie Bruton, were excused
Called to order: 7:00 p.m.
Adjourned: 7:58 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Public Comments
Eric Botterman appointed Michal Zahorik and Bill Doucet to fill in for absent members.
No comments.
Agenda Item #3 – Review & approval of minutes: 04/10/18
Action
Motion: Jane Ford made a motion to approve the April 10, 2018 minutes
Second: Sarah Finch
Michal Zahorik was listed as present at the meeting and he had been absent.
Vote: All in favor
Agenda Item #4 – Regular Business
Jonathan Smith & Caitlin Smith – Continuation of a request for a Waiver of Impact Fees for an accessory dwelling unit (ADU) at 14 Woods Drive, Tax Map U1, Lot 1-50, R2 Zone.
Diane Hardy stated this application was submitted in October 2017. It was continued, as the Planning Board wanted to work on some language for the Impact Fee section of the Zoning Ordinance that would allow the waiver of impact fees for certain accessory dwellings. There was a Planning Board public hearing on that on March 21, 2018. It was then forwarded to the Town Council for review. They had a public hearing and two readings and they approved the language in April. That language is now in effect. The new language states, “The Planning Board may waive impact fees where it finds the proposed accessory dwelling unit will meet both of the following criteria: 1. It is being created from the conversion of existing living area. 2. The ADU will not increase the number of existing bedrooms on the property and where it finds 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 count for one bedroom.”
She had reviewed the Town’s tax records for this property. In 2013, when the former owners owned it, there were four (corrected) bedrooms. The area for this accessory apartment was the master bedroom suite over the garage, the addition of which made four bedrooms total in the residence. Mr. Dion received approval for the ADU from the Zoning Board of Adjustment. It is her opinion that it meets the requirements for an impact fee waiver. She thanked Mr. Dion for his patience.
Action
Motion: Val Shelton made a motion to grant the waiver of impact fees for the accessory apartment at 14 Woods Drive, Tax Map U1, Lot 1-50, in the R2 Zone, based on the findings of fact that the area being converted to the accessory apartment was the existing living area prior to the conversion and that the bedroom count of the home has not increased
Second: Michal Zahorik
Vote: All in favor
Brandt Development Co. of NH, LLC – Continuation of a 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.
Eric Botterman stated, at this point, they still have not accepted the application. He asked Diane Hardy if she had a recommendation on this. Diane Hardy stated, after the first meeting for this application, she had spoken to Mr. Brandt regarding the need for modifications to the plan. The condominium site plan, as presented, is incomplete. There is a public right of way, which is also a Class VI Town road, which is beyond the parking area adjacent to Mr. Brandt’s property. In order for the application to be complete, that information needs to be shown on the plan. As the Board goes through this application, the relevancy will be apparent. She recommended that the Board deem the application as being complete, subject to this critical information being put on the plan prior to signature. She stated some other information is lacking that has been brought to her attention by Bill Doucet. Bill Doucet stated relative to application completeness, there are several issues. Diane Hardy stated, at this point, the application is substantially complete.
Action
Motion: Val Shelton made a motion to accept the application for technical review
Second: Bill Doucet
Vote: All in favor
Henry Brandt, owner of the property, stated he wished to convert the multi-family building into condominiums. There is no proposed construction or changes. He had no problem with most of the Planner’s recommendations in her memo. He had spoken with Mr. Turcotte, the previous owner of the property, who had the preceding site plan approved. Regarding what the Board would like to see on the plan, this has presented a challenge for them. He stated Elm Court is a rather “strange animal”. It comes off of Spring Street and forks, with one part heading toward Elm Street. Looking at the plan, you can see where it comes in off of Spring Street and forks. He was not sure what the Board wanted written on the plan. Diane Hardy stated it was not labeled as a public right of way and not identified as a right of way on the plan, which is one of the requirements. It is a Class VI road and has not been maintained by the Town for over five years. It was maintained for many years prior to that. A barrier was put up to prevent it from being a through road in 1989. She has reviewed her memo with legal counsel.
Bill Doucet asked about the status of the road. Mr. Brandt stated they do not dispute that it has not been maintained by the Town. They show it on the plan. Diane Hardy stated she has a plan done back in 1936, prepared by John Durgin. She had attached it to her memo. This depicts a 15’ wide right of way and also provides the survey data that Mr. Brandt has provided on his plan that defines the boundaries to the rear of the property. It should be delineated, as shown on the 1936 plan and identified as such. It should be clear to everyone it is a public right of way and the public has rights to use that, as well as the abutters on either side. Bill Doucet stated it was up to the applicant’s licensed land surveyor to show the right of way. It needs to be shown. No one looking at the plan would know there was a Town road on the west side of the property. Mr. Brandt stated they labeled Spring Street and labeled Elm Court. Bill Doucet stated the communication to his surveyor would be to adequately label all rights of way and easements, so that lay people can look at the plan and understand it. Mr. Brandt asked if labeling Elm Court would suffice. Bill Doucet stated no. It should show the status of the roads. It should show the road location. It is part of the challenge of land surveying to figure out where the boundaries are. Mr. Brandt’s property is many things. There are the boundaries and easements that may favor his land and easements that may favor the land of others. All of that information needs to be on the condominium plan, so that, when a buyer goes to purchase a unit, they know what they are buying. This plan does not adequately inform the future owner.
Val Shelton asked if the Town had an easement across the subject property for Elm Court. Diane Hardy stated no. Val Shelton stated the boundary of the property, as shown on the plan, goes halfway into Elm Court. She asked if there would be liability. Diane Hardy stated there is no liability to the Town. Bill Doucet stated the plan shows the lot line in the middle of a Class V road. That is unlikely. Mr. Brandt stated it was his understanding this plan complies with the 1936 plan. Bill Doucet further explained that Mr. Brandt did not create any of this. It is part and parcel of the property. This property had these complications, when he purchased it. He needs to show what those complications are, so the buyers understand them. Eric Botterman stated the big issue is the clarification of status of Elm Court. Val Shelton stated the subject property encroaches on the Town owned and maintained portion of Elm Court. It is not really shown and it is not a legal boundary. Bill Doucet stated, when the Town is involved, it is a different issue.
Val Shelton asked about the dumpster area that was depicted. Mr. Brandt stated there is no dumpster there anymore. The tenants participate in the Town’s pay per bag program.
Diane Hardy stated this application is before the Board, because, under NH State law in the definition of subdivision, it includes property being converted to condominiums. The former owner, Mr. Turcotte, had applied for a minor site plan approval in 1998 to construct the parking lot. She passed around photos of the rear parking lot, showing how it looked in 1998, when that application came in. There were some major issues with drainage. Mr. Turcotte had agreed to add a storm drain to take care of the water issue that was coming off of the proposed parking area. The existing storm drain is shown on the new plan, which is right in the middle of the area that is the Class VI road. The area west of the parking lot was a portion of Elm Court. The Town maintained that road and it was a through road. It was closed off in the early 1980s, with boulders and arborvitae. The Town has not maintained that road since 1985. Under NH State law, any road that has not been maintained for more than five years is considered a Class VI road. That means since the Town has not maintained it, there is no obligation to maintain it. The private property owners who have frontage on that road or the public at large still have the rights to that road. There was a lot of discussion, at the time, about discontinuing the road. If that was done, the road area would go back to what it was before the road was there. It is important for the information that has been discussed to be on the plan for the reasons stated. It does provide access, not only to the parking lot, but to the adjacent owner’s property.
Her recommendation is the condominium plan be approved, subject to several conditions. One of these is showing that right of way or Class VI portion of Elm Court on the plan. The first condition is the condominium documents would be reviewed by legal counsel and the cost of that will be borne by the applicant. The second set of conditions have to do with prior approvals and the Town’s current regulations. When the plan was approved in 1998, there were seven or eight conditions placed on it. She had gone out and done a quick site inspection of the property. She found there were four things that had over time become deficiencies. One of these is there are no parking barriers or curb stops at the head of the parking areas. There is a section of stockade fence on the northern side of the property across the right of way that has been damaged and should be replaced. The parking area has not been resurfaced in a long time and the original striping has faded. You can’t see where those parking spaces are, so she is recommending the spaces be restriped for proper demarcation on the site plan to be recorded at the Registry of Deeds. The fifth condition is there be no parking of vehicles within the public right of way, i.e. this area they are calling the Class VI Elm Court road. There will be no parking on the adjacent land of the abutter. That has been raised as a concern. The last condition is, because there is a Town drainage system providing service to this area, any paving of the parking area or the area within the public right of way be coordinated with the Public Works Department to make sure the runoff and drainage are properly handled. The next is that this be a continued condition from the original plan that the new condominium association owners will assume maintenance responsibility for plowing the parking area and to provide access to the Town’s portion of Elm Court. She illustrated on the plan attached to the memo in yellow the area that needs to be cleared of snow to provide safe year round access to the abutters on both sides. That condition to be stated in the condominium documents. With that, she recommends conditional approval of the plan.
Bill Doucet asked, since this is a subdivision application, if the Board could impose any site plan regulations other than those approved in the original site plan. Diane Hardy stated none of these are conditions that are not consistent with what was represented at the time of the site plan approval.
Gretchen Kast stated one of the conditions would be contained in the condominium documents. She asked how the other ones would be enforced. Diane Hardy explained those conditions must be met, before the site plan is approved and recorded at the Register of Deeds. Val Shelton stated those other items could be required to be in the condominium documents. There is no burden on the current property owner to maintain all of these. If it is in the condominium documents, the burden would be on the association. Diane Hardy stated they could be incorporated into the documents.
Bill Doucet asked if they would get a chance to look at this again, since it would be conditionally approved. Diane Hardy stated typically no. Bill Doucet stated he was not comfortable with that, because this slipped under the radar in the past. On the subdivision checklist it says to show all easements. These are not shown and they have an impact on this. Diane Hardy stated the Board can add that as a condition of approval and have the applicant come back with a modified plan before plan signing. Val Shelton stated they could also continue the hearing until the Board sees the plan.
Mr. Brandt stated on the old approved site plan, Elm Court is not depicted any differently than on this plan. It is simply shown as a gravel drive. Elm Court shows the same there, as it does on his plan. Val Shelton asked where the reference was to that plan on his own site plan.
Mr. Brandt stated parking places are shown, but it doesn’t say anything about striping. He stated he didn’t care, he will give them striping. He stated, if they read the original notice of approval, it states snow removal will be performed if there is more than six inches of accumulation. There is now a condition stating snow removal must be done and also in the right of way. There is no indication of an amount of accumulation. The condition is being imposed that the property owner has to maintain the Class VI roadway in the winter. Diane Hardy stated he is maintaining the safe access to his parking lot and that is one of the Town’s site plan requirements. Mr. Brandt stated this is being made a new requirement. Diane Hardy stated the Planning Board has jurisdiction over this. If you have a parking area, you need to have access to that area in order to use it.
Eric Botterman opened the public hearing.
Steve Slovenski, attorney for the abutter Richard Thivierge at 2 Elm Court, stated Mr. Thivierge has had issues in the past with people parking on his side and he had “no parking” signs placed there at one point. He stated the Town Planner has provided some very good recommendations. He had viewed the property and it is a little confusing, when you are standing there, just where everything is. The striping will be a big help. Mr. Thivierge wants to make sure, as neighbors, he can make this work with the abutting property owners. He had also noticed the plan did not address the location of the right of way.
Val Shelton asked Attorney Slovenski if the no parking signs posted along the Class VI portion of Elm Court will that impact people coming to visit Mr. Thivierge. Mr. Thivierge stated, when the Town paved the parking lot, the pavement was raised. They put a pad down or he would not have been able to access his property. Val Shelton asked, if there were no parking signs along the abandoned portion of Elm Court, would that impact his property. Mr. Thivierge stated no. He has his parking along the house and the pad in the back.
Mr. Brandt stated a question had been raised of whether the Town wanted to abandon this portion of Elm Court. He realized this was a Town Council decision. He asked whether, as part of this process, the Planning Board had a recommendation about the abandonment of this portion. Eric Botterman stated typically what would happen is the property owners there would go in front of the Town Council to see if they would abandon the road. Bill Doucet stated he thought it was a good idea to properly discontinue the road. It was not helping anybody.
Eric Botterman asked if the Board wanted to approve this with conditions. Attorney Slovenski asked if Mr. Thivierge could see the plan before it was signed. Diane Hardy stated there would an opportunity for that since she had the impression the Board members wanted to see it before signature.
Val Shelton stated she would like to get a legal opinion on the encroachment of the property on the public right of way. She asked if there is a document showing the Town has an easement over that or should there be.
Attorney Slovenski stated the current plan is lacking in some of the specificity they would like to see. He would like the surveyor to show rights of way and property lines.
Bill Doucet asked if the condominium documents would be provided to the Board. Diane Hardy stated they go to the Town Attorney for review, but copies could be provided to the Board. She reiterated the policy for receiving plans and documents prior to a meeting and reminded the applicant, if the Board does not receive those seven days prior to a meeting, the Board cannot review them. Eric Botterman stated it takes a while to sort through things. Diane Hardy stated they will need to have the material for the next meeting seven days prior to June 12.
Bill Doucet stated the applicant should pass on to his surveyor some information. He was not sure if there was a burden to solve everything. The burden is, definitely, to identify everything. There may be questions that there are no answers to, but it has to show on the plan. For example, this plan indicates there may be a Town road over your land. That is a question of title, not survey, but to point it out, by showing it on the plan, so the reader is aware. The information should be there, so a buyer knows what they are getting into. Mr. Brandt stated the plan does show the road going across his land. Bill Doucet stated there may be Board members or potential buyers who are looking at the plan, but nothing is calling their attention to that. It needs to be labeled to the point where they would know that was something they needed to think about. Mr. Brandt stated Mr. Doucet wanted it spelled out even though it was depicted. Bill Doucet stated it is easy for people used to reading plans to see that, but many people are not used to looking at plans and have a hard time reading them and understanding them. Val Shelton stated, as a realtor, it would be her issue to find out for the buyer who is liable for that portion of the road on Elm Court.
Action
Motion: Gretchen Kast made a motion to continue this application to the June 12, 2018 meeting
Second: Val Shelton
Vote: All in favor
Maplewood & Vaughn Holding Co, LLC – Continuation of a public hearing for an application for site plan, requested by Maplewood & Vaughn Holding Co, LLC, at 175 Exeter Road, Tax Map R3, Lot 6, B2 Zone. The proposal is for a 22,000 sq. ft. industrial building with municipal water & sewer.
Diane Hardy stated the applicant has requested a continuance to the next meeting.
Action
Motion: Val Shelton made a motion to continue to the June 12, 2018 meeting
Second: Bill Doucet
Vote: All in favor
Agenda Item #5 – Other Business
New/Old Business
Committee Reports
Gretchen Kast stated the Town Council passed the amendment to the Zoning Ordinance regarding the impact fees for accessory dwelling units.
She stated the Town Council would like a Planning Board member on the Energy and Environmental Advisory Committee. No one volunteered.
She stated they are planning a joint meeting with the Planning Board in June. Diane Hardy will find out if this is intended to be part of a Planning Board meeting or a Town Council meeting.
Planner’s Report
Diane Hardy had a report regarding stormwater regulations. The funding for SRPC to assist the Board ran out at the end of March. She has spoken to them about the possibility of using some Coastal Program funding for this purpose. This would be available on July 1, 2018. She was told that was possible and they are working on it.
Agenda Item #6 - Adjourn
Action
Motion: Val Shelton made a motion to adjourn at 7:58 p.m.
Second: Jane Ford
Vote: All in favor