TOWN OF PELHAM
PLANNING BOARD MEETING
The Chairman called the meeting to order at 7:30 pm.
The Chairman called the roll:
PRESENT: Jeff Gowan, Paddy Culbert, Alternate Victor Danevich, Alternate Henry DeLuca, Selectmen’s Representative Greg Farris, Planning Director Vincent Messina
ABSENT: John CaraDonna, Michael Soby, Alternate Carl Huether
The Chairman announced that Mr. Danevich would be voting for Mr. Soby and Mr. DeLuca would be voting for Mr. CaraDonna.
Mr. Cummings referred the proposed revisions to the Wetland Conservation District. (Attachment #1) He stated that the classification “Prime Wetland” has been removed due to the confusion it brought and replaced with “Critical Wetland”. A critical wetland is one that has not been designated “prime” by the town. A critical wetland is one that the town feels is significant enough to warrant additional protection. “Designated Perennial Streams” have also been identified with these criteria.
Mr. Cummings referred to Page 6, and explained that the initial range for buffer size has been removed from Table I. It has been replaced with a minimum size for each range. He further noted that they have also eliminated the request for the modification to the calculations for a buildable lot size.
Mr. Mark West, Certified Soils Scientist, stated that he had been working with the Conservation Commission on the proposed revisions. Mr. West stated that they have also eliminated wetland areas with rare plant and animal species and areas of exemplary natural communities from Class I. The goal was to only include areas that could be clearly mapped and identified on a plan.
Mr. Gowan stated that the board realizes that there is still a significant amount of work to be done on this ordinance. He noted that the board members met last Thursday to offer their concerns on this proposed ordinance. Mr. Gowan stated that most importantly, the wetland buffers have been allowed in the lot size calculations.
Attorney Bill Mason, Salem, asked if there will be further public hearings held on this proposed ordinance to allow for public input. Mr. Gowan stated that there will be at least one more public hearing prior to a vote on this issue. He explained that the board hoped to have this ordinance ready for the March 2001 ballot. Advance copies will be made available and proper posting will be made prior to any future public hearings.
Mr. Gowan read aloud the proposed wetlands conservation district ordinance. (Attachment #1)
(Mr. DeLuca arrived at 8:00 pm)
Mr. Gowan stated that this reading reflects the new language.
Ms. Harshfield referred to “Purpose and Intent” and stated that this is an entirely new section. She noted that “Definitions” have been added to make the ordinance clearer. It also allows the ordinance to be consistent with State definitions and to comply with the latest versions.
Mr. Farris asked how a developer is to know whether or not he is working in a critical wetland area if they are not named. Ms. Harshfield explained that until such time that the town states otherwise, the named wetlands are candidates for prime status. Mr. Farris stressed that consistency be maintained. Ms. Harshfield noted that the PCC cannot offer an opinion on unnamed wetlands. Mr. Gowan stated that the Planning Board has the ability to issue a special permit to a developer who has already had his subdivision accepted but has not begun construction.
Mr. Culbert asked if “Certified Soil Scientist” were to be added to the definitions. Ms. Harshfield stated that they would add that definition.
Mr. Culbert referred to the definition of “Brook or Stream” and asked for clarification on “seasonally intermittent basis”. Mr. West explained that this definition had a lot of research done on it. The State of New Hampshire is currently looking at redefining a “stream”. More information must be sought before it is finalized at the State level. Some of the wording the State is looking at is “flow within a defined stream channel with a mineraled bottom”. Mr. West offered to provide more information to document this proposed definition.
Mr. Culbert asked if a buffer is always an “upland”. Mr. West explained that, in this particular case, yes, it is. There are possibilities to have a poorly drained soil area that is non-jurisdictional wetland. Mr. Culbert asked if the word “upland” could be taken out. Mr. West stated that the board could do that.
Mr. Culbert asked for clarification on a “watershed”. Mr. West explained that a watershed is the area which contributes surface runoff to a stream. Each watershed is designated on a map.
Mr. Culbert referred to “Vernal Pool” and asked for clarification on a “temporary flooding regime”. Mr. West explained that a temporary flooding regime describes the fact that water floods in that particular area. Most vernal pools have over a foot of water and it is considered “flooding”. Vernal pools are noted by the fact that they dry up during some part of the year.
Ms. Harshfield referred to “District Boundaries” and explained that an exclusion has been added based on the State buffer book. Mr. West explained that a developer may not have to adhere to buffers but he will need a permit to impact the wetlands.
Ms. Harshfield referred to “Applicability” and explained that this section has been simplified at the request of the Planning Board. It allows for no prohibition of construction or additions to structures within the buffer zone on lots approved by the board prior to the ordinance being voted in. Mr. Culbert noted that a plan is legally accepted once it is submitted to the town. The proposed language does not reflect this. Ms. Harshfield explained that this language was reviewed by the NRPC and this exact question was raised. It was stated that this should be a “discretionary” call by the board. Mr. West stated that a plan could be “accepted” but not “approved” by the board. A plan can change dramatically before being approved. Mr. Gowan explained that once a complete plan and application is submitted to the Planning Director, it has been accepted. This issue can be resolved over time. Mr. Messina explained that the subdivision plan must be approved prior to him being authorized to enforce the changed subdivision regulations. He feels that the “Applicability” is appropriate as written. Mr. Culbert requested that town counsel review this language. Mr. Messina stated that it has been reviewed by town counsel.
Ms. Harshfield referred to “Wetlands Incorrectly Delineated” and explained that this language has been updated to current standards. The “qualified soil scientist and/or plant scientist” has been updated to “Certified Wetland Scientist”.
Mr. Farris asked for clarification on “plan” form versus “written” form. Mr. West explained that this language implies or plan or map form presentation. Mr. Farris stated that Mr. Gove typically presents in written and plan form to the board. Mr. West explained that the intention is to have the wetlands delineated and the plan stamped by a Certified Wetland Scientist. He suggested that the language be changed to “written and or plan form”. Mr. Messina stated that delineation implies a map which indicates “plan” form.
Mr. DeLuca asked if this proposed ordinance were “brand new”. Ms. Harshfield explained that the Wetland Conservation ordinance has been on the books for approximately ten years with an amendment in 1994. No additional amendments or changes have been made. The language before the board is the language that currently exists on the books. The PCC has attempted to elaborate and specify information where necessary and to make modifications that are appropriate and consistent with more recent knowledge and information gathered about the functions of wetlands. This information has been gathered from the State of New Hampshire and from states outside of NH.
Mr. West explained that many other towns have established different setbacks to the buffers around their prime wetlands. The PCC has done a lot of research on a variety of towns but much of the scientific information on specific setbacks comes from the State of New Hampshire. Mr. West feels that the proposed language recognizes the value of each wetland and places the buffer accordingly. There has been much research completed on making these buffers “graduated”.
Mr. Messina added that a significant amount of this language already exists. There have been some major changes to the “stratification approach” to assessing the value of each wetland.
Mr. Gowan stressed that the Planning Board must “think ahead of the curve” relative to wetland buffers. Ms. Harshfield explained that the PCC evaluated the features and functions of what each surface water resource/prime wetland and what it provided to the town.
Ms. Harshfield referred to “Permitted Uses” and noted that it has remained unchanged except for a few minor modifications. Forestry-tree farming has been modified according to the State buffer book and according to RSA 227 – J:9. Agricultural activities have been re-defined according to RSA 21:34 (a). Ms. Harshfield referred to Part D and explained that they have clarified the language by adding “passive” recreational use.
Ms. Harshfield stated that there had been much discussion about locating wells in the buffer zone. It was decided that they should be permitted as long as there is proper protection during construction.
Mr. Farris asked if any of the existing town parks fall under “passive recreation”. Ms. Harshfield stated that Muldoon Park has walking trails. Mr. West explained that the question would be could someone construct a football field in the buffer zone. That would not be considered passive. Mr. Farris requested that the language be clarified with what could be considered passive recreation. Mr. West agreed to do further research on the language and clarify this issue for the board.
Mr. Culbert requested that under “G. Wells” a note be made that appropriate protection measures be taken during the construction process.
Ms. Harshfield referred to “Wetland Buffer” and explained that this section includes all new tables and language.
Mr. Farris asked how the proposed additional buffer would effect a person’s undeveloped land located next to a critical and/or prime wetland. Ms. Harshfield explained that it is possible to secure a map of this situation. The NRPC has not completed an update since 1997. There is a Wetlands Resource map that the board can refer to for the seven prime wetlands and soil types. There is also an overlay of the tax map for this map.
Mr. Farris questioned how much “buildable” land would be taken by the proposed language. Mr. Gowan noted that the buffer is not being excluded from the lot size calculations. Houses may have to be set further back from the wetland. Mr. West agreed that the language might limit the total development potential of a parcel of land in order to protect critical and/or valuable resources. Mr. Farris feels that this also limits the individual homeowner’s ability to develop their lot. He further believes that there is a question of whether the board is taking land versus protecting the resources.
Mr. West stated that he works in many towns across the State of New Hampshire and he has not heard of many lawsuits relative to buffer size and land taking. He noted that there are laws that authorize a town to protect its resources. Mr. Messina stated that the board must look at the “greater good for the community”. These resources have been identified as “critical” resources to our community as a whole and we are attempting to protect them. Mr. Farris does not disagree with this but feels the board must discuss it.
Mr. West reminded the board that the 150 ft. buffer is on only 3.5% of all of the wetlands in the entire town. There are many areas that do not have this buffer.
Ms. Harshfield understands the point relative to the individual homeowner but noted that the purpose and intent of this ordinance is to protect the public health, safety and general welfare. The PCC has outlined at least twelve specific reasons in the purpose and intent about the importance of the functions of the wetlands and the wetlands buffer.
Mr. Culbert requested that the percentage land area of each class be provided. He questioned how much of the requested 150 ft. buffer is actually critical to the treatment of pollutants that will be going into the water. Mr. West stated that if it were only one function that they were trying to protect, an exact figure might be available. They are trying to protect an array of functions of the wetlands with these buffers.
Mr. Farris asked if the buffer were 15 ft. from a house, would the homeowner be able to install a pool. Ms. Harshfield said no, they could not. Mr. West stated that some people are very happy to have conservation land at the back of their property. By constructing the house and structures away from the wetland buffer, you essentially lay the groundwork for protecting the wetland.
Mr. Farris referred to “Additional Provisions” and suggested that the slopes be “up to an additional 75 ft.” depending on the slope of the lot. He feels that this will provide some flexibility. Most slope easements were for a slope over a given percentage of the included distance not as a specific slope. The 12% slope distance would have to exist over 75% of the buffer.
Ms. Deborah Waters, Conservation Commission member, explained that the reasoning for the inclusion of a slope provision came from the State buffer recommendation book. She noted that some towns have additional buffers for slopes. Ms. Waters offered to complete more research on this issue for the board and report back.
Mr. Farris suggested that a “pre-consideration” hearing be held for certain areas that are going to be sensitive. This would allow the Planning Board to be notified in advance and to see the layout. Mr. Gowan explained that site walks are traditionally conducted after a plan has been accepted for consideration. Mr. Culbert stated that the board members could be “invited” to view a site by the applicant under the discussion portion of the agenda. Mr. Farris believes that a “pre-consideration” hearing could be helpful to the board.
Ms. Harshfield referred to “Conditional Use Permits” and explained that Section “A” now states that “termination of a road or cul-de-sac within a wetland buffer is prohibited.”.
Mr. Culbert asked how a temporary (4 month) cul-de-sac would be dealt with. Ms. Harshfield explained that Mr. CaraDonna requested that the word “permanent” be deleted so she would assume that this language would include temporary cul-de-sacs.
Ms. Harshfield referred to Section B and explained that this section deals with conditional use permits and the conditions under which they are granted. The section has been divided into two sections – Submission Requirements and Standards for Granting.
Mr. Culbert stated that the board cannot do anything with a plan until it is accepted for consideration. He feels that the proposed language indicates that the PCC is requesting the plan 30 days prior to acceptance for consideration by the Planning Board. Mr. Culbert worries that the applicant will feel obligated to make changes to the plan prior it being seen by the Planning Board. Ms. Harshfield explained that the Conservation Commission would only “listen” to the presentation of the plan and send an “advisory” letter with recommendations to the Planning Board based on what they have seen.
Mr. Culbert asked for clarification on the Conservation Commission’s role. Ms. Harshfield explained that the Conservation Commission has been charged with protection of the town’s natural resources. Mr. Gowan stated that a favorable letter from the Conservation Commission is necessary for work within the WCD. Ms. Waters added that the State statute allows the Conservation Commission to make recommendations on all of the natural resources in town.
Mr. Culbert referred to #3 under Standards for Granting Conditional Use Permits and questioned the parameters for “feasibility”. Mr. West explained that the PCC would try to determine what is “practicable”. Mr. Culbert requested that the word “feasible” be defined more clearly in the language. Ms. Waters stated that this is a fairly common provision and many towns have it.
Mr. Farris asked for clarification on #6. Ms. Harshfield explained that the Conservation Commission has been very conscious of trying to maintain a reasonable standard for looking at the environmental impact to abutting properties. Mr. Messina explained that the Planning Board is restricted to requesting impact studies within the bounds of the development. He suggested that the board consider having a “town wide drainage analysis” completed for the town. This would allow the board to better understand the “total flow” of water is within the community. Mr. Culbert agreed that an assessment would be helpful. Ms. Waters suggested that this study be done in conjunction with the Master Plan.
Ms. Harshfield referred to “Penalties and Remedies” and explained that this section has been updated according to the RSA’s.
Ms. Harshfield referred to “Special Provisions” and explained that the only change is on commercial septic leachfields. After review by town counsel, it has been determined that the septic must be setback from poorly drained soils with 25 ft. from the WCD and 50 ft. from the buffer. Very poorly drained would require 100 ft and from ponds or year round brooks, the buffer would have to be 125 ft.
Mr. Farris asked for clarification on the “overlay district”. Ms. Waters explained that the statute that sets forth the authority under which you can establish an overlay district. She believes that this language comes directly from the law language. Mr. Farris believes that any “overlay district” must be very specific and well defined.
Mr. David Lynch, Mammoth Road, expressed concern that his father’s farm along with other landowner’s property would be devalued by this proposed ordinance. Mr. Lynch stated that his father originally had enough land to support 50 house lots and now that number has been reduced to 25. He feels that his father has lost a tremendous amount of money because of these ordinances over the years. Mr. Lynch feels that his father has kept this property undeveloped for the good the community.
Mr. Gowan explained that the 50 lots would not be worth the same amount of money that they would be today so the amount of money “lost” is not as great as Mr. Lynch has represented. He further noted that the proposed ordinance has been revised in favor of landowners, specifically the lot size calculation regulation.
Mr. David Hennessey, Dutton Road, explained that land that abuts conservation land is worth more money. Mr. Hennessey stated that protection of the wetlands and conservation land adds to the value of property within the community. He stated that Mr. Lynch may lose some lots but his remaining lots will be worth more.
Mr. Lynch questioned why he and his brother should keep this farm land “open” at such a tremendous cost to them. Ms. Harshfield explained that when this open space is sold to someone else, it is up to the Planning Board and the Conservation Commission to look out for the better interest of the town. She stated that the better interest of the town is to preserve the water supply and open space.
Mr. Lynch stated that with today’s technology, septic systems could become obsolete and negate all of these arguments. Ms. Harshfield stated that the ordinance does not just address sewage, it addresses water runoff, contamination from pesticides, etc.
Mr. Gowan announced that there would probably be at least two more public hearings to discuss this proposed ordinance in depth.
PUBLIC HEARING - Article 2l (Fund for Open Space Purchase)
Ms. Deborah Waters, Conservation Commission, reported that the Board of Selectmen as well as the Budget Committee have “recognized” Article 21 as presented. The “cap” has also been removed and will be 75% of land use change tax. This amount will go into a conservation fund for purchase of open space.
Mr. Culbert asked where this money has gone in the past. Ms. Waters stated that it would go back into the general fund to reduce taxes. Mr. Culbert asked for specific amounts. Ms. Waters stated that in 1997, $36,640 was collected; in 1998, $77,940 and in 1999, $213,840 was collected.
Ms. Waters requested that the Planning Board support this article for the purchase of open space. Mr. Gowan stated that the board could come to a consensus.
Mr. Farris stated that he would recommend the purchase of land if a house can be built on it. He does not believe that the town should be buying large areas of wetland as open space. Mr. Farris stated that $100,000 is a “nice start” but only represents a “deposit” on a parcel of land. He recommended that if a good piece of land becomes available, the town use this money as their deposit and take out a mortgage on the property.
Ms. Waters explained that Article 21 states that the Conservation Commission proposes to set up a conservation fund to be funded by 75% of the land use change tax for the purpose of buying open space.
Mr. Gowan asked for a consensus of the board on Article 21.
Mr. J.R. Gauthier, Tenney Road, explained that for “short money”, the town could purchase the development rights to a parcel of land in order to protect it. Mr. Gauthier stated that when land is taken off the tax rolls, it becomes revenue neutral. He noted that he is an advocate of open space and suggested that incentives be made to the landowners by purchasing development rights. This allows the farmers to continue the agricultural use while protecting the open space.
Mr. Gauthier further noted that the leading cause of water degradation in the State of New Hampshire is salting the roadways. He suggested that a referendum be sought to end salting in town. Mr. Gauthier also suggested that the town purchase road speed indicators for the sanders. Ms. Harshfield does not disagree about the salt. She stated that it would be part of a comprehensive plan to preserve the natural resources. Mr. Gauthier maintains that if you end the use of salt, it would effect all landowners, large and small. Land would not be taken away from the landowner in the process.
Ms. Harshfield requested that the Planning Board support the setting aside of open space land if the Conservation Commission receives a positive vote on the conservation fund.
Mr. Culbert supports the concept, not the wording.
It was the consensus of the board to support the town setting aside funds for the purchase of conservation land and open space.
Ms. Alicia Harshfield, Conservation Commission member, requested that the Planning Board recommend Little Island Pond Wetland, St. Patrick’s Convent School Wetland, Sherburne Road Bog and Open Water Wetland as prime wetlands as they meet all criteria set forth in the New Hampshire Code of Administrative Rules WT 700 for prime status.
MOTION: (Farris/Culbert) To recommend Little Island Pond Wetland as a prime wetland. This wetland meets all criteria set forth in N.H. Code of Administrative Rules WT 700 for prime status.
VOTE: 5 – 0 – 0 The motion carries.
MOTION: (Culbert/Farris) To recommend St. Patrick’s Convent School Wetland as a prime wetland. This wetland meets all criteria set forth in N.H. Code of Administrative Rules WT 700 for prime status.
VOTE: 5 – 0 – 0 The motion carries.
MOTION: (Culbert/Danevich) To recommend Sherburne Road Bog as a prime wetland. This wetland meets all criteria set forth in N.H. Code of Administrative Rules WT 700 for prime status.
VOTE: 5 – 0 – 0 The motion carries.
MOTION: (DeLuca/Danevich) To recommend Open Water Wetland as a prime wetland. This wetland meets all criteria set forth in N.H. Code of Administrative Rules WT 700 for prime status.
VOTE: 5 – 0 – 0 The motion carries.
A site walk was tentatively scheduled for Saturday, January 29th at 7:00 am for the following parcel:
December 20, 1999
MOTION: (Farris/Danevich) To accept the minutes of the December 20, 1999 board meeting as read.
VOTE: 5 – 0 – 0 The motion carries.
MOTION: (Culbert/Danevich) To accept the minutes of the January 3, 2000 board meeting as read.
VOTE: 5 – 0 – 0 The motion carries.
MOTION: (Culbert/Farris) To adjourn the meeting.
VOTE: 5 – 0 – 0 The motion carries.
The meeting was adjourned at 11:00 pm.
Susan J. Tesch