PLANNING BOARD WORK SESSION
The Chairman, Victor Danevich called the meeting to order at .
The Secretary, Mr. Bill Scanzani, called the roll:
Victor Danevich, Paddy Culbert, Bill Scanzani, Henry DeLuca, Gael Ouellette, Alternate Bob Yarmo, Planning Director Amy Alexander
Peter McNamara, Alternate Robin Bousa, Alternate Raymond Brunelle, Selectmen’s Representative Hal Lynde
Mr. Danevich informed that Mr. Yarmo would vote in Mr. McNamara’s absence.
Ms. Alexander said that her research showed consistent
forward movement with
Mr. Danevich reviewed the Board’s minutes from
Mr. Scanzani said the other issue on Mr. Fraize’s property was the height of the culvert and the area around needed to be cleared so that the water could properly flow. Mr. Culbert said that one of the concerns was that the ‘fix’ to be instituted would cause water to flow onto Mr. Mahoney’s property. Mr. Danevich said that the Board’s decision to revoke the bond had been appealed. Ms. Alexander said she was working diligently to resolve the issues and was informed by Attorney Gorrow that there was no pending litigation regarding this subdivision. She gave a summarized history to the best of her knowledge and said that CLD had drafted a punch list in May, 2002 of outstanding items. She said that most of the items had been addressed.
Mr. Scanzani reiterated that his concern was the water
drainage onto Mr. Fraize’s property. Ms.
Alexander said that the culvert grading issue was currently being
addressed. She said the initial
recommendation was to dig a drainage swale and place a culvert underneath
Mr. Danevich discussed the separation of
Mr. Peter Zohdi, Herbert Associates agreed with Ms. Alexander that the drainage could be resolved on the road with minimum work, approximately 5-6 hours of back hoe work. Mr. Scanzani recalled that back hoe work would need to be done on Mr. Fraize’s property to channel the water to properly drain to the culvert. Ms. Alexander said that she received a permission slip to perform the work. Mr. Zohdi said that his client had advised him against discussing the case, since the issue would be heard in the Superior Court. However, he informed that the subdivision had nothing to do with the water problem that exists on Mr. Fraize’s property. He said that Mr. Fraize had always had a water problem. It was Mr. Zohdi’s belief that grading on the existing road (ditch line) that the water would go to the cross culvert and go across. Mr. Scanzani confirmed that no additional water would go onto Mr. Fraize’s property. Ms. Alexander said that after a discussion, earlier in the afternoon, it was decided that the intent would be to direct any additional water to the catch basin (approximately 150ft. from Mr. Fraize’s property).
There was a brief discussion regarding the site and the current problems with the drainage. Mr. Zohdi said he could provide an aerial photo from 1982 that showed a wood road. He reiterated that the subdivision did not add to Mr. Fraize’s water problem. Ms. Alexander requested additional time to resolve the drainage issue.
Mr. Danevich believed that the recommendation to accept
Mr. Culbert asked when the bond would expire. Ms. Alexander said that the bond was cash and therefore did not have an expiration date.
(Scanzani/Culbert) To reconsider and hold off revoking the bond, based upon the progress made and recommendation from Town Counsel, subject to coming to a resolution that solves the drainage problem.
(6 - 0 - 0) The motion carries.
Mr. Don Nicolls, K.L.N. Construction Company, Inc. met with the Board to discuss a letter he sent dated December 9, 2002 to Selectmen Greg Farris and Planning Board Chair Victor Danevich, which referenced a discussion at the December 2, 2002 Planning Board meeting, to which he was not present. He said that he was surprised at the statements made by Ms. Alexander regarding K.L.N. Construction.
Mr. Nicolls reviewed the statements made by Ms. Alexander that he had issue with:
1) pre-construction meeting - a meeting was held with the following people present - former Planning Director Dave Brouillet, Peter Zohdi of Herbert Associates, Tom Ryan of the Pelham Fire Department, Site contractor Tim Zelonis and Don Nicolls of K.L.N. Construction. CLD representative was late for the meeting, but did show on site. The exact date of the meeting was not known, but was held during 2002. Mr. Danevich confirmed with Mr. Zohdi that he was in attendance. Mr. Zohdi answered yes.
2) Rome Avenue elevation change - Ms. Alexander lead the Board to believe that the road changed (without any review) and was moved 5ft, which did not happen. He said there was an elevation change, which was reviewed by Mr. Brouillet, Herbert Associates and Mr. Zelonis prior to any work being performed. Mr. Danevich asked for further explanation of what type of change occurred. Mr. Nicolls said that the cul-de-sac had been raised. Mr. Tim Zelonis, Site Contractor said that Mr. Brouillet and Herbert Associates office had been contacted due to the excessive ledge. He said he suggested elevating the road. He showed a report that had been submitted to the Planning Department for Board’s approval. He also provided a plan that showed the elevation change, before and after. Mr. Danevich said that if there was a significant material change on a plan, it was consistently brought back before the Board, recognizing the fact that there are some field changes that are acceptable. He said the Board routinely deferred to an engineering firm to make the decision if a plan needed to come back for review. He asked if a review of the plan had been done so that the Board could gain an understanding of the material change. Ms. Alexander said that she had not requested TF Moran to review the plan yet.
Mr. Alexander apologized if Mr. Nicolls felt she was ‘picking’ on him. She said that her understanding of the project was based on the information contained in the file. She said there was no approval documented in the file. She said that the catch basin had not been cored correctly, but out of fairness, because it had not been caught earlier and it was already installed, she allowed it to be bricked up and mortared in. Mr. Danevich noted that the applicant filed a plan for the proposed change and it was inconclusive on the Planning Department’s part whether or not it had been addressed.
Mr. Nicolls continued review of the letter he submitted: 3) comment made regarding Mr. Zelonis - Mr. Nicolls said that Ms. Alexander’s statement regarding the regulations not being followed because Mr. Zelonis was the Site Contractor, was blatantly incorrect.
4) Ms. Alexander said that Mr. Nicolls refused to put in a
cul-de-sac. Mr. Nicolls said that he had
never discussed the cul-de-sac with Ms. Alexander. He said that because
Ms. Alexander requested that the Board inform her of any discussions, or recollections of issues involving plans being reviewed. Mr. Scanzani understood the filing constraints of the Planning Department and suggested that the meeting minutes be reviewed for Planning Board actions.
Mr. Nicolls reviewed the remaining two issues stated in his letter:
5) plans - Mr. Nicolls said he offered Ms. Alexander plans, which she refused and said she would obtain a copy from CLD. Ms. Alexander said that the Planning Department did not have a complete set of the signed plans for the whole subdivision because it was being recorded in phases. Mr. Zohdi discussed the customary process for when plans were signed and recorded. He discussed the phases and said that phase I and II had been signed by Mr. Danevich and Mr. Scanzani. Mr. Zohdi provided Ms. Alexander with a complete set of the plans.
6) escrow accounts - Mr. Nicolls said that he had never had a discussion with Ms. Alexander regarding escrow accounts. He discussed the invoices received in the past and what had been paid. It appeared that the Planning Department had incorrectly billed K.L.N., but had resolved the issue. He said there was still a question as to where $3000 of his escrow money had been spent. He said that he received a letter from Ms. Alexander after the December 2nd Board meeting requesting $20,000 until the year-end. He discussed the billing discrepancies from the past and believed that the $20,000 was a carry-over of an incorrect amount. Therefore, Mr. Nicolls submitted a check for $5000 and noted that as invoices were received, he would place more money in escrow. Mr. Danevich noted that Mr. Nicolls provided backup data, copies of checks and letters from the Town. Ms. Alexander said that the Planning Assistant had provided a timeline of all monies billed. She discussed invoices yet to be forwarded to Mr. Nicolls, which would place him in the negative for his account. She explained that the $20,000 requested was to move forward and place a good-faith escrow in place. She said the amount had been determined from a letter sent by Mr. Brouillet in June, 2002. Mr. Culbert believed that when an escrow was requested from a developer, the Town should have the figures to back it up.
Mr. Nicolls summarized that Ms. Alexander’s comments during
Mr. Danevich said that the Town required escrow accounts and noted that progress had been made for better tracking. He felt that Mr. Nicolls was correct in requesting proper documentation, but wanted acknowledgement to have on file, proper escrow amounts as long as backup documentation was in the file. Mr. Scanzani suggested a meeting to discuss the outstanding issues, so that an escrow could be set up with a comprehensive amount.
Mr. Danevich reviewed Mr. Nicolls letter: 1) The Board was satisfied that the pre-construction meeting had taken place; 2) elevation change was pending. He reserved the opportunity for the Board to review for material change once an engineering firm has reviewed; 3) comments accepted; 4) agreement to install a temporary gravel base, in compliance with the Fire Chief’s request, and will also keep it clear of snow and ice; 5) temporary set of plans has been supplied, a full set will be supplied within a week; 6) an agreement has also been met regarding escrow accounts.
Mr. Culbert commented that he had seen the work Mr. Nicolls had done in the Town and in his opinion was outstanding.
Mr. Scanzani asked if there was anything else the Board
should be aware of regarding the development that should be addressed. Ms. Alexander said in the report from the
review engineer it was required to do an as-built on the gravel before
paving. She had backup documentation
that the engineer had made the request, but was informed that paving would
occur regardless. She said that paving
occurred when the temperature was twenty-eight degrees (paving should not occur
when temps are less than forty degrees).
Mr. Zelonis informed that since he had begun the subdivision, there had
been at least six inspectors. He said
Mr. Zelonis informed the Board that the paving was not done at twenty-eight degrees and showed the Board the backup documentation. He noted that there were roads throughout the Town that were paved with binder less than forty degrees.
Mr. Scanzani was concerned that there had been six different inspectors working on the subdivision.
Ms. Alexander wanted to know if TF Moran should review the road change, or if the Board wanted to move forward with the assumption that it had previously been reviewed and accepted by the former Planning Director (Dave Brouillet). Mr. Zohdi asked for the opportunity to discuss the issue with Ms. Alexander. He said the road had not changed, except a couple of the grades. He said the catch basins had not moved. Mr. Danevich preferred to continue with the consistent approach, which was any material change should be reviewed by an engineering firm and provide consult to the Chair, Vice Chair and Secretary of the Board, who would in turn determine if the Board should review further. Ms. Alexander said that there was no money in escrow to pay for the engineering firm’s review. Mr. Culbert said that he would contact Mr. Brouillet and find out if the plan was approved. Mr. Danevich said if Mr. Brouillet was unclear, then the plan would be sent out for review.
DISCUSSION WITH ATTORNEY JOHN RATTIGAN
At the Board’s request, Mr. Danevich said that he asked Attorney John Rattigan to meet with the Board to specifically discuss RSA 673:16 (staff and finances). He said the Board was seeking resolution regarding legal counsel, hiring/bidding out for engineering services.
Attorney Rattigan reviewed RSA 673:16 and discussed his understanding with the Board. He said the Board may contract with planners, engineers, architects, and other consultants for services required. He said the funds for those services would have to be within the approved budget, as well as any reimbursements or contributions received by developers. He said certain functions (i.e. Master Plan update or CIP) may not be supported by such funds. He discussed the acceptance and use of gifts, grants and contributions, which may have their own procedures to be followed.
Attorney Rattigan summarized by saying that the RSA granted the Board the authority to select and hire its own engineer, planner and other consultants for work. He said the authority was not granted at Town meeting or through the Board of Selectmen.
Mr. Scanzani understood that the Board had the right to set the fee structure for applications. He discussed using certain monies for defending the Board’s position and wanted to know if his assumption was correct. Attorney Rattigan said that document review was clearly covered. Mr. Danevich said one of the common questions the Board requested legal counsel on was the applicability of the premature development clause, which was usually case specific. Attorney Rattigan said that RSA 673:16 II discussed how the Board could recover expenses from the applicant. He was unsure if premature development questions would be covered under RSA 673:16 II. Mr. Culbert didn’t understand why the Board didn’t charge developers for plan specific questions. Attorney Rattigan said that a lot of towns charged developers for plan specific questions. However, he didn’t feel that appeals could be covered within the fees. Mr. Danevich said that a majority of legal advice was regarding the statutes so the Board could come to the right decision. Attorney Rattigan said RSA 673:16 it could be argued either way, but believed the practice was that the fees were being assessed, and legal counsel was being used as administrative assistance to boards for plan review.
Mr. Danevich said that in the past the Town had contracted with an engineering firm to perform two tasks: 1) as part of application, provide detailed review, and 2) perform outside inspections. He asked if the two functions should be separated and how it would be funded since historically it was not appropriated. Attorney Rattigan said that there were a variety of ways to approach the funding. Mr. Danevich wanted to know if the work done up front was viewed as consulting (in compliance with RSA 673:16), or as through another agent. Attorney Rattigan said that the Board had the authority to retain someone as well as decide if the functions are going to be separated. He suggested surveying towns that were similar in size (i.e. Hudson, Epping, Seabrook).
Mr. DeLuca was in favor of separating the functions and having more than one firm.
There was a brief discussion about how issues were handled. Mr. Scanzani believed that the fees should be brought in line with the escrows. He discussed what the Board should do to ensure that a subdivision didn’t have a negative impact on taxes. Attorney Rattigan discussed the importance of planning and good zoning regulations, in connection with maintaining a good tax rate.
Mr. Danevich confirmed with Attorney Rattigan that his belief was that the Planning Board worked with the engineering firm to review the plan and make the selection. Mr. Culbert said that the word ‘may’ was contained within the language of RSA 673:16 and went on to provide the definition, which was ‘have the ability to’ or ‘have the permission to’.
Mr. Danevich asked Ms. Alexander if she had a final copy of Mr. John Bobula’s report. Ms. Alexander said the last copy she received was from months ago.
Ms. Alexander handed out copies of the Requirements of Testing Report Data (which was a national standard), 2) Pre-construction meeting process. She asked that the Board review and provide comments.
Mr. Danevich informed that the Board of Selectmen would like to meet with the Planning Board in January. There was a consensus of the Board to meet with the Selectmen, the date will be determined.
A motion was made and seconded to adjourn the meeting.
The motion was adjourned at approximately
Charity A. L. Willis