PB Minutes 5-17-04

APPROVED

TOWN OF PELHAM

PLANNING BOARD MEETING

May 17, 2004

The Chairman, Paddy Culbe= rt called the meeting to order at 7:30 pm.

The Secretary, Gael Ouell= ette, called the roll:

PRESENT:

Paddy Culbert, Peter Mc= Namara, Bill Scanzani, Henry DeLuca, Gael Ouellette, Robin Bousa, Alternate Bob Yarmo, Selectmen Representative Victor Danevich, Planning Director Will D’Andrea

ABSENT:

Selectmen Representativ= e Victor Danevich, Alternate Raymond Brunelle

ADMINISTRATIVE

Map 40 Lot 6-185 – Thom= as Mahoney – Irene Driv= e – Request for Bond Release

Mr. Mike Demers represent= ing Mr. Thomas Mahoney discussed the bond release request with the Board. He said Irene Drive Extension (along with other roads) had been = accepted at the 2003 Town Meeting. Hav= ing been accepted, it was the applicant’s position that the Planning Board requirements had been met and the bond money should be released.

Mr. D’Andrea unders= tood that the road had been accepted and was placed on the ballot with reservation. He said there was still an outstanding issue with the guardrail design (bolt system) and was unable to find documentation that it had been resolved. At this point, without documentati= on that the guardrail issue had been resolved, Mr. D’Andrea was unable to recommend the release of the bond. Mr. Culbert recalled initially there were approximately seven issues that needed resolution. Mr. D’Andrea said those issues were under a separate bond.

Mr. Scanzani asked if the guardrail had been installed. Mr. D’Andrea said the guardrails were installed, but the way in which they were mounted and bolted was in question.&n= bsp; Mr. Scanzani suggested that the original inspector (former Town engi= neer TFMoran) review to ensure that the guardrails had been installed per the specifications and forward a letter to Planning indicating such.

Mr. Culbert said a letter= would be needed from the engineering firm stating that guardrails were properly installed. Once a letter is received the Board will readdress the bond release request.

Mr. Demers said it was the applicant’s position that any inspections should have already taken p= lace as part of the road acceptance and certification by the Planning Board that= it was ready to be place on the 2003 Warrant Article. He reiterated that the road had be= en accepted by the Town per the 2003 Town Meeting.&nbs= p; Mr. Culbert said the Town had employee changes and a letter was not contained in the file. Ms. Ouellette recalled that the Board made an agreement with the applicant that= the guardrail installation would be confirmed, rather than holding the road for acceptance in a subsequent year. She said the Board was assured if the guardrail installation was incorrect, it would be corrected by the applicant immediately. Mr. Scanzani said it was up to the applicant to certify to the Board that the guardrails were properly installed. Mr. Culbert said T= FMoran would be contacted to find out if they had inspected the guardrails; if not= , he said they would inspect. If t= he guardrails are not installed correctly, the applicant is responsible for correction.

NEW BUSINESS

Map 36 Lot 10-110 – Woo= dview Development – Garlan= d Drive – 2-Lot Subdivision for consideration

Mr. DeLuca recused himsel= f from the discussion because he was noticed as an abutter to the proposed subdivi= sion.

Ms. Ouellette read the li= st of abutters aloud. There were no persons present who did not have their name r= ead, or who had a problem with notification. The file did not contain any written correspondence from abutters.

Mr. Matt Hamor of Meisner= /Brem Corporation, representing Woodview Development, met with the Board to discu= ss the proposed subdivision. He = showed a plan which depicted the remaining lot from a subdivision that had previou= sly been approved by the Board. H= e said the applicant was proposing to subdivide the one lot into two lots. He said part of the Notice of Deci= sion from the New Hampshire court was this still needed to go to the Planning Board approval process for any further subdivision. He reviewed the plan and the proposed house and driveway locations. He noted that part of the stipulat= ion to the court’s decision was that a fifty-foot no-cut zone be retained; t= here was also, per the previous Planning Board’s decision, a one-hundred f= oot no-cut zone from the rear of the lot line.= He indicated that the proposed plan included both no-cut zones (as stipulated) and said no work contained in the proposed plan would occur in = the no-cut zones. Mr. Hamor said = the septic designs had been prepared and approved by the Board of Health. He also noted that they had receiv= ed the state subdivision approval.

Ms. Ouellette asked if th= ere was any change in the proposed design from the original plan looked at and first approved by the Board. She as= ked that the changes be pointed out to the Board. Mr. Hamor said the main change was= the disturbance that further encroached into the fifty-foot no-cut area; the driveway remai= ned the same. He said during the original subdivision process, the house and driveway location may have been conceptual, but were now shown per the approved septic design. Ms. Ouellette asked if there were = any changes, other than the house placement and subdivision request. Mr. Hamor said the only substantial change to the plan was the fifty-foot no-cut zone.

PUBLIC INPUT

Mr. Henry DeLuca, 16 Garland Drive (speaking as an abutter) asked that some of the project items be completed before any additional work was done. He said due to the crown being taken out of the road, the drainage in the area had changed. The wat= er from his lot was draining into his neighbor’s driveway across the street. Mr. DeLuca noted beca= use the road height had been decreased by approximately two–three feet, a= utility pole now had a dirt mound around it (only about a foot from the pavement) t= hat would not grow anything. He a= sked that the pole be addressed. H= e then discussed the lawns of the surrounding lots that had been altered due to the lowering of the road. He said= there wasn’t enough loam replaced onto the lots and said the areas were sun= ken and yellowed. Mr. DeLuca noted there were drainage problems during the winter at both intersections of Garland Drive and Appleleaf Road as well as at Appleleaf Road<= /st1:address> and Dutton Road. He then addressed the proposed subdivision and said the proposed driveway should be reviewed because it appeared to be too close to the Garland Drive and Birch Lane intersection. Mr. DeLuca ended by requesting tha= t work be done in a timely manner, unlike the work done when the road was lowered.

Ms. Lois Landry, 19 Garland Drive, questioned the lawsuit settlement, which she believed both parties (applica= nt and Town) had agreed to. She understood that the Town gave up the two lots from being open space for a w= ildlife corridor for an agreement with the applicant that the two lots would be combined into one lot. She didn’t understand why the applicant was requesting a two-lot subdivis= ion since they agreed to the court settlement defining it as one lot.

Mr. Andrew Landry, 19 Garland Drive, opposed the proposed subdivision. He = felt the Board should review the homes in the new development. He didn’t believe the homes = had been built with quality based upon their exterior appearance.

Mr. Scanzani noted in Mar= ch, 2002 that the Board had deliberated, in detail, regarding the developments in the area to try to tie environmental issues (i.e. buffers) together. At that time, the Board specifical= ly addressed the two lots currently being presented and agreed that they neede= d to stay open for wildlife. He sa= id the former Selectmen Representative was concerned with a 30-lot subdivision containing no open space. Mr. Scanzani said the two lots being proposed was supposed to be open space, and was set as a condition of approval for the subdivision. At that time, the applicant agreed= to the condition of approval; the subdivision plan was presented to the Planni= ng Department, and signed by the Planning Board Secretary and the Chairman bec= ause it met the approvals and conditions of the Planning Board. After which, bonds were posted and= the roadwork on the development started to occur. The applicant then decided they didn’t like the conditions of approval from the Planning Board, and s= ued the Town and Planning Board to get the lot as a buildable lot. It went to court, and under the Co= nsent Decree as a stipulation for settlement, the proposed lot was to consist of = one lot and locate the wildlife corridor on such. Mr. Scanzani pointed out that the = court decree recognized the environmental sensitivity of the lot and therefore to place a house on the lot it would have to come before the Board as ‘s= ite specific’ and ensure that all the conditions placed on the plan could= be met. Mr. Scanzani said the pr= oposed plan did not meet the consent decree of the court. He questioned if the plan should b= e accepted for consideration and denied; or if it should be denied without acceptance.

Mr. D’Andrea sugges= ted that the Board accept the plan for consideration and take jurisdiction because it met the criteria for acceptance. He said the Board should then deny the plan based upon the fact that there wer= e no significant changes from the original layout and plan from when the Board originally conditioned it to be a single lot; as well as the plan not being= in compliance with the court agreement, and finally due to specific subdivision regulations not being in compliance.

Mr. Yarmo made a motion t= o accept the plan for consideration. I= t was noted that Mr. Yarmo had not been appointed as a voting member; therefore, = Ms. Ouellette made the motion to accept the plan for consideration.

MOTION:

(Ouellette/Scanzani) To= accept the plan for consideration.

VOTE:

(5-0-= 0) The motion carried.

Mr. Scanzani made a motio= n to deny the plan. Mr. D’An= drea suggested citing specific subdivision regulations and provided an example of such. Mr. Scanzani amended his motion; Mr. McNamara seconded the motion.&= nbsp;

MOTION:

(Scanzani/McNamara) To = deny the plan subject to the fact that it does not meet the consent decree of the court, and that subdivision regulations are not met (such as 11.04,C -15,000SF area not being shown; 11.04,C,7 - creating a lot that requires a driveway to cross the WCD, 11.11,C,2 – requires a 4,000SF area to contain test pits for lot 1; as well as others); nor does it meet the Pla= nning Board’s intention of maintaining open space, a wildlife corridor an= d sensitive issues of the parcel (parcel A).

VOTE:

(5-0-= 0) The motion carried.

Mr. DeLuca returned to th= e Board.

Map 2 Lot 5-75 – Keyes Hill Road Realty= Trust – Keyes Hill Road – 6-Lot Subdivision for consideration

Mr. Mike Gospodarek, Herb= ert Associates representing the applicant, presented the proposed plan to the Board. He said the Board had previously approved the proposed subdivision approximately seven, or eight months ago; per the regulations, there is a six-month deadline to meet the stipulations of approval, which the applicant was now ready to meet. He requested that the Board approv= e the plan exactly in the same context as originally done. He ended by requesting the Board to waive the Planning Board fees.

Mr. Scanzani asked if the= plan was exact to the one previously presented.= Mr. Gospodarek said the plan was virtually exact, except for some of= the TFMoran (former Town engineer) comments addressed. Mr. Scanzani discussed some of the stipulations previously added to the plan (i.e. NHDES approval numbers; par= cel A donation to the Town; discussion with state regarding small strip of land= ) . Mr. Gospodarek said the Town Administrator had been contacted regarding the donation of parcel A. He said a plan set that addressed = basically all the review comments had been submitted to the Planning Department in the past week. Mr. Scanzani said = the road had been shifted in order to protect a key wetland area containing a l= arge tree and wanted to know if the current plan reflected such. Mr. Yarmo recalled that the tree w= as to be located and noted on the plan so the wetland could be preserved. Mr. Gospodarek said they had diffi= culty locating the tree and had previously requested that a Board member help tar= get the tree. Mr. Scanzani said he would be able to locate the tree.

Mr. D’Andrea recomm= ended re-approving the plan with the same conditions as noted in his memo to the Board specifically the timing of acceptance by the Selectmen and state land= to be resolved.

MOTION:

(Scanzani/McNamara) To = accept the plan for consideration.

VOTE:

(6-0-= 0) The motion carried.

-------------------------= ---------------------------------------

MOTION:

(Scanzani/McNamara) To = approve the plan subject to the same conditions as outlined on the original plan; condition #2 acceptance of the triangle land by the Selectmen to be done after the subdivision is recorded; condition #3 state land to be resolved= is the state land that abuts Keyes Hill Road that needs to be crossed in ord= er to get from Keyes Hill Road to Parkside Drive.

VOTE:

(6-0-= 0) The motion carried.

-------------------------= --------------------------------------

MOTION:

(Scanzani/McNamara) To = accept for consideration, the waiver for the fees (per Section 9.02,A,2,4,5) as = this was a reconsideration of an existing plan.

VOTE:

(6-0-= 0) The motion carried.

-------------------------= ---------------------------------------

MOTION:

(Scanzani/McNamara) To = approve the waiver for the fees (per Section 9.02,A,2,4,5) as this was a reconsid= eration of an existing plan.

VOTE:

(6-0-= 0) The motion carried.

OLD BUSINESS

Map 30 Lot 11-93 – Cormier & Saurman Building, LLC = 211; Dutton Road – Proposed Elderly Complex for Site Plan Review and Seeki= ng Special Permit for Wetland Crossing for continued consideration =

Ms. Ouellette recused her= self.

Mr. Culbert informed that= due to the plan previously being before the Board, he said the only issue to be discussed will be relative to the environmental issues.

Attorney Paul DeCarolis, representing the applicant, informed that a meeting was held with the applicant, Mr. D’Andrea, Town engineer and Mr. Jim Gove of Gove Environmental to discuss environmental issues. A letter summarizing the meeting w= as issued February = 23, 2004 and it was agreed by the applicant to incorporate those items as part of the conditions for Planning Board approval.&nb= sp;

Mr. Scanzani said one rea= son the application had been delayed was because it had gone to the Board of Adjustment, where the decision was made regarding verification of the impairment of water under Special Permit provision (307-40,B). He asked if the development unduly restricted the flow of water. Mr. Gospodarek said the intention of the plan was not to restrict the flow.

Mr. James Gove of Gove Environmental introduced himself in the event there were any questions.

Mr. Gospodarek said one c= omment of TFMoran (former Town engineer) was regarding the culvert, which was sized for a fifty-year storm event. He said it was also sized so that the water would not back up onto Smith Road.= He said the current drainage patte= rns would exist when the project was complete.= Mr. Scanzani wanted to ensure, per the requirements of the Board of Adjustment case, that the applicant show that the water flow would not be i= mpeded. He asked Mr. Gove could certify fr= om his experience, if the applicant had met the condition. Mr. Gove answered yes. He said under number seven of the = items discussed (per the memo of February 23, 2004) there was a question regarding the design of the drai= nage swale and if there was a culvert along the roadway and if the detention facility could be smaller. Mr= . Gove said they went back to the site and said there wasn’t a culvert, so t= he detention facilities and swales should be as large as they need to be and ensure that they provide the correct amount of off-site flow that is curren= tly there and would be maintained in the future.

Mr. Scanzani asked for clarification regarding the wooded species being planted in the drainage swale. Mr. Gove said because = there would be clean drainage into the swale, the only thing needed would be to maintain the volume. He said = Mr. Craig Wood of Louis-Berger recommended there was as much buffering as possi= ble and said he wanted to see woody species.&n= bsp; He discussed the species that would be planted and noted they wouldn’t get very tall (maximum 6ft.). He said the form of the drainage s= wale would remain the same, but would provide a woody buffer to the area.

Mr. McNamara said there h= ad been discussions (during the February 2, 2004 Board meeting) regarding potential vernal pools and wan= ted to know if the site had been reviewed in March or April for such. Mr. Gove answered no. He said their expectation was that= there were vernal pools.

Mr. Culbert asked for an = explanation of ‘mulch berm’. = Mr. Gove said a mulch berm was to be utilized in place of a silt fence. His experience was that silt fence= s had a lot of issues (i.e. sediment) and required maintenance. He recommended for a number of pro= jects that mulch berms should be used, and could effectively handle storm water.<= span style=3D'mso-spacerun:yes'>

Mr. Scanzani wanted to kn= ow how to ensure enforcement of not using chemical lawn treatments and products associated with de-icing the roadway. Mr. Gove said he and Mr. Wood felt the recommendations could be incl= uded in the condo documentation and be a requirement from the start. Mr. Culbert noted that the proposed building was not a condominium. Attorney DeCarolis said in the past, provision enforcement was done = by the developer entering into a Development Agreement with the Town which lis= ts all the obligations. The docu= ment would be recorded at the Registry of Deeds with the plan.

Mr. McNamara asked how ma= ny single-family homes would be able to fit on the property. Mr. Peter Zohdi of Herbert Associa= tes said based upon the high and dry calculations it was assumed that the parcel could accommodate four or five lots.

PUBLIC INPUT

Attorney DeCarolis believ= ed that the public debate was closed at the last meeting. Mr. Culbert said public comment was closed to everything, except for new environmental issues.

Ms. Shirley Wakefield, 38 South Shore Drive, spokesperson for the Little Island Pond Watershed Association, presented a series of photographs that were taken from the road on April 15^,2004 (= day after rainstorm) and A= pril 17^,2004 (three days after the rainstorm). She said the restriction of the fl= ow of water was not the issue, it was the amount of water to be displaced. She discussed the current terrain = and belief that the displaced water would end up in people’s yards, crawl spaces, basements, streams and culverts.&n= bsp; She explained the current drainage which traveled northeast. Ms. Wakefield said she had counted= four large pools, which were not correctly represented on the map. She referenced the December 30, 2003 from Loui= s-Berger to Mr. D’Andrea which discussed two cellar holes on the property fron= ting Dutton Road that may yield historic information regarding early occupation = of the property; these features should be retained, or if impacted should be investigated for their historic significance. The letter also referenced a narro= w band of vegetated wetland occurring at station 9+00 connecting the two wetlands = flagged on either side of the road as well as wetlands bordering the west side of S= mith Road that were not shown on the plan; if shown, the project would likely ha= ve additional encroachment on the WCD. Ms. Wakefiled continued her review of the Louis-Berger letter which = in conclusion concurred with the Environmental Impact Assessment that the development would have a detrimental impact on the current open space, due = to further fragmentation. She sa= id where the driveway meets the roadway there was a drain that went under the = road and came out of a culvert. She reviewed the plan and explained the drainage flow, which flowed northeast; = she didn’t feel that the water flow would be able to be restricted. She then reviewed the photographs brought in to back her testimony. The photographs showed the drainage, pipes and the pools of retained water. Ms. Wakefield said she opposed the= development of the property. She said the= re was a possibility to build one home at the top of the property only, if homes w= ere being built rather than elderly housing.&n= bsp; She felt the development would be detrimental to the forty-two famil= ies that lived below.

Attorney Michael Donovan, representing the Little Island Pond Watershed Association, Trustees of the Smith Trust and the Trustees of the Little Island Pond Road Fund asked if t= he applicant had convinced the Board that there were no drainage problems on t= he lot. He said there had been t= hree engineering reviews of the drainage by TFMoran (former Town engineer) with = the last being dated = September 4, 2003; there were several drainage questions that had not been answered. Attorney Donovan fe= lt the following items still needed to be reviewed and were relevant: 1)favorable written comments and review by the Conservation Commission; 2) letter of concern from LCHP that the approval of the project would negate the investm= ent into the watershed located immediately downstream; 3) concerns contained in Louis-Berger letter; 4) Ben Frost review of October 6, 2003 driveway parking could be done to minimize impacts; 5) edges of every building are on the ed= ges of the WCD; 6) vernal pool investigation still to be done; 7) applicant has= not met the burden of establishing that the project wouldn’t be construct= ed to minimize the impact on the wetlands, or protect the wetlands as the zoni= ng ordinance requires; 8) the conditions in Zoning Ordinance 307-40 Special Pe= rmit must be met; Attorney Donovan said per RSA 676-12 governs the zoning regulations in affect when this application was accepted for review by the Board. He pointed out when pr= eparing for the Zoning Board of Adjustment appeal, that the Board had applied the three-times building height setback requirements in November, 2001, for Pel= ham Terrace.

Attorney DeCarolis said t= he argument being made was previously brought up during the motion to rehear t= hat was before the Zoning Board of Adjustment.= Attorney Donovan felt it should be known that in November 2001 the B= oard applied the Zoning Ordinance how he requested the Board to apply it in Apri= l, 2003. He ended by saying he f= elt the Board erred by not letting Mr. Yarmo (an alternate) vote. He said it was an arbitrary rule to limit the Board to five regular members.

Mr. Kevin Gervais, 21 South Shore Drive, said the Board postponed a meeting February, 2004 so the information could = be obtained about the vernal pools. He said no one had gone to the site in March or April to review. Ms. Bousa said the February meetin= g was not postponed because of vernal pools.&nbs= p;

Mr. Gove began by address= ing the question of if the wetland boundary had been correctly identified. He said the wetland boundary had b= een reviewed during the growing season not only by Gove Environmental but also = by Mark West; both agreed regarding the site; it was believed by Mr. Gove that= the amount of wetland had been reduced. He said Louis-Berger had written a letter in the winter and said that Mr. Craig Wood had agreed verbally that in fact because Mark West had revie= wed the site during growing season that the wetland boundary was deemed to be accurate. He addressed the vernal pools and said that they had taken the wo= rst case scenario in their environmental assessment. He said if they had done investiga= tions they would not have been in the position of increasing the vernal pools. He said the no-disturbance areas p= laced on the plans had extended beyond the 50-feet in some areas. He said any investigation in March= would have been to decrease vernal pools, not increase. He discussed the items contained i= n a memorandum dated February 23, 2004 which were recommendations by Mr. Craig Wood (Louis-Berger) and agreed to by Gove Environmental which included : 1) clearing limit= ed and shown on the plan; 2) prior to tree clearing the location of the mulch berm/orange construction fence be placed at the limit of grading and clearly identified in the field; 3) large white oak tree identified and saved where possible; 4) location of both the limit of clearing and identification of o= aks will be reviewed in-field by a consultant and the code enforcement officer prior to any clearing; 5) planting of wooded species in the drainage swales= is identified as a measure to help protect the vernal pools. Mr. Gove said they had taken the attitude that the vernal pool do exist as vernal pools, which was taken into account in the Environmental Impact Assessment.

Mr. Gospodarek said the d= rainage areas were accurately depicted by Ms. Wakefield’s review. He pointed out that December 31, 2003 TFMoran pe= rformed a review where nine items to address which weren’t related to drainage. He provided the Boa= rd with a second peer review which was from the permit issued by the Departmen= t of Environmental Services for the project.&nb= sp;

Mr. Scanzani understood t= he abutter’s concern regarding downhill drainage and asked for an overvi= ew of the pre- and post-development water flows. Mr. Gospodarek noted that the Town regulations required zero runoff and TFMoran had required a larger pipe diameter on the roadway so the flow was not restricted. He said the plan had a two hundred= sixty foot treatment swale which they were considering placing the wooded species= in every five feet. He discussed= the intention of the treatment swale (i.e. slow flow, water treatment). Mr. Scanzani asked if the plan wou= ld slow the water down from what currently on site. Mr. Gospodarek said the intention = of the plan was to take the existing flows and pass it through as fast as they cou= ld and slow the water down for extra flows so the peaks didn’t add up and have an impact downstream. Mr. Scanzani asked if Mr. Gove was comfortable with the drainage swales as desi= gned, would slow the water down and prevent the downstream properties from gettin= g more water, or faster water into their basements. Mr. Gove said he was not a profess= ional engineer, but in terms of the characterization and the number of pools was correct, from direct wetland impacts, there was only a small direct wetland= impact strictly for the road access at the southern most portion of the site (765SF). He said the areas be= ing built on weren’t direct wetland impact and were located higher; the l= ower areas were being left in tact to essentially function as they do now. The crossings were through the WCD= , not the wetlands themselves. Mr. = Gove said in essence Mr. Gospodarek was dealing with the runoff from the impervi= ous surface to ensure that it was treated and detained, which in his opinion was well done.

Mr. DeLuca asked how deep= the treatment swale was and wanted to know if it was timed to handle a bad storm. Mr. Gospodarek said the treatment swale was not designed to be a retention or detention pond and was one and a half feet deep.

Mr. Yarmo didn’t be= lieve that there was any resulting mitigation as a result of the meeting with Louis-Berger as outlined in the Gove Environmental memo dated February 23, 2004. He didn’t feel that the items listed mitigated the loss of three or four hundred feet of buffer around the vernal pool, and further didn’t address the vernal pool that was incl= uded in the report about the construction and building location.

Ms. Bousa believed that t= he purpose of the meeting with Gove and Louis-Berger in February, 2004 was to review ways of minimizing impacts. Mr. Yarmo asked how impacts were minimized. Mr. Gove said until the point when= the limited tree clearing was shown on the plan and would have the oversight of= the code enforcement officer; it had been just a conceptual drawing. He said the plan now showed that t= here wasn’t going to be any further disturbance outside the actual identif= ied areas on the landscape plan. = He reiterated that the plan was now set up to be exact limited clearing, stake= d in the field, reviewed by the code enforcement officer. He said if some of the white oaks = inside the limit of clearing they were supposed to do so.

Mr. Yarmo wanted to know = how the areas impacted (with vernal pools) would be mitigated. Mr. Culbert questioned when in the = past had the Board had asked for mitigation when the road was built in the WCD.<= span style=3D'mso-spacerun:yes'> Mr. Yarmo said a subdivision had b= een denied on an adjacent parcel due to environmental issues. Mr. Culbert asked when a developer= had been asked to mitigate when a road was placed through a WCD. Mr. Yarmo didn’t believe the= Board had in the case of a WCD next to a vernal pool.

Mr. DeLuca recalled that = between Louis Berger, Gove Environmental and the Planning Director was supposed to = see if the plan worked. He said he never saw a report from the group of people who got together. Mr. D’Andrea said a memo by = Gove Environmental had been included in the Board member packets. He noted that the intention of the meting was not so much to review mitigation of the vernal pools/WCD but to = more definitively define what was going to happen on the property and what could= be done to offset that. Mr. DeLu= ca said he knew that Louis-Berger had some concerns with vernal pools and the protection of the environment. He was under the impression that a report would be created. Mr. Culbert said there were eleven points outlined in a memo from Gove Environmental which was the outcome of a joint meeting (Mr. D’Andrea, Craig Wood, James Gove, Mike Gospodarek = and Charlie Cormier). Mr. D’Andrea explained that the first two points of the letter address possible design changes and after a full discussion (with Craig Wood, James Gove, Mike Gospodarek and Charlie Cormier) they concluded that the work wouldn’t make any significant changes in the driveway location and it= had been noted that the number of units had been reduced from what was previous= ly approved. He said the remaini= ng points clarified the additional measures taken in the past to ensure that t= he areas would be defined and limited in terms of clearing also with plantings= in the drainage swales.

Mr. McNamara believed tha= t the Board had requested the joint meeting so a compromise could be reached. He said he would feel better if co= mments were submitted by Craig Wood (Louis-Berger) commenting on the meeting if the measures were acceptable. Mr. D’Andrea said he had a conversation with Mr. Wood and he concurred wi= th the items outlined in the Gove letter; most of the suggestions were Mr. Wood’s.

Mr. Scanzani reviewed his recollection of the history of the plan.&n= bsp; He said the plan started with a much larger footprint and more units; issues such as zoning, road issues closed to gates and bars, wetland delineation (reviewed by two companies because of abutter concerns), Town Counsel review, two separate environmental reports had been done (Gove Environmental and Louis-Berger Group) has been questioned. The Louis-Berger report indicated = that the work done by Gove Environmental was done well and there were only a few minor differences in suggestions of how to get to the same result. The Board requested in February th= at the parties come together and work out the remaining issues as far as what coul= d be done to further the site development. Mr. Scanzani said the abutters had serious concern regarding the downstream drainage impact and it seemed to him had the abutters worked with the applicant, instead of trying to fight the applicant al the way maybe so= me of the downstream impacts (as Mr. Yarmo had suggested) could have been miti= gated a little bit more (not only on site, but off site as well). He said if basements were currently getting wet for the water to get to Little Island Pond, he saw that possibly continuing to happen. He disc= ussed the portion of the parcel near the second wetland crossing that might have = been used to hold back some of the existing water before it went down to the brook. However, he didn’= ;t feel the applicant would make that offer because one of the suggestions (li= sted on the Gove letter #11) may be implemented to add a walk way in the open sp= ace area.

Mr. Yarmo didn’t fe= el it was fair to say that the abutters fought the development. He said they made an effort to wor= k with the development team early in the process, but not about drainage. He was unsure if it was reasonable= to have the abutters propose that a compensation drainage design be done to relieve their neighborhood. M= r. Culbert said in past history, abutters and developers have gotten together = and try and make a better situation out of an existing situation. Mr. Yarmo believed there was an ef= fort to reach out and make a compromise on the property that wasn’t done.<= span style=3D'mso-spacerun:yes'> Mr. Scanzani said in the past the = Board had tried to fix certain existing road situations when a new subdivision was going in because it would be the only time to have it fixed when a new development was going in. Mr.= Yarmo asked if the Board had the responsibility to help out an adjacent situation= if there was an existing drainage problem that would be exacerbated or affecte= d by development. Mr. Culbert said= the issue was that the plan was stamped and the Board members were not engineer= s. He said just because a plan was co= rrect, it may not be built to plan, therefore if the proposed plan survived, he suggested that a lot of inspections be done for assurance.

Mr. Scanzani asked if Mr.= Wood had anything else to add to the letter submitted. Mr. D’Andrea said Mr. Wood w= as not in attendance because he had no further comments from that which was submit= ted to the Board. He noted that t= he engineering review commented regarding TFMoran’s comments dated December 29, 2003, were minor issues that were also pretty much done. Mr. Culbert asked if the Gove lett= er (dated February = 23, 2004) was also agreed upon. Mr. D’Andrea answered yes. =

Ms. Bousa clarified that = the December 31, 2003 letter from TFMoran (where it was stated that they requir= e no further review of the plans) the opening paragraph reads that the letter concluded their review of site plans and drainage calculations.

Attorney DeCarolis asked = if he may be allowed to make a rebuttal to one of the arguments made by Attorney Donovan. Mr. Culbert said pub= lic input had been closed.

Mr. McNamara said the num= ber of elderly housing units was relatively small and the developer had a right to attempt to build on the location. He questioned whether the environmental impacts post development wou= ld be better with four or five house lots (with family gatherings and pesticide use) versus elderly housing where people were less likely to be outside and gather. He was concerned with= the buildings be up against the edge of wet.&n= bsp; He went back to the interpretation of Zoning Ordinance 307-40 (broug= ht up by Attorney Donovan – ‘essential to the productive use of la= nd’) and didn’t believed that it had come up for serious analysis and was unsure exactly what it meant. Mr. Culbert said he did not know how to make a determination. Mr. Scanzani said that the NH cour= t system had ruled on several cases on different subdivisions regarding what may, or= may not be reasonable. He underst= ood Mr. McNamara’s comment and said the one the things the Board looked at originally was a twenty-seven unit proposal that required an additional wet= land crossing. He said one conditi= on of the Board in order not have the second wetland crossing was that the area be left in an open state to protect the downstream parcel (which was a trade off). He said there was a ris= k, and a compromise; the risk being if development was limited to the front portio= n of the parcel, as suggested by the abutters, and if the applicant felt that the court would not view the development as productive use, they could come bac= k and develop the whole piece; or the compromise being to have one wetland crossi= ng to get the second piece that would provide a value to the land. Mr. McNamara asked if Mr. Sc= anzani was speaking of the project taken as a whole, the use of the property was reasonable, given what was started with (the original proposal), and what w= as now there (current proposal). Mr. Scanzani believed that both the applicant and the Board had tried to compro= mise through engineering and expertise over the past year.

Attorney DeCarolis asked = if would be allowed to address Mr. McNamara’s comment regarding productive use. Mr. Culbert said public = input had been closed.

Mr. McNamara commended the abutters for their input, which helps the Board come to a decision. Mr. Culbert said the abutters had = helped him reduce the number of units (from twenty-seven to fifteen) for the proje= ct. He then addressed the issue of ‘favorable letter from Conservation’, which was supposed to be taken out during codification of the books, and for years the Board had tre= ated as review and comment. He sai= d if the Board didn’t receive a favorable letter from Conservation it didn’t necessarily mean that a plan must be denied.

Mr. Yarmo said the Board = was supposed to apply a common sense approach to the process and felt if the Bo= ard did so they would find that the parcel was not appropriate for the development. He said 40% of t= he road was in the WCD and a lot of the WCD was adjacent to vernal pools witho= ut proper mitigation. He believe= d the property could be developed without any environmental impacts. He said it was also the Board̵= 7;s responsibility to protect the Town’s investment; the Conservation Commission came up with $150,000 to preserve the adjacent parcel along with $50,000 from abutters and $60,000 through an LCHP grant. He said placing apartment complexe= s next to conservation lands would jeopardize a lot of future funding to secure mo= re land. Mr. Yarmo ended by sayi= ng he felt that the development was out of balance with its environmental impact = and was not appropriate.

Mr. Scanzani asked what w= ould be necessary to put the parcel in balance.&nb= sp; Mr. Yarmo didn’t feel that the consulting engineers were in agreement regarding mitigating to the maximum potential. Mr. McNamara said he had the same difficulty, however Mr. D’Andrea suggested that Louis-Berger was pres= ent and had agreed with the points outlined (February 23, 2004). Mr. Yarmo said the comments (in th= e Gove correspondence F= ebruary 23, 2004) were the result of a meeting, but it did not mean that the site had been mitigated to its fullest extent. Mr. D’Andrea reiterated that= the purpose of the F= ebruary 23, 2004 meeting was not to provide additional mitigation. He said he had spoken with Louis-B= erger since the meeting. Mr. Yarmo = said the environmental report stated that the Town owned property would be detrimentally affected. Mr. C= ulbert said if the plan was either passed, or denied the applicant could be approa= ched to purchase the land. Mr. Yar= mo said that was an option.

Mr. Scanzani discussed th= e zoning issue regarding the special permit and believed that there was a consensus = from the Board who agreed that the Fire Chief would have jurisdiction regarding = the gated entrance onto Smith = Road. Mr. McNamara said by Attorney Dono= van appealing certain matters to the Zoning Board of Adjustment, he affectively said that the Planning Board had made a decision regarding the four zoning issues. He said the Zoning Bo= ard of Adjustment had ruled on the four issues and didn’t feel that the Plan= ning Board had to do anything more with them.&n= bsp; Mr. Scanzani noted that the Louis-Berger and Gove Environmental repo= rts had been worked out during a work session, the summary of such had been provided to the Board and suggested that they be included as part of an approval and development agreement; also because of the closeness of the buildings to the WCD there should be more stringent inspections and key identification/marking of the trees through construction sequencing so no t= rees are accidentally cut. He said= the question of impediment of flow (307-40,B,1) had been addressed and felt the applicant (through Gove Environmental and the engineer) had been addressed properly. He ended by address= ing the Zoning Board of Adjustment’s decision regarding ‘favorable comment from conservation’ and said that the Board had always treated= the comment from conservation a certain way and didn’t feel the Board sho= uld treat it any differently today.

MOTION:

(Scanzani/Bousa) To app= rove the special permit for the wetland crossing as requested by the applicant in = the files.

VOTE:

(4-1-0) The mot= ion carried. Mr. DeLuca voted no.

Mr. Scanzani made a motio= n to approve that included certain conditions; Board members made additional suggestions. Mr. Yarmo felt i= t was reasonable to request Louis-Berger do an engineering report on a continuing basis as needed. Mr. Scanzani wanted as part of the sequencing the identification of the trees, placement= of the mulch barrier and extra inspections as deemed as necessary by the Plann= ing Director. Mr. D’Andrea suggested the following conditions: a final sign-off by TFMoran for their outstanding comments of December 29 and 31; receipt of the dredge and fill permit for the actual wetland impact proposed on the project; conservation easement documents reviewed by counsel and recorded with the plan; an as-bu= ilt when the project is complete to ensure compliance with the plan. Mr. Yarmo said the plan may meet t= he letter of the law of the subdivision regulations, he did not feel it met the spirit and intent. He said the Board should deny the plan. <= /p>

MOTION:

(Scanzani/Bousa) To app= rove the plan subject to:

1) all of the condition= s in the memorandum dated Monday, February 23, 2004 be put on the plan as a condit= ion of approval and that said conditions also be put in a document to be reviewed by this Planning Board and the Planning Director in a developers agreement and that the identification of key large white oak trees, etc. be done in the field pr= ior to any cutting on the property (a construction sequencing in which the identification of those trees occurs prior to anything being cut on the parcel);

2) the development agre= ement will include the conditions set forth in the letter and any issues with wintering/chloride/plowing; if new vernal pools are found, they shall be identified and protected to the greatest extent possible (the Planning Bo= ard and Planning Director will have the opportunity to review the document); =

3) Inspections (prior t= o and during building) as deemed necessary by the Planning Director; 4) Louis-B= erger will do an engineering report on a continuing basis as needed;

5) as part of the const= ruction sequencing, the identification of the trees, placement of the mulch barri= er and extra inspections shall be done as deemed as necessary by the Planning Director;

6) a final sign-off by = TFMoran for their outstanding comments of December 29 and 31;

7) receipt of the dredg= e and fill permit for the actual wetland impact proposed on the project;

8) conservation easement documents reviewed by Town counsel and recorded with the plan;

9) an as-built to be su= bmitted when the project is complete to ensure compliance with the plan.

VOTE:

(4-1-0) The mot= ion carried. Mr. DeLuca voted no.

Ms. Ouellette returned to= the Board.

Ms. Bousa and Mr. Yarmo l= eft the meeting.

Map 1 Lot 5-104, 113, 115 – Sousa Realty & Development – Lawrence Corner – Proposed 20-Lot Subdivision – Court Ordered Remand

Mr. Tony Basso of Haynor/= Swanson, representing Sousa Realty, said there were outstanding issues from a month = ago as outlined in the Dufresne-Henry letter.&= nbsp; He said one of the issues was additional testing on the road as well= as other minor plan issues (i.e. calculations).&nbs= p; He said they worked with Dufresne-Henry over the past month to work through the comments, submitted revised plans to Dufresne-Henry which were promptly reviewed; there were a couple more items, so the plan was further revised and submitted to the Planning Department. He said there was one further comm= ent from Dufresne-Henry regarding the sump design on the basin (on the roads) w= hich would be stipulated. Mr. Bass= o said the other issue was cistern location to be worked out with the Fire Department. He said he spoke = to the Fire Department, who showed him the three cistern locations (within 1000ft.= of each other); the Fire Chief asked to reserve the right to move the cisterns= if he deemed necessary once the road was built, which they had agreed to.

Mr. Dick Hertrich of Dufr= esne-Henry said they issued their letter on April 19, 2004 and received a set of plans on May 10, 2004, a= t which point they reviewed and returned comments to Haynor/Swanson on May 14, 2004. He said the main concern was the a= mount of testing and the location of the basins (which was a site specific item). He said the basins were redesigned to be wider, shallower with more stone pack. He said two plans of the road were received today, which lead to one more comment that related to the size of = the base of the basin that Mr. Basso said they were going to do anyway. He ended by saying the road questi= ons had been answered. He said th= e only thing the Board may want to discuss is the proposed two-foot high retaining wall (textured block finish) and if it would be acceptable for the area.

Mr. Culbert asked if the retaining wall be similar to a rock wall.&= nbsp; Mr. Basso said they were proposing a versa-lock style wall (as used = in landscaping). Mr. Culbert ask= ed if it could be a rock wall. Mr. = Basso said fieldstones could not be stacked because it would have to be structure= d to hold soil back. He said the w= all would be pre-engineered approximately fifty-five feet long. He said if versa-lock made a stone= faced pre-engineered wall they would be happy to discuss it with Mr. D’Andrea.

PUBLIC INPUT

Attorney William Mason, representing Mary Farm Trust felt the Board should note that when the court sent the plan back, it did so instructing that the Board shall provide Sousa with a new hearing respecting the subdivision plan and shall fully and fair= ly consider the application pursuant to its subdivision regulations and related ordinances. He said the fact = that the Board may have a set of concerns that resulted in the earlier action, he didn’t feel that it foreclosed the Board in reviewing the plan as it = came back for review; to review all aspects and ensure that the plan was compliant. Attorney Mason sai= d his client’s primary concern was with regard to the traffic issue and the effects at the intersection of Mammoth Road and Castle Hill Road.&nb= sp; He said historically Mammoth Road was a country road and didn’t have = the traffic volumes that it does today. He said the traffic increases had forced the Town in some situations= to make improvements to certain intersections. He said when the plan had previous= ly come before the Board the former Town engineer, CLD Engineering, had indica= ted that while enforcement of the posted speed limit was necessary it should be noted that the limited site distance and the opportunity for excessive spee= d in the area increased the safety risk. He felt the safety risk was ever increasing not only from the developments in Town, but also from surrounding communities. He said deeming the development as scattered and premature was one thing, but the safety risk identified and certified as part of the records early on by CLD should be incorporated and reviewed by the Board as part of this hearing. Attorney Mason said if the Board ap= proved the project there were some comments by CLD regarding the way in which the project would be developed that should be considered, such as the safety problem due to the use of the road by both residential traffic and construc= tion vehicles. CLD had recommended= that Certificates of Occupancy be withheld until the site construction was substantially complete. He circulated a photograph of a construction vehicle currently parked on Lawrence Corner Road, which may pose a problem if additional construction vehicles, or residential construction vehicles were also to access the road.

Mr. Basso addressed the <= st1:Street w:st=3D"on">Mammoth Road intersection safety concerns and said that their traffic consultant found t= hat it met the 400ft. state site distance requirement; CLD made a recommendation that they would like to see 500ft., which is where the $20,000 contribution ($1000 per lot) came from for future improvements. Mr. Culbert asked how $20,000 would increase site distance. Mr. B= asso said it would contribute toward construction of a future project. At the time Tom Sommers of CLD had spoken about a state project where there would be an 80%/20% funding split. Mr. Sommers had review= ed the approximate construction cost ($100,000) for lengthening the site distance = by one hundred feet, so they offered the Town’s 20% portion. Mr. Culbert asked what was impedin= g the site distance. Mr. Basso said= there was a hill (crown of the road) up further from the development that would n= eed to be reduced by approximately one and a half feet. He then addressed the concern with construction vehicles. He sai= d the road was currently sixteen feet and they were proposing a wider road with shoulders and therefore would have room for vehicles to pass. Mr. DeLuca confirmed that the prop= osed road would be twenty feet and have shoulders. Mr. Basso answered yes.

Mr. McNamara agreed with = most of what Attorney Mason said. He = said safety and traffic issues were some of the primary concerns the Board had when the= plan was originally denied. He sai= d the court’s decision (which he felt was arbitrary and unreasonable) to overturn the Planning Board’s denial ‘hamstrung’ the Board because of all the basis on which the plan was denied, which the court foun= d to be lacking in support. Mr. Cu= lbert asked if the Board had to consider the plan even if they considered there t= o be a safety problem on the road. Mr. McNamara said the problem was in the way the decision read, because they de= nied every point on which the Board based the rejection. He said the decision made a point = that the Board should have a full and complete hearing, but the judge’s decision foreclosed a lot of the issues.&n= bsp; He continued to believe that there was a real and continuing safety concern in that area, and it would take more than $100,000 to fix that hill/incline/site distance. M= r. Culbert said the Board could decide that $20,000 wasn’t enough. Mr. McNamara said the Board would = have to have a basis and engineering plan, and right now they didn’t.

Attorney Brad Westgate of= Weiner & Bennett, representing the applicant, elaborated on some of Mr. Basso’s comments. He sa= id they had maintained throughout the public hearings this year that the court= determination foreclosed consideration of any aspects of the Castle Hill/Mammoth Road intersections along Route 128 because the Department of Transportation 400f= t. standard was met. He said dur= ing the court process the Board was allowed to elaborate on so-called additiona= l safety concerns because one of the determinations for denial was knowledge of the = site and safety issues. He said th= ere had been a discussion which focused down into the one matter primarily involving the drainage design for La= wrence Corner Road, which he believed had been worked= out to satisfaction between Haynor/Swanson and the Town consultant.

Attorney Mason believed t= hat the court’s decision spoke in part to the $20,000 contribution with the f= act that the Planning Board didn’t indicate what they would do with the offer. He said the problem wi= th contributing $20,000 to a fund that’s held in a savings account until= the state decides what to do doesn’t solve the safety problem on Mammoth Road. He said the development of the subdivision would not approve the situation. He suggested that the Board could approve the plan conditioned upon the applicant taking the $20,000 and deal= ing with the state to effectuate the improvements at the Mammoth Road/Castle Hill Road intersection.

Attorney Westgate said th= e Board didn’t have the authority to condition the approval on the applicant making a contribution and then working that money with the state to come up with a solution to a problem that the court found did not exist. He said the applicant met the requirements that applied, and all they were doing was relating an existing condition, the development did nothing to the intersection of Mammoth Road and Castle Hill Road. He said it would be used in relati= ve terms compared to its existing use; and nothing would be done to alter the existing configuration which met DOT standards.

Mr. Scanzani said if the = Board took the voluntary contribution of $20,000, the Board would have the right = to petition the state for road improvement regardless of the court’s decision. He said it appeared= that all of the issues that the Board was concentrating the efforts for, which w= ere drainage had been met. Mr. Ba= sso clarified that it was not just drainage, but the entire widening project of= Lawrence Corner Road that had been a preliminary design at the time of denial. He said they had gone through not = just the drainage, but the entire widening plan with Mr. Hertrich (Dufresne-Henry). Mr. Scanzan= i said at this point, rather than leaving the money in an account, the Board should try to send a letter through the Planning Director to the state to say that province could be made by the Board and there were funds to do the project. He felt that everyth= ing that could be addressed had been addressed.

Mr. Culbert said that the= Board could address construction sequencing and time of construction. He said if the road was narrow, he= would assume that construction would occur during off-peak hours. Mr. Scanzani said because the work= would be done in the back land, it wouldn’t affect anything. Mr. Culbert asked if the road wide= ning would be done first. Mr. Bass= o said the widening and base coat on Lawrence Corner Road would be done; the final coat would not be put down until after the site construction was complete. He said there were three residence= s that would be affected in the construction process and limiting time would prolo= ng the process. He said the road= would be kept open for traffic, and not closed at any time. Mr. Culbert said the intersection = of Mammoth Road and Castle Hill Road was considered dangerous and felt if construction vehicles were accessing t= he road during peak hours it opened up a cause for concern. Mr. Basso said the 400ft site dist= ance took those concerns into consideration.&nb= sp; Mr. DeLuca asked if the Board could request traffic people. Mr. Basso asked how the Board felt= about having safety signs along = Mammoth Road indicating traffic entering. He recommended that the Board stip= ulate that they work with Mr. D’Andrea regarding a plan using a sign package that indicated slow traffic entering.

Mr. Scanzani asked if the= expansion and shoulder work along the old portion of Lawrence Corner Road would be done = first, and then they would go back to the beginning of Lawrence Corner Road and pave the w= hole thing. Mr. Basso said the fin= al coat (which would be bonded) would go down when the whole project was ready= for it, therefore all the improvements would have time to settle. Mr. Culbert noted that it was requ= ired for the full project to be bonded before work began. Attorney Westgate said they would = follow whatever the typical bonding requirements were.

Mr. Scanzani confirmed th= at there were no waiver requests.

MOTION:

(Scanzani/McNamara) To = approve the plan subject to: 1) the applicant is to pay up front the voluntary contribution of $400 per lot for open space ; 2) the applicant is to pay = up front the voluntary contribution of $20,000 for road improvements; 3) the construction sequencing include the widening and drainage of the existing portion of the road before the new construction is started (with the understanding that it is to base coat); 4) note on the plan that a sign package be posted at the proper distances on Mammoth Road and have the To= wn Safety Committee review their location prior to them being put up.

VOTE:

(5-0-= 0) The motion carried.

Mr. Scanzani requested th= at Mr. D’Andrea send a letter to the State Department of Transportation indicating that the Board considered the intersection as needing work and t= hat the Town had $20,000 toward improvement; also that the state put the inters= ection on the road improvement plan to be funded, fixed and take the hump out of t= he road.

Map 41 Lot 10-310 – Cer= ullo – Route 38 – Modification to Approved Site Plan<= /b>

Mr. Culbert noted that a = site walk was done.

The application was date = specified to the June 7, 20= 04 meeting.

DISCUSSION

Subdivision Regulations – Set items to go to Public Hearin= g: General Design Principles and Standards, Lot Shape, Driveway Access and Road Design

Mr. Culbert said discussi= on would be deferred to a later meeting.

MINUTES

May 3= , 2004

Deferred to the next sche= duled meeting.

DATE SPECIFIED APPLICATIONS

Map 41 Lot 10-310 – Cerullo – Route 38 – Modification to Approved Si= te Plan

ADJOURNMENT

MOTION:

(McNamara/DeLuca) To ad= journ the meeting.

VOTE:

(5-0-= 0) The motion carried.

The meeting was adjourned= at approximately 11:00 pm.

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Respectfully submitted,

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Charity A. L. Willis

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Recording Secretary