PB Minutes 8-02-04

APPROVED

TOWN OF PELHAM

PLANNING BOARD MEETING

August 2, 2004

The Vice Chairman, Peter = McNamara called the meeting to order at 7:30 pm.

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

PRESENT:

Peter McNamara, Gael Ou= ellette, Bill Scanzani, Henry DeLuca, Robin Bousa (arrived after the meeting comme= nced 7:48pm), Selec= tmen Representative Victor Danevich, Planning Director Will D’Andrea

ABSENT:

Paddy Culbert, Alternat= e Bob Yarmo, Alternate Raymond Brunelle

PUBLIC HEARING(S)

Adoption of 2005-2011 Capital Improvement Plan

Mr. Scanzani, Capital Improvements Plan Committee Chairman, presented the CIP to the Planning Boa= rd for approval. He briefly revi= ewed the recommendations that would be made to the Board of Selectmen and other departments.

There was no public input= .

MOTION:

(Danevich/DeLuca) To ap= prove and accept the Capital Improvements Plan 2005-2011 as written.

VOTE:

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

ADMINISTRATIVE

Map 40 Lot 6-185 – Thom= as Mahoney – Irene Driv= e – Honey Lane/Robin R= oad – Request for Bond Releases

Attorney David Groff, rep= resenting Mr. Thomas Mahoney, said the only bond release he was aware of was for Irene Drive= , phase I, in the amount of $40,000 (plus accrued interest). He said the request had gone befor= e the Board a couple months ago and had been tabled pending information from an inspector regarding a bridge. Mr. D’Andrea said the item had been before the Board with a request for a reduction for Irene Drive Extension. At that time, the issue was the guardrail installation. TFMoran has since inspected and fo= und that the installation does not meet manufacturer specifications; at this ti= me they continue to not recommend release of the bond. Mr. Danevich asked if the bond cou= ld be reduced. Mr. D’Andrea believed the bond could be reduced to approximately $10,000 which would be adequate to cover the cost for proper installation; the only remaining issu= e is the guardrail.

It was noted that there w= as outstanding work to be done on Honey Lane/Robin Road.

MOTION:

(Danevich/Scanzani) To = reduce the Irene Drive bond from $40,000 to $10,000 to cover the costs of the remaining item (guardrail).

VOTE:

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

Mr. Groff confirmed that = all but $10,000 would be released, which included the accrued interest and wanted to know how soon it would be released. Mr. D’Andrea said the Planning Department would release the po= rtion of the bond as soon as it could be processed, which would begin this week.<= span style=3D'mso-spacerun:yes'>

Ms. Bousa arrived.

OLD BUSINES

Map 20 Lot 3-130-4 – A.= G.A.N. Realty Corp. – Bearh= ill Road – Proposed 2-Lot Subdivision for continued consideration

Mr. McNamara informed tha= t the applicant was unable to attend the meeting and requested a continuation to = the August 16, 2004 meeting.

The plan was continued to= the August 16, 2004 meeting.

NEW BUSINESS

Map 21 Lot 3-102 – Cynt= hia J. Currier 2000 Revocable Trust, Cynthia J. Currier, Trustee – Partridgeberry Lane – Modification to approved Subdivision Plan – Remove a Conditio= n of Approval

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. One notification had been refused and returned by Joseph and Suzanne Gauthier, = 67 Tenney Road and stamped ‘not deliverable as addressed – unable to forward’ containing three stamps.

Attorney Morgan Hollis of Gottesman and Hollis, 39 E= ast Pearl Street, Nashua, NH, representing the applicant met w= ith the Board. He provided a brief history of the plan (Map 3-102, 3-102-1 and 3-102-18) which was originally = presented to the Board in March, 2001; on March 7, 2001 the Board discussed; the Board also discussed it April 2, 1001 an= d on May 7, 2001 the = Board approved the subdivision. Att= orney Hollis said a discussion arose during the May 7, 2001 meeting regarding what to = do with the intersection of Partri= dgeberry Lane and Tall Oaks Drive; the minutes reflect a request of a member of the Board to the applicant’s engineer to dedic= ate a rounding at the end of P= artridgeberry Lane. He said the meeting minutes didn’t contain any discussion other than the request and the agreement that it would be done. Subsequent to that meeting the pla= n was modified to show a rounded section (similar to a ¼ cul-de-sac) with = the words ‘to be deeded to the Town of Pelham’; the plan was approved and recorded in 2001.

Attorney Hollis said sinc= e the approval, the property had neither been deeded, nor had the road been built= ; it was called to his client’s attention early in 2004 that this particul= ar aspect of the plan needed to be taken care of. He said between 2001 and 2004 ther= e were a series of Planning Directors for the Town, during which time his client’s then attorney me= t with the Town Planning Director and explained that the rounded area was somewhat ill-conceived and a last minute addition.&= nbsp; He said the area was subject to private easements with utility compa= nies and above-ground utilities were located in the rounding; the construction of the rounding could not really take place.&= nbsp; He said after a discussion with the current Planning Director, he checked with the neighbors and learned that the reason for the rounding was= originally a concern for the plowing of that section of Partridgeberry Lane. He then met with the Town Road Age= nt (Don Foss) to discuss the rounding and how it was plowed and if it was necessary. The Town Road Agen= t said he would write a letter if the Planning Board requested, but would not writ= e a letter at the request of a private citizen. Attorney Hollis quoted the Town Ro= ad Agent’s conclusion that it was not necessary to have the rounding, the Town currently plowed by pushing the snow off the edges of the roadway and would continue to do so even if the rounding were built because it would no= t be complete enough to make a circle with the truck. The lot at the end of Partridgeberry Lane had a home at t= he end and the Town had the job of clearing the road. Given the information, Attorney Ho= llis made the application to amend the existing plan so there were no ‘hanging’ issues. He noted that the neighbor he spoke to, Mrs. Pelletier, indicated that she sti= ll had issues with the driveway plowing, to which he suggested she take the concern to the Town Road Agent. He said he also asked Mrs. Pelletier if she an objection to the rounding; Mrs. Pelletier said she wanted the rounding.&nb= sp; Attorney Hollis reiterated that it would be impossible to do the rounding due to the utilities; it seems to be unnecessary in the eyes of the Town Road Agent. He said the request of the applicant was to amend the plan to delete the words ‘t= o be deeded to the Town of Pelham’, and eliminate the fourth condition of approval ‘round out Partridgeberry’.

Mr. Scanzani questioned i= f the frontage on ML 3-102-16 was predicated on the stub. Attorney Hollis said the lot wouldn’t be based on frontage off the stub. Mr. Danevich believed the stub was= added for rounding when plowing. Mr. Scanzani said the stub could be taken out (grassed and extend the driveway)= and the plow could go down Tall Oaks Drive and bend around = Partridgeberry Lane. Attorney Hollis noted that the fro= ntage for ML 3-102-16 shown on the subdivision plan was 233ft., however the driveway came into the area of the stub. Mr. Danevich believed t= he reason the stub was created approximately fifteen years ago was give ML 3-102-16 frontage (the configuration would not be allowed under today’= ;s standards). He felt this case should give a firm message back to the engineering firm about being quick to agree without further research because of the burden on homeowners; he had = no objection to removing the restrictions.

Ms. Ouellette said the fi= le contained a letter dated August 2, 2004 from Highway Road Agent Don Foss wh= o said in his opinion the end of Partridgeberry Lane was fine as was currently constructed; increasing the paved area would not make snow plowing any easi= er or less costly; he saw no benefit to the Town by enlarging the area.

PUBLIC INPUT

Mr. Gregory Pelletier, who resided in the area of the stub believed there was a non-compliance issue of the plan that was presented and approved by the Board. He didn’t understand why the applicant didn’t do what they were supposed to do. He didn’t feel Mr. Foss was = qualified (as an engineer) to make the decision.&nbs= p; He said there were already problems with snow plowing, which had been observed by Mr. Danevich when he was a Planning Board member. He said there were no disagreement= s when the plan was being approved and believed the issue was not moving utilities, but rather the cost to the applicant. Mr. Pelletier said his objection was that the plan was approved by t= he Board and it was a non-compliance issue by the builder.

There was further discuss= ion regarding the plowing of the road. Mr. Danevich agreed with Mr. Pelletier , noted he took pictures and = said it was accurate that it was not being plowed. Mr. Scanzani believed there were t= wo separate issues, one being the plan and the other being the way in which th= e road was being plowed. Mr. Pelleti= er discussed the problems with traffic having no outlet and noted there had been an inci= dent with the Fire Department apparatus not being able to turn around. He didn’t feel this was a sn= ow removal issue, but rather the Board approved a plan and there were no valid reasons it shouldn’t be done, other than the builder didn’t want to. He said he questioned sev= eral times about the status and why a bond was never retained; the response he r= eceived was a thank you and that his concerns would be duly noted.

Mr. Scanzani asked if the= re was any signage in the area that indicated the stub ended. Mr. Danevich said the stub was approximately 50ft. Mr. Pelle= tier didn’t understand why the Board would base a decision on Mr. FossR= 17; statement since he was a road agent, not an engineer. He noted snow removal was an issue= .

Mr. McNamara asked for fu= rther clarification from Attorney Hollis why doing what was on the plan would be impossible or impracticable. = Attorney Hollis said there were private utility easements that preexisted the subdivision that were located above ground and could possibly ‘veto’ the right of the Town to have an easement over the land = or for the applicant to deed the land to the Town (because of such utility eas= ement). He had been unsuccessful at contac= ting the utility company regarding the easement. He pointed out that at the March 7= , 2001 meeting the plan was presented, discussion ensued about what would happen at the end of Partridgeberry Lane and it was deemed that it would be done with= a ‘hammer head’; at the April 2, 2001 meeting the hammer head was shown on the plan and discussed, the issue of the hammer head had to do with the future development of the property at the end of Partridgeberry Lane and agreed to go in place on the plan; at the May 7, 2001 the former Planning Director Clay Mitchell had a list of concerns, one of which was the end of Partridgeberry Lane if it would continue being a hammer head, or if it woul= d be a cul-de-sac; the Safety Committee preferred a cul-de-sac. Attorney Hollis said there was no further discussion other than the agreement that the engineer Peter Zohdi (Herbert Associates) would bring the plan back with the cul-de-sac in place. He said during the Mar= ch meeting the minutes indicate that Mr. Pelletier didn’t have a problem with the plan presented, but had questions regarding the hammer head, to wh= ich Mr. Zohdi reviewed the plan and further explained the hammer head. He said there wasn’t any oth= er discussion about the purpose of the change of the hammer head to the change= of what is called a cul-de-sac, which would only be 36ft. in radius that would= be insufficient to make turning movements by trucks per Mr. Foss.

Attorney Hollis addressed= the issue of engineering and said no engineer (neither the applicant’s nor the Town’s) looked at the plan and said the cul-de-sac should be added. He felt it was apparen= t that there wasn’t any real reason for it to be added, other than a Safety Committee concern of if there could be a turn-around. He said Mr. Pelletier didn’t object to the turn-around when it was first presented on the plan and there= was no specific request by him for a cul-de-sac. Attorney Hollis said the most impo= rtant reason for the applicant’s request was there was a utility and it was= not feasible to put the turn-around in with the utility there. There was no permission from the u= tility for the Town to build on that section.&nbs= p; It is not necessary in accordance with the Road Agent’s comments. Attorney Hollis fel= t it was reasonable to amend the plan to reflect what it should have been without the last minute change of adding the ‘rounded out’ that couldn̵= 7;t be built, wouldn’t be built and last, didn’t need to be built.

Mr. Pelletier said the re= ason there was no objection to the hammer head/cul-de-sac was because the engine= er (Mr. Peter Zohdi, Herbert Associates) told him it would be taken care of an= d rounded out. He felt it was a waste o= f time to continue to review the plans.

Mr. DeLuca asked if the a= rea was unfinished and if the rounded area was needed to satisfy Mr. Pelletier. Mr. Pelletier said if the circle w= as put in as intended the poles would need to be moved.

Mr. Scanzani discussed th= e issue and suggested that signage be added to indicate a dead end and if plowing w= as an issue, something should be done, but was unsure if all the issues fell u= nder the purview of the Board. Mr. DeLuca felt if the area needed to be cleaned/dressed up the engineer should review so the Board could make an informed decision.

Ms. Ouellette confirmed t= hat there was an existing easement for utilities on the land being discussed. Attorney Hollis said there was an easement in place and there had been a discussion with field representatives who indicated they didn’t like to move the utilities. Mr. Scanzani noted that the hammer= head was in place prior to the current regulations being in place. He recalled that the reason the tu= rn around was requested had nothing to do with trucks turning around, but rath= er the concern about plowing; however now Mr. Foss has indicated his understan= ding of the utilities and would do what he could.

Mr. McNamara said he was sympathetic because it was a condition of approval, and would be in favor of placement of a sign and discussing plowing with Mr. Foss.

Ms. Ouellette asked how f= ar back the utility easements went. M= r. Pelletier said the subdivision was done fifteen years ago and were put where ever the setbacks were required, possibly twenty feet. He noted there were no problems wi= th snow plowing when it was just Partridgeberry Lane, but when Tall Oaks was built the truck o= nly swung down and made a mess. He didn’t understand how the Board could change its mind and noted from = day one, there had not been a bond in place for work.

Attorney Hollis felt the = Board should consider that the ¼ rounding was added to the plan as an accommodation, not as part of the subdivision. There was further discussion why t= he engineer agreed to the rounding to which Mr. Pelletier reiterated that the engineer and the Board were only trying to correct a problem.

Mr. DeLuca made a motion = to leave the plan as it was and have an engineering study done in the area. There was no second to the motion.= Mr. Danevich questioned who would = pay for the study. Mr. DeLuca wit= hdrew his motion. Mr. Scanzani said= there were two problems he wanted to see addressed: 1) Road Agent not plowing the road in a manner that allowed the hammer head to be cleared in the first pa= ss – which is a safety concern for Mr. Pelletier and the new lot at the = end; and 2) concern that trucks are going down the road and not being able to turn around – should be some notification that indicates a dead end.&nb= sp; He discussed how a motion could be stated to reflect the concerns. The following motion was made: To = change the conditions of approval as follows: 1) to remove condition four the rounding; 2) request that the Planning Director send a letter to Don Foss regarding the plowing of Partridgeberry Lane; 3) request that the applicant have appropriate signage indicating that the hammer head is a dead end. Mr. Danevich felt the Safety Commi= ttee should review for appropriate signage. Signage would be at the applicant’s expense. Mr. Danevich said he would discuss= the plowing of the road with the Selectmen and the Town Administrator.

MOTION:

(Scanzani/Danevich) 1) = To change the condition of approval and remove condition number four the ‘rounding’ at the end of Partridgeberry Lane; 2) Planning Director to send a letter to the Board of Selectmen and Town Administrator regarding the plowing of the hammer head on Partridgeberry Lane; 3) with review by the Safety Committee, the applicant is to place appropriate sig= nage (at applicant’s expense) indicating that the hammer head is a dead = end.

VOTE:

(5-1-0) The mot= ion carried. Mr. DeLuca voted no.

Map 38 Lot 1-112-13 – F= ort, Michael – 5 Autumn Street – Modification to an approved Subdivi= sion Plan – Propose to remove a portion of a No-Cut easement along property line

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.

Attorney Andy Prolman of = Prunier & Prolman, 20 Trafalga= r Square, Nashua, NH, representing the applicant met with the Board to discuss the request. He said the applicant had come bef= ore the Board June 7,= 2004. He said he had reviewed the meeting minutes and there was some confusion regarding the Board’s authority = to amend the plan and perhaps some issues regarding the language in the applicant’s deed. Attor= ney Prolman said a series of correspondence had been forwarded to the Board and= a letter (dated Jul= y 7, 2004) detailing the applicant’s intent regarding the no-cut area. Also forwarded was a letter dated = June 30, 2004 f= rom Meisner/Brem, the engineer for the Long Pond Shores project, who explained how the no-cut easement came about and the fact that= by the time the no-cut easement came about there was nothing left to cut. Attorney Prolman provided a letter= dated June 13, 2004 after he had contacted Town Attorney Diane Gorrow to discuss the procedure = and if the Board had the authority to modify/amend the subdivision plan. He said the applicant would like t= o do their best to create vegetative screening along the property line and have = the right to maintain the plantings (i.e. weeding, mulching) as well as maintain the lawn area within the portion of the fifteen feet. The no-cut easement would be remov= ed in its entirety back to the portion of the lot that showed the forested buffer area.

Mr. Scanzani recalled tha= t Code Enforcement was going to provide a recommendation. Mr. D’Andrea said Code Enfor= cement didn’t come back with a recommendation, but they made an observation = that there had been cutting and it was not a natural condition as originally reflected on the approved subdivision.&nbs= p; He said if the Board were to not modify the condition, Code Enforcem= ent would have to further pursue action.

Ms. Bousa asked if the sp= rinklers (to the Marsden house) would remain. Attorney Prolman said they would work with Marsdens to have the sprinklers removed and would do so in conjunction with the work that the Fo= rts would do on-site. Ms. Bousa a= sked if there were any setbacks for swimming pools. Mr. McNamara said general setbacks= would have to be conformed to. Atto= rney Prolman believed the pool fencing was within the setback, but noted the applicant wanted the no-cut portion addressed.

Mr. Scanzani believed tha= t the Board previously could not determine the purpose of the easement, however it seems that the applicant’s attorney contacted the Town’s attorn= ey and the opinion was that a condition of approval could be changed and a new warranty deed could reflect the change and be recorded. Mr. McNamara felt sufficient documentation had been provided regarding the purpose of the easement and t= he history.

PUBLIC INPUT

Mr. Scott Marsden, 8 Blackstone Circle, read aloud a letter he composed regarding the proposed removal of the conse= rvation easement on lot 1-112-13 that is located directly behind his home. He said the fifteen-foot strip of = land was cleared approximately fifteen years ago, at that time the conservation easement didn’t exist and was created ten years later when the subdiv= ision was approved in 1999. He said= the purpose of the easement may have been to buffer the two properties, but it = also served as a wildlife corridor for deer.&nb= sp; He said after the easement’s approval he was not aware of it because no signs, stakes or markers were posted. He said had the easement been allo= wed to grow naturally at the time, it would now be in its intended state. He said the applicant was aware of= the easement as it was stated in his deed, however the applicant chose to ignore and violate the terms and conditions. Mr. Marsden said he had offered to cap the two sprinkler heads that = had been put in years before the subdivision and easement approval and would re= move them promptly when instructed to do so.&nb= sp; He believed staggering replanting along the entire fifteen foot ease= ment was necessary; the privacy screen proposed would be nothing more than a tree fence and not representative of the natural conditions originally intended.= He believed the applicant was oppo= sed to the easement because they wanted to expand the boundaries of his usable lan= d by maintaining a substantial portion of the easement as lawn. He ended by requesting that the Bo= ard voted as they did June 7, 2004 to allow the easement to return to its natural state. Mr. Marsden provided the Board wit= h a copy of the letter.

Mr. Scott Corolis, repres= enting the interests of his wife, Ms. Donna Dunn, 16 Autumn Street, believed the t= rue intent was not to put the land back to its proper/intended use, but rather = to convert the land for the sole and exclusive use of the applicant and increa= se his usable land space. He req= uested that the Board deny the request for the following reasons: 1) voting in fav= or would fail in court because it would contradict the terms contained in the applicant’s title/deed; 2) courts could not uphold the decision becau= se they would have no ability in the future to ensure the decision was applied fairly and justly to all easements; 3) Town rules and regulations are prospective in nature – no compelling reason other than to convert the land and increase the applicant’s usable land space; 4) under recommendations in the Master Plan – Section E – legal easements should be placed on all conservation properties; the forested buffer is a conservation property; 5) this is not the case to test whether or not to re= move an easement in express contradiction of the terms to a title. Mr. Corolis recommended that the easement be allowed to return to its natural vegetative state, which was the original intent of all the easements within the subdivision.

Mr. Danevich questioned w= hy the applicant didn’t construct a fence.&= nbsp; He said Mr. Marsden has encroached onto Mr. Fort’s property. Attorney Prolman said in speaking = with Mr. D’Andrea, no-cut means a fence could not be put up and the grass could not be cut. Mr. Danevich said= he had not interpreted a no-cut zone as not being able to plant or maintenance= (i.e. remove dead trees, pruning); there was a list of conditions when the Board reviewed WCD and what was allowed. <= /span>He said this appeared to be a civil case and believed the reason the buffer was probably put to create a visual buffer.&nb= sp; He was not inclined to remove the no-cut easement and would like to = see enforcement of restitution into a natural state buffer. He felt the Board should check with legal regarding a fence. Atto= rney Prolman said if it was the Town’s interpretation that his client could install a fence, trees/shrubbery then they wouldn’t have to come befo= re the Board. However it was his understanding that no-cut meant no-touch.&= nbsp; Mr. Danevich believed that the Board recognized that they could modi= fy their plans through a public hearing. Mr. D’Andrea said his interpretation of a conservation easemen= t/no-cut area is a natural condition; the plan before the Board with grass, staggered trees on top of a berm is not a natural condition. Mr. DeLuca said generally when the= re is a condition for no-cut it also states no-disturb. He believed no-disturb meant a nat= ural state. The Board discussed the interpretation of no-cut.

Ms. Eleanor Burton, Sherburne Road, said she did not receive notice regarding the first meeting. She was unsure where Autumn Street= was located and wanted to review where her property was in connection with the proposed.

Mr. Hector St. Jean, 6 Blackstone Circle was in favor leaving the no-cut easement in place.

Attorney Prolman said his= client has reviewed all the meeting minutes from the time that the subdivision was being approved in 1999 and 2000 and found no reference to the no-cut easement. It was his understa= nding that it was put in last minute at the request of the Marsdens (per the Meis= ner Brem letter). He said his cli= ents were trying to put the area back to a decent state. Because the area is well manicured= they didn’t want to have the fifteen feet grow wild.

Mr. Scanzani said he had conflicting information; there was a letter from Meisner Brem that indicate= d the easement originated from a request by the Marsdens (the abutting neighbors) directly to Meisner Brem’s client.&n= bsp; Normally a no-cut zone was a recommendation from the Conservation Commission. Mr. Scanzani said= he indicated at the = June 7, 2004 meeting there was no record of the fifteen foot no-cut easement in any of t= he Long Pond Shore subdivision Planning Board minutes. Howev= er there was a letter from Meisner Brem that provided a summary of facts relat= ing to the no-cut easement 1)easement was granted to alleviate the Marsden̵= 7;s concern – it was thought there were trees on the property; 2) during construction staking, it was discovered that the Marsdens had previously en= croached on the now Fort lot, previously the Girl Scout camp, by approximately twenty feet by installing a lawn which was done years prior to the construction of= the Fort’s home; 3) at the time of construction it was not an issue since there were no trees, and none to be cut – the contractor simply built= a house and installed a lawn; 4) a tree line as well as a building, driveway, septic etc. shown on a grading plan represent what may be constructed on a = lot, but not a final design. Mr. Scanzani said it wasn’t there in 1999, but a plan was signed with a fifteen foot no-cut zone. It = was his opinion that the easement should be left.

Mr. McNamara asked if Mr. D’Andrea had any insight as to the original purpose of the easement.<= span style=3D'mso-spacerun:yes'> Mr. D’Andrea said he couldn’t find any reference in the minutes. In reviewing the conservation reco= rds for the original dredge and fill he said the easement didn’t show up = on the side of the property; the conservation easement was strictly at the bac= k of all the lots. Ms. Ouellette confirmed that the plan signed by the Board reflected an easement. Mr. D’Andrea answered yes and noted that it reflected as an existing natural area fully treed. Mr. Scanzani said he was sorry not= hing was found in the minutes, but said there was usually a reason why a no-cut easement would have been added.

Mr. Marsden showed the Bo= ard copies of Planning Board minutes from May 3, 1999, and a subdivision plan dated June 7, 1999. Mr. McNamara reviewed the highligh= ted portion of the minutes in which Mr. Meisner said a forested buffer and conservation setback had been added per the request of Conservation Commiss= ion; this was in reference to the area at the back of the parcel. Mr. D’Andrea said the letter= that was generated from the Conservation Commission to the Planning Board had similar language. He said the= plan before the Conservation Commission only included the area in the back and d= id not include the fifteen foot easement.&nbs= p; He felt it was a relevant for the Board to consider if they would ha= ve required a no-cut easement if they had been aware that the area was already= a lawn and irrigated.

Mr. Scanzani said there m= ust have been a reason for the easement and was not willing to remove it at this tim= e. Mr. McNamara reviewed the conserva= tion notes on the plan regarding the forested buffered area for lots 10 – 13.

Attorney Prolman expresse= d his frustration and felt that the Board would allow his client to put back a vegetative screening. Mr. Dan= evich noted that this was a no-cut area, not a no-plant area. Attorney Prolman said perhaps there needed to be an administrative call regarding exactly what the area was; ei= ther no-cut, or no-disturb. Mr. Sc= anzani said he wanted the easement to stay, but didn’t have a problem with t= he applicant planting trees. Mr. McNamara asked how the language in the deed read. Attorney Prolman read the FortR= 17;s deed aloud. The deed contained language that showed a clear intent for two separate areas. It was Attorney Prolman’s understanding that the easement was no-cut and not no-cut/no-disturb. Mr. D’Andrea wanted it to be= clear that the applicant’s proposed plan included lawn maintenance around t= he planted trees on the berm. He= said the applicant would be maintaining, in lawn fashion, the no-cut area.

Attorney Prolman confirme= d that through the discussion, the Board was differentiating between the no-cut and no-disturbance areas.

Mr. Scanzani made a motio= n to leave the easement as it exists on the plan; the deed indicates that the easement is just a no-cut in this location not a no-disturb. To allow the applicant per the restriction in the existing deed to plant trees, with the understanding that the applicant may maintain the trees, but not cut them. Mr. Danevich seconded the motion.<= span style=3D'mso-spacerun:yes'>

MOTION:

(Scanzani/Danevich) To = allow the applicant (Mr. Michael Fort), per the restriction in the existing dee= d, to plan trees, with the understanding that the applicant may maintain the trees, but not cut them.

VOTE:

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

Mr. D’Andrea wanted= to clarify that the applicant would be able to maintain as in accordance with = the plan presented before the Board. Attorney Prolman said Mr. Fort presented a sketch showing a small be= rm, a row of trees and a grassed area within the fifteen foot no-cut area. Mr. D’Andrea wanted to confi= rm when the property owner maintained it in accordance to the plan presented and vo= ted upon that was the agreed upon scenario.&nb= sp; Ms. Ouellette reviewed the request submitted to the Board, which was= to modify an approved subdivision plan; remove the no-cut easement along the property line. The Board said= they did not grant the request. The following motion was then made:

MOTION:

(Scanzani/DeLuca) To de= ny the request to remove the easement, as requested.

VOTE:

(6-0-= 0) The motion carried. The Board v= oted in the affirmative to deny the request to remove the easement.

Mr. Scanzani confirmed th= at the first motion stood, which allowed the applicant to replant and maintain.

Map 38 Lot 1-153 – Nealt (Gagnon), Theresa – = Sherburne Road – Modification to an approved Subdivision Plan – Proposed shared driveway per NHDOT driveway permit=

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.

Attorney David Groff, representing the applicant discussed the request with the Board. He said there was not sufficient s= ight distance at the proposed driveway location to satisfy the state. The applicant could not put the dr= iveway where they wanted without removing some trees on their neighbor’s property, which was not possible. It was proposed that the applicant put in a short common driveway to access the new proposed lot in the south east corner where there is an exis= ting driveway cut already. The oth= er condition is to remove the existing curb cut in the middle of the proposed = lot. The Town’s conditions were t= hat they come to an agreement with who ever buys the lot would be solely responsible for maintaining the easement area and not hold the Town respons= ible for any problems with access to the new lot over the common driveway.   Attorney Groff said there wa= s a note on the proposed plan that absolved the Town of any liability for the u= se of the common driveway; he also drew up an agreement regarding the subdivis= ion approval and the issuance of a permit with a common driveway setup.

Mr. Danevich felt the req= uest was ‘straight forward’. He said the only time the Board had granted a shared-access was when the state= had come back with a denial. He f= elt the proposed design met the exception criteria to grant a waiver and suppor= ted the request.

Mr. McNamara asked if any= one recalled why the Board approved a driveway without sufficient sight distance. Mr. D’Andrea said the condit= ion of approval was to obtain the necessary DOT driveway permit (which they didn’t have at the time).

There was no public input= .

Ms. Bousa said the DOT de= nied the driveway permit where it was proposed and questioned if there was another location along the frontage of the particular lot that could meet the requirements. Attorney Groff answered no. Ms. Bousa asked = what the sight distance was. Attor= ney Groff said the sight distance was less than four hundred feet (400ft.).

Mr. Mike Grainger, Engine= er for the project, said he met with DOT and the most footage they could get on the new lot was three hundred fifty three feet (353ft.) heading east. DOT said a common drive was needed= . Ms. Bousa wondered how it was pres= ented to the state because she couldn’t imagine them denying access to a property and telling them they had to share a driveway. Attorney Groff said if there was a= lot of record DOT would have to grant a curb cut, but if it the property was ow= ned next to the lot, they could make a person do what is being proposed. Ms. Bousa questioned if the Board = would have subdivided and allowed the lot knowing the condition.

Ms. Ouellette said there = was a waiver in the file and asked if the Board had to action on such. Mr. Danevich said the approval of = the subdivision request inherently approved the waiver request.

MOTION:

(Danevich/Scanzani) To = accept the proposed modification for consideration.

VOTE:

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

MOTION:

(Danevich/Scanzani) To = approve the application for a common/shared driveway accessing lot 1-153 with the agreement release regarding subdivision approval and building permit for = land on common driveway, conditioned upon acceptance by Town Counsel and execu= tion of the agreement.

VOTE:

(4-2-0) The mot= ion carried. Mr. DeLuca and Ms. Bousa voted n= o.

Attorney Groff questioned= who would sign the agreement on behalf of the Town. Mr. Danevich said either the Board= of Selectmen, or Town Counsel would sign the agreement.

Map 35 Lot 10-352-21 & 22 – Builders Land Co., LLC = 211; Susan Drive<= /st1:Street> – Proposed Lot Line Adjustment

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. Wes Aspinwall of Herb= ert Associates presented the plan to the Board. He said the subdivision had been d= one in June, 2001 for Neil Fineman. = At the end of Susan Drive, lot 21, the foundation had been installed too close to the set back line. The proposed plan showed a lot line revision between lots 21 and 22. Mr. Aspinwall said the same people owned several surrounding lots, w= hich enabled them to do a lot line change, rather than seeking a variance. He explained how the proposed lot = line was being shown and noted that the foundation would then be sixteen feet (16ft.) from the new lot line and conforming with zoning. He said it would be an equal area exchange with no impact on the minimum lot size, or negative impacts.

Mr. Danevich asked if it = would be an exact footage exchange or if the square footage calculations would need = to be updated. Mr. Aspinwall sai= d the area shown on the lots were correct. He reviewed the original subdivision and it was realized that the sq= uare footage calculations were different. Mr. Danevich said as part of any conditional approval the numbers wo= uld need to be updated. Mr. Aspin= wall said they would verify the correct numbers.&nbs= p; Mr. Danevich didn’t oppose the proposed change and noted that = the Board had done similar lot line adjustments in the past.

Mr. McNamara asked if the proposed change affected any well radiuses or septic placements. Mr. Aspinwall answered no. Mr. D’Andrea said he had ver= ified the information.

MOTION:

(Danevich/Scanzani) To = accept the proposed lot line adjustment for consideration.

VOTE:

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

There was no public input= .

MOTION:

(Scanzani/DeLuca) To ap= prove the proposed lot line adjustment subject to the engineer updating the pla= n to reflect the square footage on each lot based upon the lot line change.

VOTE:

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

Map 36 Lot 10-1 – Comeau, John & Olivia/Tuck Realty Co= rp. – Dutton Road – Conceptual Discussion for a proposed subdivision=

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.

Ms. Ouellette stepped down because she had an ongoing business relationship with the applicant.

Mr. Jonathan Ring of Jone= s & Beach Engineers, Inc., presented the conceptual design to the Board for dis= cussion. He said a plan presented by Eric Mitchell Associates had been presented to the Board in 2001 which showed a through road from Dutton R= oad with a cul-de-sac containing twenty four (24) lots. He said they had amended the plan = to divide the parcel as follows: 1) cul-de-sac (approximately 600ft. to beginn= ing of the bubble) entering from Dutton Road containing seven (7) lots; 2) extended cu= l-de-sac (approximately 1250ft. to the beginning of the bubble) from Brandy Lane containing eleven (11) = lots. Brandy Lane’s existing length= is approximately three thousand (3000) linear feet with twenty two (22) lots.<= span style=3D'mso-spacerun:yes'> Mr. Ring said they would propose a= fifty foot (50ft.) right-of-way to the south westerly side extending to abutting pieces of property that would allow the temporary cul-de-sac to be extended further and developed in the future to Hillcrest Lane. He noted that the plan showed four= small areas of wetland impact; each lot contained the required 35,000 SF buildabl= e contiguous land area; most lots can fit the 150ft.x100ft. area, but a couple of the lo= ts may need waivers. He asked for input from the Board.

Mr. Scanzani said the pro= posed extension to Brandy Lane would not meet the current regulations (number of homes or length). Mr. Ring believed the lot number a= nd trip count met the requirements, a waiver would only be needed for the length.

Ms. Bousa asked if the an= y of the lots were currently developed in the area that they were proposing the connection to Hillcrest La= ne. Mr. Ring said the properties were = not developed. Ms. Bousa said she= would like to see the true feasibility of the connection and if the land were sti= ll developable. Mr. Ring underst= ood what they would need to do to prove that a connection was feasible (i.e. ae= rial topography, preliminary wetland analysis).= He noted there was also a power line easement that the road may need= to go under.

Ms. Bousa noted that the regulations called for a secondary point of emergency access egress for a t= emporary cul-de-sac over twenty four hundred (2400ft.) and wanted to know if they had thought about where it would be located.&n= bsp; Mr. Ring was unsure if Brandy Lane had access and didn’t see where a second egress would be which would be discussed with the Fire Department. He said a waiver would be needed f= or the second egress.

Mr. Danevich understood t= he difficulty with connecting the left and right side of the parcel but believ= ed a longer term plan would be to connect back to Dutton Road. He felt the development of the abu= tting areas was ‘slim to none’. Ms. Bousa agreed.

Mr. McNamara said absent = some compelling reasons that he didn’t see, he would vote to deny waivers = for the extension of Brandy La= ne and the second egress. Mr. Ri= ng said the Mitchell plan showed the subdivision road connecting from Dutton R= oad to Brandy Lane, but the reason they showed an alternative plan with two cul-de-sacs was based on preliminary advice (from Jim Gove) because of the wetlands. Mr. Danevich said t= he Board had always given way to safety issues first.

Mr. Scanzani asked for the location of the power line easement. Mr. Ring showed where the power line easement was located and noted = it was approximately three hundred fifty feet (350ft.) wide. Mr. Scanzani asked when the origin= al plan was presented to the Board. Mr. Ring believe the plan was presented to the Board April 2, 2001. Mr. Scanzani asked what action the= Board took. Mr. Danevich said the B= oard didn’t do anything with the plan; it was conceptual. He noted that the cul-de-sac lengt= h at that time was five hundred feet (500ft).&n= bsp;

Mr. Danevich said he woul= d be interested in reviewing the lot size calculations and a plan showing the connection back to Dutton = Road. Mr. Scanzani noted that the area appeared to be wet and the soil types and wildlife would have a lot of impacts. Mr. Danevich noted t= hat one of the snowmobile trails was located on the parcel.

Ms. Ouellette returned to= the Board.

Map 14 Lot 4-137-14 – T= occi, Melissa/Growing Minds Childcare – General Home Occupation for Propose= d Daycare

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.

Ms. Ouellette stepped dow= n so that there was no appearance of a conflict of interest since she owned a daycare.

Mr. Mark Tocci representi= ng Growing Minds Childcare met with the Board to discuss the application. He said his wife currently ran the program as legally license exempt and would like to expand the program to b= e a nursery program. He said a Sp= ecial Exception had been granted by the Board of Adjustment (Case #2287) conditio= ned upon limitation of twelve children and no signage. (It was noted that the B= oard of Adjustment’s placed a limitation of ten children). He said they had made modification= s to their basement and turned it into a classroom. He noted that Health Inspector, Pa= ul Zarnowski had reviewed and approved, with the exception of permanent heating being installed by October 1, 2004. Mr. Tocc= i also noted that Fire Inspector John Hodge had given approval based upon a second egress being put in. He said = a site plan had been submitted to the Board showing the driveway/drop-off area, the play yard and separation to the pool. He explained how the second egress would be installed.

Mr. Danevich asked if wri= tten comment from the Fire Chief had been received. Mr. D’Andrea answered no. Mr. Danevich said any approval wou= ld be subject to receipt of written comment by the Fire Chief. He assumed that the state would fo= llow through on all the normal legal/permit procedures for daycares. Mr. Danevich asked if there was additional lighting. Mr. Tocci explained where the current lighting was located, which would be manually turned on and off. Mr. Danevi= ch confirmed the hours of operation. Mr. T= occi said the hours of operation would be between 7:30am – 5:30pm, with some people coming aroun= d 6pm.

Mr. Tocci informed that h= e had received written approval from both Health Officer Paul Zarnowski and Fire Inspector John Hodge. He said= the state inspection would occur in the next week.

MOTION:

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

VOTE:

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

There was no public input= . Mr. Tocci said he would provide the written approvals to the Planning Director.

MOTION:

(Scanzani/Danevich) To = approve the plan, subject to the applicant dropping off written approvals (of the Health Inspector and Fire Inspector) to the Planning Director.

VOTE:

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

Ms. Ouellette returned to= the Board.

DISCUSSION

Subdivision Regulations – General Design Principles and Standards, Lot Shape, Driveway Access an= d Road Design

Deferred to a meeting in September, 2004.

MINUTES

July = 8, 2004

MOTION:

(Danevich/Ouellette) To= approve the July 8, 200= 4 meeting minutes as amended.

VOTE:

(4-0-= 2) The motion carried. Mr. Scanzan= i and Mr. DeLuca abstained.

July = 19, 2004

MOTION:

(Ouellette/Danevich) To= approve the July 19, 2= 004 meeting minutes as amended.

VOTE:

(4-0-= 2) The motion carried. Mr. Scanzan= i and Mr. DeLuca abstained.

ADJOURNMENT

MOTION:

To adjourn the meeting.=

VOTE:

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

The meeting was adjourned= at approximately 10:23 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