Meeting Minutes
Planning Board
June 16, 2020
Approved July 21, 2020
Board Members Present through Microsoft Teams Teleconference: Bruce Healey, Chair; Michael Beaton, Vice Chair; Richard Wright, Christopher Hernick, Darren Finneral, Joanne Lord, Members; Russell Smith, Ex-Officio Member, Deane Geddes, Alternate.
Public Present through Microsoft Teams Teleconference: Jim Lord, Judy Healey, Ken Holmes, Peter Tenant, Matthew Peterson, Katheryn Holmes, Peter Fichter, Hank Thomas, Rudi & Jennifer Franklin, Lucy Pivonka, Ivor Freeman.
Mr. Healey called the meeting to order at 7:00 p.m.
Mr. Healey read into the minutes the following meeting preamble due to the current Covid-19 emergency to be in compliance with RSA 91-a: Good Evening, as Chairman of the Town of Newbury Planning Board, I am declaring that an emergency exists and I am invoking the provisions of RSA 91-A:2, III (b). Federal, state, and local officials have determined that gatherings of 10 or more people pose a substantial risk to our community in its continuing efforts to combat the spread of COVID-19. In concurring with their determination, I also find that this meeting is imperative to the continued operation of Town government and services, which are vital to public safety and confidence during this emergency. As such, this meeting will be conducted without a quorum of this Board physically present in the same location. We are utilizing Microsoft Teams for this electronic meeting. We previously gave notice to the Board members and public of the necessary information for accessing this meeting.
At this time, I welcome members of the Board and public accessing this meeting remotely. Even though this meeting is being conducted in a unique manner under unusual circumstances, the usual rules of conduct and decorum apply. I ask that each Board member or public who wishes to speak, please state your name each time prior to speaking. Further, any person found to be disrupting this meeting will be asked to cease the disruption. Should the disruptive behavior continue thereafter, that person will be removed from this meeting. Please note, this meeting is being recorded and that all votes that are taken by the Board during this meeting shall be done by Roll Call vote. Let’s start the meeting by taking a Roll Call attendance of Board & Board Support members. When each Board member announces their presences, also please state whether there is anyone in the room with you during this meeting, which is required under the Right-to-Know law. I will announce the Board member & Board support names:
Members:Joanne Lord
Mike Beaton
Darren Finneral
Deane Geddes, Alternate
Chris Hernick
Russ Smith, Selectboard Ex-officio
Dick Wright
Bruce Healey
SupportTiffany Favreau, Meeting Coordinator/Recording Secretary
7:05 p.m. Fire Station Building Committee-Review of Fire Station Plans
Ken Holmes-member of safety services building committee, Peter Tenant-Architect from Tenant Goucher and Matthew Peterson-Senior Project Manager from Keach-Nordstrom Associates reviewed the new fire station plans with the Board.
Mr. Holmes thanked the Board for their time. Mr. Holmes said the plans are quite complete at this point and going out to site subcontractors for bidding. Mr. Holmes continued that the plans are pretty much what was presented at Town Meeting other than two differences. Mr. Holmes said that on the site plan originally there was an intent to provide a third curb cut onto Route 103 to the second parking lot of the fire station and the primary parking lot for playground and visitors to the Vets Memorial. Mr. Holmes continued that due to sight lines that are required by the State they could not provide the third curb cut so the site plan moved forward with two curb cuts. Mr. Holmes noted that the North curb cut, the one closer to the library very distinctly separates into a parking lot versus the access drive to the fire station.
Mr. Holmes said the other slight modification to what waspresented before is due to ledge, cost and water. The parking lot configuration and apron on the south side was slightly modified to reduce the impact into the hillside and to reduce the height and amount of retaining wall required. Mr. Holmes stated all the engineering has been completed, the septic system is fully designed, the stormwater retention system is underneath the north parking lot. Mr. Holmes continued that the size and configuration of the building is exactly what was presented to the voters back in March.
Mr. Healey commented that there was a note on the existing condition plan about easement rights or restrictions. Mr. Healey asked if there were any easement rights or restrictions that were not known for this property. Mr. Peterson said that is a standard note that surveyors put on plans. Mr. Peterson continued that there are things like the septic system that was up in the disposal area, the gravel access road, the driveway used to be the old 103 through that, things like that the surveyor brings reference to.Mr. Peterson said at the present time there is nothing stopping the Town from moving forward.
Mr. Healey noted that on the Removal Demolition Plan there shows a removal of a part of the Vets Memorial walkway on the west side. Mr. Healey asked how much of the walkway would be removed and if the landscaping would be disrupted. Mr. Healey continued that on another plan the walkways look to be restored and longer. Mr. Healey asked if the Veterans were informed of the changes and did they participate in the reconfiguring of the walkway. Mr. Holmes said he has a meeting with the Veterans, who had opted to wait until a physical meeting could be held to see the plans. Mr. Holmes said the removal of the walkway and landscaping is specifically for the installation of utilities required for the project and then restoration of the walkway. Mr. Holmes said the change in configuration is to provide public access from the parking lot and the sidewalk to the Memorial.
Mr. Healey noted that one of the plans said future landscaping provided by the Town. Mr. Healey asked does that mean in the cost, there is no landscaping and the Town has to come up with the funds to landscape when construction is done. Mr. Holmes said that these documents are bidding documents for site sub-contractors and the site sub-contractors are not responsible for any landscaping other than loam, seed and erosion control. Mr. Holmes continued that the construction manager is carrying a modest allowance for landscaping but there is not a landscape plan.
Mr. Healey noted on the utility plan on the west or to the edge of the effluent system there is a 4 inch PVC pipe that comes out of the library runs along the road and up the edge of the septic system. Mr. Healey asked what’s the distance between that pipe and the east edge of the library. Mr. Peterson said it was approximately 110 feet. Mr. Healey wanted to clarify that enough room was left for any future library expansion. Discussion followed.
Mr. Healey noted that on the lighting plan he counted 11 poles. Mr. Healey asked if attention will be paid to the Zoning Ordinances to stay compliant with the exterior lighting. Mr. Holmes said the electrical engineer worked very quickly to get the lighting plan to the Board for the meeting, so it is preliminary. Mr. Holmes continued the light poles are to match the poles at the Town office and library. Mr. Holmes said that he has received the lighting plans and they intend to comply with the regulations.
Mr. Healey asked what the expected completion date of the building is. Mr. Holmes said they are hoping to break ground in July and hope to be done sometime next year.
Ms. Lord said that when the Town approved the firehouse, it was with the understanding that the Vets Memorial would not be touched. Mr. Holmes said that the Vets Memorial will not be touched, the only area that will be disturbed is at the ends of the existing walkways and the intention was always to incorporate the walkways into whatever plan was developed for the property. Discussion followed.
Mr. Wright asked what the capacity of the detention system is. Mr. Peterson said it was designed for the 2, 10, 25- and 50-yearstorms. Mr. Peterson continued there is an existing 15-inch pipe that goes under 103 and a 12-inch pipe that leads to it, so the system is designed to minimize runoff pre and post.
Mr. Wright asked what the leach field size and type was. Mr. Peterson said it is approximately 50’ long by 10’ wide. Mr. Wright asked if that could possibly be expanded for a potential tie-in with the library expansion. Mr. Peterson said he was not a septic designer and he would have to get the answer. Discussion followed on wall construction.
Mr. Hernick said the plans look really good, coming from another engineer. Mr. Hernick noted a couple of spots where the grading looks a little flat on the west driveway for water movement to get to proposed catch basins 7 & 8. Mr. Peterson said he will take a look at that.
7:30 p.m. Conceptual Consultation-Adventure Lifestyle LLC-B&B & Therapeutic Spa, 2 West Province Rd.-Referred to the Planning Board by the SelectBoardconcerning zoning ordinance issues.
Mr. Healey said this conceptual consultation has a very specific purpose but wanted to give some history of the property. Mr. Healey continued that in 2004 the Planning Board approved a B & B with four (4) guest rooms at the 2 West Province Rd. location, in 2016 the Planning Board had a conceptual consultation with the Franklins for two purposes: 1) they wanted to add a use to the approved B & B for a therapeutic spa and 2) expansion of a deck in the back of the building. Mr. Healey said at the 2016 conceptual consultation the Planning Board told the Franklins that a Special Exception for the use and a Variance for the deck, because of the very close proximity to Johnson Brook would be needed from the Zoning Board of Adjustment. Mr. Healey said that this property sits in the Shoreland Overlay District and is subject to those regulations and also the buildings are considered non-conforming because they are approximately 10’ from the Brook. Mr. Healey continued that the regulations state a 75’ setback.
Mr. Healey noted that the Franklins are well aware there are zoning provisions associated with their buildings and theyapplied for the Special Exception and Variance 10 months later and the ZBA granted both.
Mr. Healey said that in February 2020 the Town hired a new Code Enforcement Officer, having had 4 CEOs in the last 10 years. The CEO was made aware that construction was going on at 2 West Province Rd. and asked for a new building permit application. On 4/15/2020 after the land use review of the building permit application it was discovered the building permit was approved in error by the new CEO who was not aware that the Shoreland Overlay District included streams and brooks and that the buildings on this property are non-conforming. Mr. Healey continued that on 5/15/2020 the CEO issued a cease and desist. On 6/8/2020 Mr. Franklin met with the SelectBoardasking for the cease and desist to be removed. Mr. Healey stated that the SelectBoard had asked him to join this meeting with Mr. Franklin. Mr. Healey said his position was even though the new building structure was on the same footprint it was an expansion of the building structure. Mr. Healey continued that it was going from 334 square feet to 668 square feet. Mr. Healey said that Mr. Franklin disagreed that there was any building expansion and the SelectBoard decided to move the discussion and decision to this Planning Board meeting.
Mr. Healey said that he asked the Zoning Board Chair, Peter Fichter, to join the meeting.
Mr. Healey referenced Article 15.2.1 in which anything that makes a non-conforming building more non-conforming, in this case an expansion of the building, requires a variance. The ZBA has consistently interpreted that an expansion of a non-conforming building makes the building more non-conforming and a variance is needed. Mr. Healey noted that the ZBA had 3 variances under 15.2.1 in 2019. Mr. Healey asked if Mr. Fichter agreed.
Mr. Fichter said he was attending this meeting as a private citizen, although he is Chairman of the Zoning Board his comments and opinions do not necessarily reflect the opinions of the rest of the Board. Mr. Fichter continued that it is a consensus of the Zoning board that determines what the outcome is. Mr. Fichter said that he is in agreement that if a non-conforming building increases usable living space it is increasing the non-conformity of the building and will require a variance to cover that.
Mr. Franklin said there was a big difference of opinion when it comes to how things are interpreted. Mr. Franklin continued that the building inspector/CEO prior to the current one issued a building permit. Mr. Franklin asked what is the Board’s definition of expansion. Mr. Franklin continued that the deck was an expansion because it expanded horizontally, and the footprint was changed. Mr. Franklin said the current construction is not expanding the footprint at all. Mr. Franklin noted there are no examples of what makes a building more non-conforming.
Mr. Fichter said that all of the Town’s ordinances are created to try and cover as many factors as may be involved in a particular situation. It is acknowledged that the ordinances are not necessarily perfect. Mr. Fichter continued that one of the functions of the Planning and Zoning Boards is to make an interpretation of what an applicant may wish to do and how it applies to the ordinances. Mr. Fichter said by state statute the boards are quasi-judicial, which means it is the boards job, to the best of their ability, to interpret regulations that have been set forward and apply them to the particular case at hand. Mr. Fichter said that Mr. Franklin should seek a variance with the full Zoning Board and the opportunity to present his perception.
Mr. Franklin said that he was going to enforce section 676 of the NH RSA. Discussion followed. Mr. Franklin said he was going to read chapter 676 of the State of NH and reminded everybody that whatever the State of NH decides is binding upon the Town of Newbury. Mr. Franklin asked would you agree. Mr. Fichter said that he thinks there is room for different interpretations and one of the avenues for those different interpretations is the judicial process. Mr. Fichter gave an example that if an applicant seeking a variance from the Zoning Board feels the decision was not correctly adjudicated, that applicant has the right to 1) ask for a rehearing from the Zoning Board and 2)subsequent to asking for a rehearing, file an appeal with the NH State judicial system. Mr. Fichter continued those are still avenues available to all citizens who feel an injustice was done in their particular case and the final view would be that of the judicial body of the State. Discussion followed.
Mr. Healey said the SelectBoard has asked the Planning Board to discuss this matter and make a decision whether the Planning Board agrees with the cease and desist order that was issued by the Code Enforcement Officer on May 15, 2020.
Mr. Franklin said that chapter 676 of the State of New Hampshire, section nine says no building permit shall be issued until a certificate of approval has been filed with the building inspector, but in the case of this approval, notice of this approval shall be binding upon the building inspector or other (unintelligible) authority, no permit shall be issued. Mr. Franklin continued, failure to file the certificate within the specified period of time shall constitute approval by the commission. Mr. Franklin said that if this case goes to court, they will approve it and the cease and desist order was issued incorrectly because the cease and desist has to qualify with certain regulations and they have not been complied by the building inspector. Mr. Franklin continued the order shall state in writing precise regulation,provision, specification or condition which has been violated, the facts constituting the violation including the date of the inspection the facts were ascertained, the corrective action required including a reasonable time within such action shall be taken. Mr. Franklin said therefore the cease and desist order is non valid.
Mrs. Lord asked how the permit was approved in the first place. Mrs. Lord continued that because Mr. Franklin talked about the judicial branch, she would have to recuse herself from any votesin this one matter, because she works for the judicial branch citing a conflict of interest. Mr. Healey said that it used to be the building inspector needed to know plumbing and electrical, however increasingly in the last six years knowledge of the Town’s Zoning Ordinance became more important and it is very important today that the Code Enforcement Officers really understand the Town Zoning Ordinances including the Planning Board regulations associated with business and subdivision. Discussion followed.
Ms. Holmes said the Conservation Commission was concerned about the setbacks from Johnson Brook.
Mr. Healey clarified that Mr. Franklin was not interested or willing to pursue a variance. Mr. Franklin said that was correct and they were within their rights. Discussion followed.
Mr. Wright made a motion for the Planning Board to recommend through the Code Enforcement Officer to rescind his cease & desist order on the Franklins. Mr. Beaton seconded.
Mr. Hernick said that Mr. Franklin brought up RSA 676 on cease and desist orders and reading through the RSA, the cease and desist order does not meet the State RSA. Mr. Smith asked how the cease and desist order was not written correctly according to the State regulations. Mr. Hernick quoted from RSA 676:17-A The order shall state in writing a) precise regulation, provision, specification or condition which has been violated, b) the facts constituting the violation including the date of any inspection from which these facts were ascertained, c) the corrective action required including a reasonable time within such action shall be taken and it continues from there. Mr. Hernick said the cease and desist he was looking at does not contain timeline and doesn’t specify the precise regulation which is being violated. Mr. Hernick said that he is not sure where he stands on the overall issue of is this an expansion or not but that is the Zoning Board’s position to take and not the Planning Boards. Mr. Healey said the cease and desist order states 15.2.1 as the specific regulation. Mr. Smith agreed the cease and desist does not follow the proper procedure.
Roll Call Vote:
Mike Beaton-Aye
Darren Finneral-Aye
Chris Hernick-Aye
Russ Smith-Aye but not because of what is being said but only because the cease and desist was not filed properly
Dick Wright-Aye
Bruce Healey-Nay
Motion carried.
Update status of Board Advisor
Mr. Healey said he has not been able to come to an agreement with Upper Valley as to their services. Mr. Healey continued that he was not sure a recent college graduate in sustainable development and climate change and who has never been an advisor to a Board is the right choice for this Board. Mr. Healey said Mr. McWilliams has agreed to support the Planning Board remotely for the remainder of 2020 to give more time to figure out an advisor.
Mrs. Lord made a motion that Mr. McWilliams be the Board’s advisor remotely for the remainder of the year to give Mr. Healey time to find a replacement. Mr. Smith seconded the motion.
Roll Call Vote:
Joanne Lord-Aye
Mike Beaton-Aye
Darren Finneral-Aye
Chris Hernick-Aye
Russ Smith-Aye
Dick Wright-Aye
Bruce Healey-Aye
All in favor.
Minutes:
The Board reviewed the amended minutes of April 21, 2020.
Mr. Smith made a motion to accept the minutes as amended. Mr. Wright seconded the motion.
Roll Call Vote:
Joanne Lord-Aye
Mike Beaton-Aye
Darren Finneral-Aye
Chris Hernick-Aye
Russ Smith-Aye
Dick Wright-Aye
Bruce Healey-Aye
All in favor.
The Board reviewed the minutes of May 19, 2020.
Mrs. Lord made a motion to accept the minutes as submitted. Mr. Smith seconded the motion.
Roll Call Vote:
Joanne Lord-Aye
Mike Beaton-Aye
Darren Finneral-Aye
Chris Hernick-Aye
Russ Smith-Aye
Dick Wright-Aye
Bruce Healey-Aye
All in favor.
CIP Committee
Mr. Healey said one of the Planning Board’s role is the Capital Improvement Plan. Mr. Healey continued that there is a long history of a committee chaired by Ivor Freeman and usually the Planning Board has two members on the CIP Committee along with other Town residents asked to participate. Mr. Healey said the committee meets with the department heads with the intent to review prior years and estimate capital expenditures to be made in the next six years and delivers the plan to the Planning Board to adopt and send as a recommendation to the SelectBoard to set warrant articles on capital expenditures.
Mr. Healey asked if there were two members of the Planning Board that would like to be on the CIP Committee. Mrs. Lord said she would like to be on the committee. Mr. Wright said he would like to be on the committee.
Proposed amendment-Site Plan Review-Protection of Historic & Cultural Resources
Mr. Healey said that in the Master Plan, as a high priority, there was a requirement that developers, during Site Plan Review,identify any historic and cultural resources found on the property. Mr. Healey continued that in the Subdivision Regulations, there are already provisions for the protection of historic and cultural resources and the Master Plan committee recommended that those regulations were modified and put into Site Plan Review. Mr. Healey said that this is a proposed amendment to the Major Site Plan Review regulation which requires a public hearing to be scheduled, but before the public hearing it is the Planning Board’s decision to adopt this amendment which would be 4.9. Mr. Healey asked if the Board would like another month to look the amendment over or to move forward with the public hearing.
Mr. Wright said he would like another month to read it over. The Board agreed.
Discussion-creating a subcommittee to explore potential zoning amendments to support new housing alternative
Mr. Healey asked Mr. Wright if he wanted to talk about where the Board might be in creating a subcommittee to explore potential zoning amendments for new housing alternatives. Mr. Wright said he would like to see where we are with Covid-19. Mr. Wright said something like this you need to interact personally and not over the phone and more information needs to be looked at and shared. Mr. Wright continued that the number of people on the subcommittee needs to be decided. Mrs. Lord said she would be on the subcommittee. Mr. Hernick said he will be on the subcommittee.
Mr. Healey said he is relatively sure that the Planning Board meeting in July will be able to be held at the Town office.
Mr. Smith made a motion to adjourn. Mr. Beaton seconded the motion. All in favor.
The meeting adjourned at 9:12 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary
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