Planning Board Minutes

Planning Board

August 20, 2019

Approved – September 17, 2019

Members Present:  Bruce Healey, Chair; Michael Beaton, Regina Cockerill, Howard Maurer, William Weiler, Richard Wright, Members; Russell Smith, Ex-officio Member.

Mr. Healey called the meeting to order at 7:00 p.m.

Minutes:

The Board reviewed the minutes of July 16, 2019.  Corrections were made. Acceptance of minutes was tabled for Ms. Favreau to listen to audio and add a comment of Mr. Geddes for CBI Properties, LLC.

Administrative Business:

Review of Adventure Lifestyle, LLC site plan & letter:

Mr. Healey said that Ms. Favreau was able to find the records for Adventure Lifestyle where they came before the Planning Board and the Board approved a Bed & Breakfast and therapeutic spa at 2 West Province Rd. Mr. Healey read into the record a letter he sent to the Franklins:

The Newbury Planning Board, at a Conceptual Consultation held on July 16, 2019, discussed with you and Mrs. Franklin your business plans for property in the business district located at 2 West Province Rd., Newbury, NH: Newbury Tax Map: 007-419-072

You stated your business plan for that location is to operate a Bed & Breakfast and Therapeutic Spa which had been approved by the Planning Board approximately 15 years ago. This was new information to the current Board members, but subsequent review of town records found a Site Plan and Notice of Decision dated March 15, 2005 that approved a use of the property as a Bed & Breakfast and Therapeutic Spa. Accordingly, no further action on your part is required with the Planning Board.

Please note however that all conditions of approval contained in the Notice of Decision issued on March 15, 2005 to operate a Bed & Breakfast and Therapeutic Spa still apply to use of this property. Attached please find a copy of this decision.

Mr. Healey said the conditions of approval were that there would only be 4 guest rooms and 1 owner’s quarters; that they provide a state approved septic system plan, which they did and it is on record; fire department approval; code enforcement officer approval of building plans and construction, which we have; and police sign off. Mr. Healey continued that he reviewed the plan to make sure the building was built on the existing footprint and it is pretty close, they actually went up but stayed within the footprint. Mr. Beaton asked if a special exception is valid for 15 years. Mr. Weiler said that a special exception goes with a property, unless you enact some legislation to give it a term limit. Mr. Beaton asked what was it that the Board enacted term limits for. Mr. Healey said that was for a variance or special exception that you don’t act on within two years, they become void. Mr. Smith said that it has been used as a B&B and spa during that time.

CIP:

Handout to Board-attached to these minutes. Mr. Healey said that for all intents and purposes the CIP has been completed. Mr. Healey continued that the CIP is the Planning Board’s recommendation to the SelectBoard and sometimes recommendations in the CIP are either changed or not accepted by the SelectBoard, and in his experience 99 times out of 100 the SelectBoard accepts the recommendations of the Planning Board and the CIP. Mr. Healey said that this year there are some things in flux, and the CIP Chair decided he didn’t want to do anymore work on the CIP and he didn’t want to hold it open. Mr. Healey continued that because it is simply a recommendation and there is no determination as to when the SelectBoard may make a decision on some of these items, he agreed to accept the CIP but, we have until October 15th for the Planning Board to formally adopt the CIP. Mr. Healey said that he will leave it open until then, but since it is essentially done and available, he is distributing it for the Board’s review. Mr. Healey continued that the CIP will be on the October 15th agenda to discuss and finalize. Mr. Maurer said that as a member of the CIP Committee, he does not recall any items being open. Ms. Cockerill said that the library is not sure what they want to ask for. Ms. Cockerill continued that after a discussion about fundraising, the library is concerned that the $850,000 may not be a strong number and there have been some requests about changing the number. Ms. Cockerill said there is still quite a bit of discussion between the Library Trustees. Mr. Healey said the handout is the final report unless on October 15th the Planning Board should modify the report. Mr. Beaton asked if the Planning Board should discuss it in September to allow for any modifications. Mr. Healey said they could do that; Mr. Freeman might not be available, but Ms. Cockerill could talk.

7:15 p.m. Case 2019-008 Conditional Use Permit– Frank Anzalone (agent) for Scott & Judy Mather (owners), for property located at 220 Bowles Rd., Newbury, NH Tax Map 016-544-079.

Mr. Healey read into the record the following Public Notice: Notice is hereby given that the Planning Board will receive submission of an application from Frank Anzalone (agent) for Scott & Judy Mather (owners) for a Conditional Use Permit for land disturbance in the wetland buffer concerning placement of a proposed driveway and portions of a proposed dwelling located at 220 Bowles Rd, Tax Map 016-544-079 on Tuesday, August 20, 2019 at 7:15 p.m. in the Town Office Building at 937 Route 103 in Newbury, N.H.  If the application is accepted as complete, a public hearing on the accepted application will commence at the same meeting. Copies of the plan are available for public review at the Town Office Building during regular business hours.  Business hours are as follows: Monday, Tuesday, Thursday, and Friday from 8am to noon.

Mr. Healey reviewed the application for completeness. Mr. Healey made a motion to accept the application as complete. Ms. Cockerill seconded the motion. All in favor.

Mr. Healey said that Board does not do a lot of conditional use permit applications. Mr. Healey continued usually when an applicant is looking for a variance or some right associated with something that is protected or has local regulations associated with it they go usually to the ZBA for a special exception or a variance before coming to the Planning Board. Mr. Healey said that in the case of a conditional use permit the way Newbury’s regulations have been written, the Planning Board has sole authority and the applicant does not have another avenue other than Superior Court. Mr. Healey continued that there are three standards that need to be met and each one of the standards will be voted on and if any one standard fails the conditional use permit request fails. Mr. Healey reminded the Board what the standards are: 1) the use cannot be implemented outside of the wetland buffer; 2) the location in the wetland buffer will cause the least impact; and 3) the method of implementation will minimize the impact to the wetland buffer. Mr. Healey said for each one of the standards the Board members need to be satisfied that each is met. Discussion followed.

Mr. Healey said that one of the things the Planning Board is advised to do when it gets a Conditional Use Permit is to ask Conservation to review the application. Katheryn met with the applicant and is here tonight to represent Conservation. Mr. Healey showed the Board the property on the Town GIS database.

Frank Anzalone (agent) presented to the Board that he was the architect of record and represented Scott and Judy Mather who bought the property to build a home on it. Mr. Anzalone said the property slopes from across Bowles Road down to the lake and when Bowles Road was placed there were several culverts across the street which has created wetlands to the whole west side of the property. The wetlands and the setbacks have reduced buildable area on the lot, there is also an area that does not fall into steep slopes by Newbury regulations but is a steep section of the property, all this has reduced where the driveway, house, leach field and septic system can be located. Mr. Anzalone said that they have filed a buffer tree cut application for cutting outside of the 50’ waterfront buffer. The house will be a one story with a walk out and an attached 2 car garage. They have tried to locate the driveway as far as they could from the wetlands, but site topography and the leach field location has restricted driveway location. Mr. Anzalone pointed out the driveway and its relation to the wetlands from the plan and the best option location of the leach field which is downhill and adjacent to the wetlands. Mr. Anzalone said to prevent rainwater from coming off the driveway and into the wetlands they have created a swale and a low retaining wall to collect the water, the swale runs along the driveway and then into a stormwater level spreader. The middle of the circular driveway is a raingarden that will collect water that lands in that area. All the drip edges around the house will be collected through a pipe and drainage system with crushed stone and stored under the stone patio so all of the runoff will be collected and stored on site, everything is sloped to keep it from running into the wetlands. Ms. Holmes asked if Mr. Anzalone meant filtered instead of stored. Mr. Anzalone said when he says stored it is a simple system with a large bed of crushed stone with the filter fabric around it and designed to handle a certain storm and if it exceeds its capacity it will filter it out. Mr. Anzalone continued that the whole purpose of this is to absorb on site and let it get into the ground through the raingarden, through the storage under the patio and through the stormwater level spreader. Mr. Anzalone said that unfortunately you can’t build on this property without being in the setback, you have to cross the wetland buffer in order to locate a driveway. DES have requirements as far as unaltered or natural woodland of 25% and the Town’s is 38% and we are at 47%. We are doing everything we can to not disturb that wetland and respect the lake.

Mr. Smith asked for clarification on if it was a one-story building. Mr. Anzalone said it was a walk out so a two story. From the driveway you see one story, from the lake you see two stories. Mr. Anzalone continued that they have done what they could to minimize the impact on the buffer and there is no impact to the wetlands.

Mr. Beaton asked what the square footage was. Mr. Anzalone said he thinks the footprint is 2200 square feet not including the garage. Mr. Healey asked what the garage square footage was. Mr. Anzalone said the garage is 26 X 28. Mr. Healey said the square footage of the buildings are approximately 3000 square feet. Mr. Anzalone said the square footage is in the 2700-2800 range and that is fairly comparable with the neighboring properties. Mr. Healey asked how many square feet is the wetlands. Mr. Anzalone said the wetland is about 17,000 square feet. Mr. Smith asked if the wetlands was on both sides of the house. Mr. Anzalone said there is a

small patch of wetland at the south east corner as well. Mr. Healey asked what the total alteration of terrain was going to be. Mr. Anzalone said the existing was 24,000, the proposed natural woodland left in place is almost 12,000 so the alteration of terrain is about 12,000.

Mr. Healey asked if the driveway was going to be paved. Mr. Anzalone said from the street to the circle will be crushed stone and the circle itself will be paved. Mr. Healey asked if there will be any culverts under the driveway coming in. Mr. Anzalone said no. Discussion followed on aspects of the plans submitted.

Ms. Holmes asked if she could jump in and cover what the Conservation Commission talked about. Ms. Holmes continued that Conservation has some concerns about the wetland and she has not seen a delineation of the wetland. Mr. Maurer asked doesn’t it say on the plan that the wetland was certified. Mr. Anzalone said yes, the wetland was mapped and identified, there have been two soil scientists out there. Discussion followed.

Mr. Healey said that a wetland buffer for the Planning Board is almost always about recognizing that someone has a right to use their property and they need to either use or cross a wetland buffer in order to access the property. Mr. Healey continued that part of what was being asked for was reasonable, but not sure it was reasonable to build in the buffer, the State wouldn’t allow you to build in the wetland, but the State does not regulate the wetland buffer, it recommends that local regulations set up buffers to further protect a wetland, the buffer for Newbury is 75 feet. Mr. Healey said that the plans submitted honor the 75-foot lake and front and side setbacks, but you want to build in the buffer, why are you asking the Planning Board to accept that. Mr. Anzalone said that there is really no choice. Mr. Healey said that is supposed to make the least impact on the wetland buffer and asking to put a structure is not the least impact. Mr. Healey asked if anything could be done with the design to address placing structure in the buffer. Mr. Anzalone said they could take a better look at that and maybe deal with some slopes and move the house outside of the setback and asked that if they did that would the Planning Board be accepting to grant the  use of the driveway in the setback tonight. Mr. Healey asked the Board if anyone else had concerns about what was being asked for. Mr. Smith said yes. Mr. Weiler said the driveway part is a use which may be considered. Mr. Weiler continued that the issue he thinks Mr. Healey is after is if the first standard can be met, the[TF1]  use cannot be implemented outside the wetland buffer, so that is the question they need to answer. Mr. Anzalone said that if the house is pushed outside of the buffer, the natural woodland buffer will be impacted, so it is a balance. Ms. Holmes asked about Article 8-Wetlands Conservation Overlay District and read 8.1.1, Restrict the development of structures and land uses on naturally occurring wetlands, which will contribute to pollution of surface and ground water by sewage, toxic substances, or sedimentation. Ms. Holmes continued that it is our responsibility to try and protect wetland areas around out waterbodies. Mr. Anzalone said as far as controlling the sediment during construction, there is an erosion control plan in place using silt fences and the way the whole site has been designed, there is a clear separation between the wetland and the house. Mr. Anzalone continued that they have basically made it so that no erosion or contaminants from the house or driveway will go into the wetland. Discussion followed.

Mr. Smith wanted to know if they could ask for a site visit. Mr. Healey said that is probably a good idea but doesn’t know how the Board feels. Mr. Healey said that a site visit would delay this process and this hearing would have to be continued for another month. Mr. Smith said this is either a yes or no right now, and he would like to go and see it for himself. Discussion followed. Mr. Maurer said he lives around the corner from the parcel and doesn’t need a site visit. Mr. Maurer asked about underground containment as part of stormwater management. Mr. Anzalone said we are collecting it along the driveway, the raingarden collects it also and a level spreader where it gets spread out through crushed stone and back into the ground. Mr. Anzalone said there are no tanks for storage, but the rainwater is collected under the patio. Mr. Wright asked how deep. Mr. Anzalone said deep enough to grab the rainwater from the roof, it is based on volume but does not have the details right now. Discussion followed. Mr. Healey asked the Board what they thought about a site visit. Mr. Maurer said he did not need a site visit, Mr. Wright said yes to a site visit, Mr. Weiler said no to a site visit, Mr. Beaton said yes to a site visit, Ms. Cockerill said yes to a site visit if they have it. Mr. Anzalone said a site visit would mean the loss of a month which would mean starting foundation work in the spring instead of the fall and construction all summer instead of spring. Discussion followed.

Dan Wolf said that he has heard the use of the term natural wetlands. Mr. Wolf continued that he has lived opposite or right around the corner from the parcel for 54 years and does not believe that it is a natural wetland, the culverts that were put in changed the whole drainage of that area and the culverts created some of the perceived wetlands. Mr. Wolf said the hemlock and birch trees were there before the wetland was created. Ms. Cockerill asked if wetlands were important even if they are manmade. Ms. Holmes said wetlands evolve and she does not know how many years ago the culverts were taken out. Mr. Anzalone said the culverts are there. Ms. Holmes asked what size the culvert was. Mr. Beaton said 12 inch. Mr. Smith said that is not big enough for a 100-year storm now. Mr. Wright said the criteria would be to look at that today and see if you get your feet wet if we haven’t gotten any rain. Mr. Anzalone said it was very dry. Mr. Wright said if it was very dry now, a wetland stays wetland. Mr. Anzalone said that the wetland scientist outlined that even though it is dry there is still evidence that it was wet. Mr. Anzalone said that normal wetlands have vegetation in it, this has very limited vegetation other than a very small patch, but it is the way the trees have adapted. Discussion followed.

Scott Mather said they bought this lot last April, did their due diligence, was dry as could be when purchased, it is dry today. Mr. Mather said they are a year behind already where they had anticipated completion this year, they are respectful of the lake, moved from Connecticut to be closer to their children. Mr. Mather said the current situation was unforeseen and we are respecting policies. Discussion followed.

Mr. Anzalone said they have shaped it to fit the property, they can make an attempt to move the house outside of the setback, but it really will decrease the natural woodland buffer right down to the minimum. Discussion followed. Mr. Maurer asked about going up another story to eliminate some of the disturbance. Mr. Smith said shrink the footprint and go up. Mr. Anzalone said that would be up to the Mather’s. Judy Mather said that an elevator in her house would not be a home.

Mr. Healey said this was a Planning Board decision as to if the Board wants to allow structure in the wetland buffer. Mr. Healey said that one of the things he anticipated in terms of an approval would be to set a condition subsequent on any approval given for this Conditional Use Permit application and that is, “All requirements and provisions of the Newbury Zoning Ordinance Article 21 which is the Stormwater Management shall be complied with by the property owner.” Mr. Healey said he thought it was worth pointing out what that really means because it is very specific and, in some ways, addresses some of the design on some of the issues we’re dealing with and they are all contained in Article 21-the landowner’s responsibilities. Mr. Healey continued that the requirements are that the property owner: understands that it is their responsibility to comply with this Ordinance and not their contractor(s) or people they retain, understands that there is an application requirement, responsible for erecting temporary erosion control measures, they will erect permanent stormwater management measures, the owner shall comply with all plans submitted and approved by the Code Enforcement Officer, the Code Enforcement Officer shall be notified after the temporary erosion control measures are in place and before work begins for inspection, the owner shall notify the Code Enforcement Officer after the work is completed and ready for inspection, and the owner and all subsequent owners shall be responsible for maintaining temporary and permanent stormwater management measures. Mr. Healey said he thinks the stormwater management requirements are key to what is being proposed and if approval is given he would strongly suggest that the Board make a condition subsequent. Mr. Smith said he thought the Board had voted on a walk through the property. Mr. Healey said he didn’t ask for a vote yet. Mr. Wright said an opinion was asked for.

Mr. Beaton asked for clarification on what the applicant was here for. Mr. Healey said a Conditional Use Permit. Mr. Beaton said for the driveway and part of the house within the buffer. Mr. Beaton asked if the Board is allowed to give that, under 8.7 it doesn’t seem a house is allowed in there. Mr. Healey read from the Zoning Ordinance; uses which may be considered: road, driveway, ditch, culvert, well, utility crossing or other such use deemed by the Planning Board to have minimal impact on the wetland and wetland buffer. Mr. Healey said that a building or part of a building is other such use. Discussion followed.

Mr. Beaton asked how many square feet does it encroach with the building. Mr. Weiler pointed out that the outline includes some outdoor stairs, so that is not really building, land disturbance but not building. Mr. Anzalone said just under 500 square feet. Mr. Healey said that would be about a sixth of the total structure. Ms. Holmes asked if there was a stormwater management plan that will run with the property forever. Mr. Anzalone said yes. Discussion followed.

Mr. Healey asked for a decision on a site visit. Mr. Beaton said he would go for a site visit and asked if they were voting. Mr. Healey said they are voting whether to set a site visit or not. Mr. Beaton said instead of voting on this now, he was for continuing the hearing right now. Mr. Anzalone asked to speak to the owners about continuing the hearing. Mr. Healey asked if he wanted the Board to vote no. Mr. Anzalone asked vote no on the continuance or on everything. Mr. Healey said no on everything. Mr. Anzalone said he would like to talk to the owners. Mr. Healey said you can either withdraw the application if you would like and then re-file, we can continue to a date and time you set. Mr. Weiler asked for the Board to settle the site visit.

Mr. Healey asked for a vote on whether to set a site visit: Mr. Beaton-no to the site visit and continued he does not think a site visit will help the Board determine where the wetlands are, two wetland scientists have determined where it is, they encroach on it, let’s vote on the merits of the plan; Ms. Cockerill-no; Mr. Smith-yes; Mr. Maurer-no; Mr. Wright-no; Mr. Weiler-no. Mr. Healey said no site visit.

Mr. Healey asked if there was any further discussion. Mr. Maurer clarified that the Board would be voting on three separate issues. Mr. Healey said the Board would be voting on the standards. Mr. Maurer said it is one issue and we will vote on each individual standard. Mr. Healey said correct. Discussion followed.

Mr. Healey said that he has already spoken about if this is approved having a condition subsequent concerning the requirements for stormwater management and asked the Board if they agree with that. The Board agrees.

8.7.5.1-The use cannot be implemented outside the wetland buffer: Mr. Beaton-no and continued that he thinks the house can be moved outside the buffer; Ms. Cockerill-yes; Mr. Smith-no; Mr. Maurer-yes; Mr. Wright-yes; Mr. Weiler-yes; Mr. Healey-no. (3 no, 4 yes) Mr. Healey said 8.7.5.1 passes.

8.7.5.2-The location in wetland buffer will cause the least impact: Mr. Beaton-no; Ms. Cockerill-no; Mr. Smith-no; Mr. Maurer-yes; Mr. Wright-yes; Mr. Weiler-yes; Mr. Healey-no. (4 no, 3 yes)

8.7.5.3-The method of implementation will minimize the impact to the wetland buffer: discussion followed. Mr. Beaton-yes; Ms. Cockerill-yes; Mr. Smith-yes; Mr. Maurer-yes; Mr. Wright-yes; Mr. Weiler-yes; Mr. Healey-yes. (0 no, 7 yes)

Mr. Weiler said according to what Mr. Healey told the Board in the beginning, it fails on item 2. Mr. Anzalone asked if there was anything, within reason that can be done that would change minds on the location. Mr. Wright said he thinks the house could be moved a little bit and if the Board was to continue this and the applicant made an effort to reduce the imprint on the buffer, Mr. Wright thinks that would work, it would lessen the impact. Mr. Wright continued that they are in an area where the definition of a wetland is pretty cut and dried but there’s all degrees of wetlands and this is not a year-round, constant one. Discussion followed. Mr. Anzalone said he would like to make a proposal, there is some ledge where the septic was proposed, the reason the septic is not there, we could try and move the garage outside the setback about 5 feet and then the easterly point we could probably move about 10 feet. Discussion followed. Mr. Anzalone said that not getting a favorable decision tonight means the owners are waiting an entire winter to start construction. Mr. Anzalone said that he would propose to the owners to reduce the unaltered area on the east side in an attempt to move the house, the west side moved 10 feet and the garage would be pulled out of the buffer about 5 feet. Mr. Smith asked how much square footage that would be changing. Mr. Anzalone said it would be down to 250 give or take. Mr. Smith said cutting in half. Mr. Anzalone said it is really a balance between the buffer for the wetlands and the undisturbed area, we would still be within the undisturbed area and we would deal with the slope on site. Discussion followed.

Mr. Healey asked if the applicant was asking the Board to reconsider its vote. Mr. Anzalone said yes. Mr. Healey said the Board hasn’t seen a plan. Mr. Anzalone said that he would ask the Board to make that a condition and they would submit that. Mr. Healey asked Mr. Weiler if the Board can reconsider a vote. Mr. Weiler said he would think so, but they would have to come back with new plans next month. Mr. Smith asked if the Board could make that a condition. Mr. Healey said the Board could make that a condition of approval. Discussion followed. Mr. Beaton said he would not change his vote without seeing a plan. Mr. Smith said he did not see a problem, he voted no, and he would vote yes with a condition that those plans come in. Mr. Beaton asked how that would help them, the Board wouldn’t look at the plans until next month anyway. Mr. Healey said they would receive approval, it is called a condition precedent, they have approval to move forward, but it is really not approved until tonight’s proposed plan is reviewed by the Board. Mr. Beaton asked how that would help the applicant. Mr. Healey said they could start. Mr. Beaton said they could start excavating and the Board is not sure what they’re building yet. Mr. Anzalone said the Board would be relying on the Code Enforcement Officer to do that. Mr. Beaton said he did a quick calculation and it was close to 3200 square feet with the garage. Mr. Weiler said if the Board does a condition precedent, all the applicant would have to do is bring the plan in and file it, the Board doesn’t get a chance to look at it and say they don’t like that. Mr. Healey said that the Board would have to make sure it agrees with what the Board approved, so Mr. Healey will have to look at it. Discussion followed.

Mr. Healey clarified that what he thinks the applicant is proposing is to minimize the impact in terms of building structure in the wetland buffer by half of what their current plan show, so the applicant stated that roughly the impact is currently 500 square feet and they are going to reduce it to 250 square feet. Mr. Beaton said you should clarify that it is only the structure, the driveway stays the same. Mr. Healey said correct. Mr. Beaton said which is quite a lot also. Mr. Healey said agreed but he thinks the driveway is a different issue, and if the applicant was here tonight on only the driveway, Mr. Healey said he believes the vote would have been pretty close to unanimous. Mr. Healey continued that the Board was dealing with the building structure. Mr. Healey asked the Board if they wanted to reconsider their vote based on the structure being shifted as discussed in these minutes. The Board said yes. Discussion followed. Mr. Healey asked Mr. Anzalone if he was willing to provide a change in the building location based on the conversation at this meeting. Mr. Anzalone said yes, we would move the garage outside the setback by 5 feet and move the house on the east side and reduce the encroachment by 10 feet. Mr. Smith asked if they would be stamped plans that the Board would receive.

8.7.5.2-The location in wetland buffer will cause the least impact: Mr. Beaton-no; Ms. Cockerill-yes; Mr. Smith-yes; Mr. Maurer-yes; Mr. Wright-yes; Mr. Weiler-yes; Mr. Healey-no. (2 no, 5 yes) Reconsideration passed. Mr. Healey said the Board will have two conditions:

Condition subsequent for final approval of this application, all requirements and provisions of Newbury’s Zoning Ordinance Article 21. Stormwater Management shall be complied with by the property owner.

Condition precedent for final approval of this application, by September 3, 2019 the applicant will deliver to the Land Use Coordinator-2 full-size (24”x36”) revised Site Plans. The format of the revised Site Plan shall be your plan labeled – DWG. NO. C1. For the specific purpose of reducing the impact of proposed building structures in the wetland buffer, the revised plan will clearly show that the proposed building structure of the house has been moved 10 feet out of the delineated wetland buffer and the garage has been moved 5 feet out of the same wetland buffer. The revised plan must also be stamped by the certified wetland scientist who delineated the wetland and wetland buffer. A letter from the wetland scientist certifying the delineation work may be substituted if applying his stamp would delay delivery of the revised Site Plan.

Mr. Healey made a motion to accept the condition subsequent and condition precedent. Mr. Smith seconded the motion. 1 no vote, 6 yes votes.

7:30 p.m. Case 2019-009 Conceptual Site Plan Review – Danielle M. Jallah (owner), for property located at 356 Chalk Pond Rd. Newbury, NH, Tax Map 039-637-409-Cottage Industry-Operation of a family-based daycare.

Mr. Healey invited Ms. Jallah to the table. Mr. Healey read the following:

The Planning Board is authorized to provide Conceptual consultation subject to the following: This preliminary review consultation is a voluntary step available to the applicant. Discussion may occur without the necessity of giving formal public notice, but such discussion must occur only at a formal meeting of the Board. The meeting is a review of the basic concepts of the applicant’s land use proposal or project. The meeting is intended as assistance by answering general questions, and questions regarding application requirements. The discussion must be in general terms, such as the desirability, the types of development, and whether there are any state or local ordinances that may apply to the applicant’s proposal or project. Such consultation shall not bind either the applicant or the Board and statements made by Planning Board members shall not be the basis of disqualifying said members or invalidating any subsequent actions taken by the Planning Board.  

Ms. Jallah presented to the Board that she is looking for permission for a Cottage Industry to become licensed by the State for family-based daycare.  Mr. Healey said that was permitted by two steps, first a special exception by the ZBA and then a formal site plan review in front of the Planning Board. Mr. Healey asked if Ms. Jallah understood the process. Ms. Jallah said she has submitted an application to the ZBA. Mr. Healey said assuming the special exception is granted, Ms. Jallah would file an application for site plan review with the Planning Board. Mr. Healey continued that the Board could help, generally, on how Ms. Jallah could prepare for that. Mr. Smith asked what family-based daycare means. Ms. Jallah said in home daycare, it is not a commercial day care center, it is having up to 6 kids with licensing from the State of New Hampshire without having to hire a second person. Mr. Healey showed the Board where 356 Chalk Pond Rd. was located on the Town GIS database.

Ms. Cockerill said that one of the concerns was the traffic that would be coming in and out of the neighborhood because of people dropping their kids off, so the traffic will be going into the property and not parking on the road. Ms. Jallah said not at all, she has a very steep driveway with a flat top for drop off. Ms. Cockerill said so there is very little disturbance to the neighbors. Ms. Jallah said there is only one house that you can see from her property. Discussion followed. Mr. Maurer asked if Ms. Jallah was currently watching children. Ms Jallah said yes.  Mr. Maurer said the traffic patterns would not change. Mr. Healey asked how many children Ms. Jallah can have at any one time. Ms. Jallah said six. Mr. Healey asked if Ms. Jallah would get a State permit. Ms. Jallah said she is currently unlicensed by the State, she is doing it out of her house. Mr. Healey asked why Ms. Jallah is now getting a permit. Ms. Jallah said that someone called the State and told them Ms. Jallah may have too many kids in her care. Mr. Healey asked if there was a State requirement if you do family-based daycare that you have a permit from the State. Ms. Jallah said correct, the woman from the State told her that to stay unlicensed she would have to drop down to three kids at any given time, any more than 3 kids she needed to be licensed. Ms. Jallah continued that she is a single mom of 4 kids receiving no child support, so she is not in a position to go down to three kids, she needs the 5 or 6 kids for the income, so she is going through the State to get licensed. Mr. Healey asked that the State permit gives Ms. Jallah the opportunity to have 6 kids. Ms. Jallah said correct.

Mr. Healey asked Ms. Jallah about what she had said about having an assistant. Ms. Jallah said the space that she has in her house is not conducive for Ms. Jallah to become licensed for anything more than the standard family-based daycare of having 6 kids. Mr. Healey asked what else the State offers. Ms. Jallah said she does not know because she did not look into anything else knowing her space wouldn’t allow for more than that. Mr. Healey said if Ms. Jallah was going to do a site plan review with the Board, she will have to prepare an application. Mr. Weiler said that there are separate regulations for Cottage Industry site plan review. Mr. Healey said that Article 10 in Site Plan Review regulations is site plan review for Cottage Industry, very specific about what needs to be provided. Mr. Healey went over what was going to have to be submitted with the site plan review application. Mr. Healey said he doesn’t think the Board needs to ask for engineer drawings but can use the GIS database to get a plan of the property and indicate on the plan all the requirements listed for site plan review in the regulations.

Mr. Healey told Ms. Jallah she would need her permit from the State when she come back to Planning Board. Ms. Jallah said the State would not give her a license until she submits all of her application stuff, background check, fingerprints, fire and health inspections. Mr. Healey said maybe the Board could accept the site plan review application with a condition precedent which is that you are approved but not final approved until you have your permit. Mr. Healey asked the Board if they were okay with what he had said to Ms. Jallah. The Board agreed.

7:45 p.m. Case 2019-010 Conceptual Site Plan Review – Ben Prime (agent) for Cilley Tavern Realty, LLC (owner), for property located at 4 Route 103A, Newbury, NH, Tax Map 020-156-327-Sporting Goods retail for summer and winter products.

Mr. Healey invited Mr. Prime to the table.

Mr. Healey said the Board had asked at the last meeting for Mr. Healey to contact Town Counsel for advice and he wanted to report back to the Board. Mr. Healey continued that Mr. Prime had asked for a letter from the Town stating that he was authorized to sell boats at his property and Mr. Healey had said that he was not going to do that, Mr. Weiler said he was concerned that could get the Town in trouble and to ask Town Counsel. Mr. Healey said the other general question was whether Mr. Prime’s representation that he had rights to sell boats on the property was within the purview of his understanding with the Planning Board. Mr. Healey said that Town Counsel pointed out that the letter Mr. Prime was requesting was called a zoning opinion letter and Town Counsel advised the Town that they should never issue a zoning letter of opinion, it is bad practice and bad policy. Mr. Healey continued that Town Counsel had said that Mr. Prime had lots of other options to get a letter from his own sources to meet the State requirement.

Mr. Healey said that he also spoke with Town Counsel about receiving emails from Mr. Prime about wanting to sell boats and provided Town Counsel with a letter of understanding Mr. Healey had written in August of 2017 after meeting with Mr. Prime and Mr. Tuttle for a conceptual site plan review. Mr. Healey said the letter of understanding said that the Nordicskater business was more than 90% online retail trade. Mr. Healey said that Town Counsel pointed out that it was really clear then that the Planning Board had every reason to believe that its requirements in site plan review or what triggered site plan review was what is called an expansion of use. Mr. Healey continued that Town Counsel said it was an expansion of use per Article 3.1.3 and site plan review is required. Town Counsel encouraged Mr. Healey to write Mr. Prime a letter informing him that he had no right to begin to sell and store power boats without going through site plan review with the Planning Board and having a public hearing, but Mr. Prime came on his own so Mr. Healey did not have to send a letter.

Mr. Prime said Mr. Healey mentioned two things that he had spoken with Town Counsel about, one of them was the letter requesting Mr. Prime sell boats but that is not actually what Mr. Prime needs for the State, it’s an RSA dictating what is needed and Mr. Prime talked with Mr. Pavlicek and the State. Mr. Prime continued that it is not a letter having anything related to boats but a letter stating whether Mr. Prime is in compliance with all local zoning and regulatory requirements. Mr. Healey said which you’re not. Mr. Prime said now he understands that he is not, and this is the first time he has heard he was not. Mr. Prime said he will have to research Article 3.1.3-expansion of use and asks if it gives examples of what an expansion of use would be. Mr. Healey asked Mr. Prime if he was suggesting to the Board that he doesn’t see the storing of trailered power boats as being completely different than online retail trade. Mr. Prime said related to the 90% online trade, businesses do expand, so that would be expansion of use but outside of expansion of use my online business could escalate higher or my walk-in traffic could escalate higher for summer business. Mr. Smith can we say a change in use then which is under 3.1.2. Mr. Healey said it really is not a change, Town Counsel was pretty specific because Mr. Prime has retail use already approved, power boats are retail. Mr. Prime said that is his question, that is what he is trying to navigate. Mr. Healey said he is not saying there is a change in use, he is saying there is an expansion. Mr. Weiler said the expansion is physical, instead of someone inside on the computer doing retail trade, what you are going to have now is cars and boats during the day and that is stuff the Planning Board regulates through site plan review. Mr. Prime asked if the traffic increase is becoming a problem. Mr. Weiler said that is what the Board will have to see when Mr. Prime comes in for site plan review, you will tell the Board how many cars and boats you will have and where you are going to put them and see if they meet the regulations.  Mr. Healey said that the Board also has the opportunity to limit and set conditions. Mr. Healey said another thing the Board is supposed to do is notice the public when something is changing with a business. Mr. Prime asked that in this case it is expansion. Mr. Healey said correct. Mr. Prime clarified that the expansion of use requires a site plan review. Mr. Weiler said yes. Discussion followed. Mr. Weiler asked that that we check the files to see if there is a real site plan on file. Mr. Healey told Mr. Prime that he needs to do a site plan review, question is if it will be a minor or full site plan review and Mr. Healey will notify Mr. Prime of which one. Discussion followed.

Other Business:

Mr. McWilliams will be back on October 15th

Mr. Healey said that Town Counsel reviewed the proposed Shoreland Restoration zoning amendment and he is pleased with the effort, they made one change that had to do with reminding the SelectBoard that they have authority to help with enforcement. Mr. Healey said the Mr. Beaton had made a suggestion at one point that the Board could discuss at a later time. Mr. Beaton said that the ordinance only dealt with the shoreland and Mr. Weiler had pointed out that there is a high limit cutting too. Mr. Weiler said the Skyline Ordinance. Mr. Beaton said we could talk about it at the next meeting, but it seems it would be a big effort to rewrite it. Mr. Healey said it would.

Mr. Wright said that he doesn’t think Mr. Healey should be prompting applicants in the process but to reference them to the Land Use Coordinator, because the Board is judgmental. Mr. Healey said that is a fair concern, but sometimes he is stepping outside the regulations as to what is acceptable and so he was proposing how the applicant can proceed. Mr. Wright said that it has the potential to cause bias if the exact same process is not taken with every applicant. Mr. Weiler said he doesn’t think there is a requirement for that if you treat A one way that you have to treat B that way, that’s precedence and the Board does not establish precedence.

Mr. Smith made a motion to adjourn.  Mr. Beaton seconded the motion.  All in favor.

The meeting adjourned at 9:45 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

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