October 6, 2004

Agenda: The Town of Stratham, Planning Board conducted a Public Hearing on Wednesday, October 6, 2004, at 7:00 p.m., at the Stratham Town Hall, 10 Bunker Hill Avenue, Stratham, NH to consider the following:

Approval of Minutes: July 7, 2004 & August 18, 2004

Ongoing Business

Map 14 Lot 32-3 – Application for a 5 lot subdivision for Timothy & Thomas Phoenix, located on Lovell Road and Linwood Lane.

New Business: Application acceptance and public hearing:

Map 18 Lot 50, 51 & 55 – Application for Subdivision for David Batchelder, Located at 3 Baker Lane.

Map 2 Lot 15 - Application for Amended Site Plan for The Vineyards Located on Academic Way.

Other:

Planning Board Rules and Procedures

2005 Zoning Workshop (bring your ideas)

Any other business properly brought before the Board.

Members Present: Chairman Ken Cornwell, Tim Mason, Kirk Scamman, Janet Johnson, and Town Planner, Charles (Chuck) Grassie.

Mr. Cornwell indicated that the July 7, 2004 and August 4, 2004 minutes need approval. Mr. Mason made a motion to approve the minutes from July 7, 2004 and August 4, 2004. Mr. Scamman seconded the motion, which passed unanimously.

Map 14 Lot 32-3 – Application for a 5 lot subdivision for Timothy & Thomas Phoenix, located on Lovell Road and Linwood Lane:

Attorney Michael Donahue was present to represent the applicants. He indicated that they were in the process of addressing the concerns of the two abutters on Linwood Lane that would be affected by extending Linwood Lane into the proposed subdivision. He described what their proposals to the abutters. Mr. Donahue stated that they were in the process of designing the roadway. They will be forwarding that design to Civilworks for their review. Mr. Donahue noted that there is a memo from Mike Cuomo from the Rockingham County Conservation District which expressed a concern about the wetland flagging. Mr. Donahue stated that the wetland flagging was done by NH Soil Consultants. He would like to have Mr. Cuomo be more specific in his concerns. Mr. Donahue said there was speculation that there might be another right-of-way to the Phoenix property, but there is no other right-of-way. He informed the Board that after examining the deeds regarding the Piper parcel, the applicant intends to pursue a quiet title action on it. They are requesting another continuation. They hope to be ready for a November meeting. Mr. Cornwell was concerned that people may have lost track of what is going on with this application because of the length of time being taken with it. He felt that abutters should be renoticed. Mr. Donahue said he had no problem with renoticing the abutters. There was a brief discussion regarding Mr. Cuomo’ comments regarding the wetland flagging. Mr. Grassie stated that it would be better not to continue this application to a date certain. That way the applicant won’t need to ask for another continuance if they aren’t ready for a specific date. They can inform the Board when they will be ready to proceed, and abutters can be notified.

Abutter Charles Polito stated that he had hired an attorney, on the advice of the Planning Board, who has called Mr. Donahue numerous time. Mr. Donahue has not returned Mr. Polito’s attorney’s calls. Mr. Polito said he would like a 6’ high, 300’ long fence along his property line. He stated that his deed and Mr. Kelly’s deed indicates that if the right-of-way is used, the ends of the hammerhead would revert back to the properties that they abut. Mr. Polito said that the applicant has proposed to put a fire cistern on the end of the hammerhead, but that land would not belong to the applicant. Mr. Cornwell noted that the Fire Chief Bob Law had to review the plans to determine the location for a fire cistern. It was the opinion of the Board that the fire cistern would be relocated according to Mr. Law’s decision. Gordon Barker from the Conservation Commission expressed a concern about the flagging of the wetlands. The hearing was continued for a maximum of 90 days, and the applicant will renotice the abutters when a specific hearing date is set.

Map 2 Lot 15 - Application for Amended Site Plan for The Vineyards Located on Academic Way:

Mr. Mason stepped down because of a conflict of interest. Mr. Grassie stated that the applicant, at the request of the Board of Selectmen, is applying to change a condition of the Vineyards Subdivision approval, which required improvements to the Guinea Road/Stratham Heights Road intersection. He noted that the letter, requested by the Planning Board, from Cabernet Builders had been received, and was in the file. He indicated that there was a memo from Town Administrator Paul Deschaine and a memo from Fire Chief Bob Law regarding possible uses for the $50,000 donation from Cabernet Builders.

Mr. Cornwell stated that he was not in favor of accepting the $50,000 donation instead of completing the improvements to the Guinea Road/Stratham Heights Road intersection. He said that the Board has been requesting and receiving money from developers for roadway improvements, and not doing those improvements. Ms. Johnson did not feel that the improvements to the Guinea Road/Stratham Heights Road intersection were necessary, but agreed with Mr. Cornwell about using money received from developers for roadway improvements. Mr. Scamman explained the Selectmen’s reasons for not wanting to go forward with the Guinea Road/Stratham Heights Road intersection improvements. He said that, if this Board feels the money should be used for roadway projects instead of fire pond improvements, the Selectmen would look favorably on using the money on roadway projects. He recommended that the Board accept the $50,000 to be used for a roadway project instead of a water supply project. John Hutton, from the audience, commented that if the money is not going to be used to improve the Guinea Road/Stratham Heights Road intersection, it should be used in that neighborhood. Gordon Barker, from the audience, agreed with Mr. Hutton. Mr. Cornwell also agreed with Mr. Hutton. Mr. Scamman made a motion to accept the $50,000 donation from Cabernet Builders to be used to improve a roadway in the Town of Stratham, and to release them from the condition in their original approval to improve the Guinea Road/Stratham Heights Road intersection. Ms. Johnson seconded the motion. Town Administrator Paul Deschaine wanted to have the Board confirm that they wanted the $50,000 to be set aside for a roadway improvement project only and not a fire safety project. Mr. Scamman confirmed that was the intent of his motion. Ms. Johnson also confirmed that was the intent of her second. The motion passed with a vote of two in favor and one against. Mr. Mason resumed his seat.

Map 18 Lot 50, 51 & 55 – Application for Subdivision for David Batchelder, Located at 3 Baker Lane:

Mr. Grassie noted that he had spoken to someone at the State from the Office of Energy and Planning regarding the conservation easement on the property. He paraphrased sections of the conservation easement. There is a section that mentions no further subdivision of the land. Also a section about not utilizing the conservation easement land to meet minimum lot sizing. He stated that the State hasn’t taken a position on this issue yet, they are checking with their attorneys to see if the proposed subdivision would be allowable.

David Emanuel from Emanuel Engineering was present to represent the applicant. He said that there has been confusion with the numbering of the lots. He gave a brief description of the property. He said that when the conservation easement was put in place in the early 1990’s, three pieces of land were left out of the conservation easement. The Town labeled them as separate lots, but they were never subdivided out of the original property. Mr. Emanuel indicated that they had come before the Planning Board last year to subdivision out a two acre parcel designated Map 18, Lot 54. He noted that there are two other pieces of the original parcel that were left out of the conservation easement. He has labeled them Lot 1 and Lot 2 on this plan. Lot 1, without the conservation easement is 1.38 acres. Lot 2 has 3.29 acres. Mr. Emanuel said they have applied for two waivers, because of the size of the parcel. The waivers from Section 3.3.1 – Design & Sketch Plan and from Section 3.3.2 Subdivision Plan. Both deal with providing topography and natural features of the site.

Mr. Mason asked how the Town was recognizing Lots 1 and 2 on the tax maps. He asked if they were existing lots of record before the two acre zoning came into play. Mr. Emanuel indicated that Lot 1 is designated as Map 18 Lot 55, and Lot 2 is designated as Map 18 Lot 51 on the maps. Mr. Grassie stated that even though the tax map show them as separate lots, they are not separate lots. Mr. Emanuel pointed out that the boundary for the easement is the intermittent stream. There was a great deal of discussion regarding the pieces of land that were left out of the conservation easement; whether or not those pieces of land are lots of record and, therefore, buildable; how the State might view the proposed subdivision; and whether or not to take the plans under jurisdiction. Mr. Deschaine explained the configuration of the land at the time the conservation easement was created.

Lucy Cushman, from the audience, spoke against taking the plan under jurisdiction, and against this proposed subdivision. Mr. Hutton felt that the Board should check further with the State and with an attorney because conservation easements are suppose to be forever. Ms. Johnson asked how the State got involved with this proposed subdivision. Mr. Deschaine said that the Town received a grant under the LCIP program. The Town is the easement holder, but the State retains an executory interest in the easement, because of the grant money. Conservation Commission Chairman Gordon Barker indicated that the Commission is concern about the possibility of creating a hardship for anyone to farm this property if the lot is subdivided off. The Commission is also concerned about having to deal with several property owners instead of one when they go to monitor the property. Abutter William Chandler spoke against the proposed subdivision. Mr. Cornwell, Mr. Scamman and Ms. Johnson stated that they were concerned about the implications on future conservation easements, and would like to hear what the State has to say about this project before moving any further along with this application. They felt that the Board may also need to seek a legal opinion on the matter. Mr. Mason pointed out that if the Board does not take this application under jurisdiction, they shouldn’t expect the applicant to pay for any attorney’s bills if the Town goes to one for an opinion. Mr. Grassie agreed with Mr. Mason. Mr. Grassie stated that before the Board makes a determination on whether or not the applicant needs to go for a variance, the application needs to be taken under jurisdiction. He went on to explain that taking this plan under jurisdiction does not mean that this plan is approved. He stated that if the plan is not taken under jurisdiction, any bills for expert review or opinions will be the Board’s responsibility. The applicant still needs to meet all the criteria for approval. If the Board takes the plan under jurisdiction, and a legal opinion is necessary, it will be at the applicant’s expense. Mr. Scamman made a motion to take this plan under jurisdiction. Ms. Mason seconded the motion. There was a great deal of discussion regarding whether or not to take this plan under jurisdiction. Marty Wool from the audience spoke against taking this plan under jurisdiction. He felt that there were too many questions about this application, and that the Town should obtain legal advice before making any decisions. Mr. Scamman withdrew his motion to take the plan under jurisdiction. He strongly suggested that the Town hire an attorney to review the easement. Mr. Mason withdrew his second to Mr. Scamman’s motion. Mr. Mason commented that it was up to the Board to inform Mr. Grassie of the criteria the Board feels makes any application complete. He said his comment is for all applications, not this one specifically. Ms. Johnson spoke against taking this plan under jurisdiction. Mr. Cornwell agreed with the other Board members. John Hutton from the audience said it was up to the Board to interpret the gray areas of this application. He felt that the Board could rule that this application is incomplete, because the Board needs legal guidance on this matter. Mr. Deschaine suggested that the Board continue this application to the next meeting to determine jurisdiction. Hopefully, by then the Town would have received a legal opinion. Mr. Batchelder informed the Board that it was acceptable to him to have the application continued to the next meeting. The hearing was continued to November 3, 2004.

Other:

2005 Zoning Workshop:

Mr. Grassie handed out the latest calendar with deadlines for any proposed Zoning amendments. One of the proposed changes to Stratham’s regulations he suggested was that a preliminary consultation be required. He went over the various zoning proposals from last year that did not pass. They were: affordable elderly housing; workforce housing; limiting auto dealerships and gas stations; expanding the commercial & industrial zones; and changes to variance criteria. Mr. Grassie stated that the Board members were going to go on a road trip to visit two senior affordable housing projects on October 20, 2004. That night there will be no regular Planning Board meeting. The members will meet at 5:00 p.m. The public is invited to attend. There was a great deal of discussion regarding limiting auto dealerships; expanding the commercial and industrial zones; doing some type of poll, newspaper article, or on-line survey to get the public’s opinion on zoning proposals; holding an informational meeting for the public about zoning needs; the different zones that allow commercial businesses; and the proliferation of duplexes, and the possibility of increasing the lot size for duplexes.

Deputy Fire Chief David Emanuel stated that he was in favor of using the $50,000 donated by Cabernet Builders for the fire pond project, and asked the Board if they had a specific roadway project they will be using the money for. There was additional discussion about what has happened to the money given to the Town by developers. John Stevens was not in favor of expanding the commercial zone, but was in favor of educating the public on zoning and creating affordable elderly and workforce housing. Mr. Mason suggested that the Town should research the effects of the change from 1 acre to 2 acre zoning. He said that the only way a developer is going to be able to build affordable housing is by increasing the density, and using new sewage treatments. There was a great deal of further discussion regarding affordable housing.

Mr. Mason made a motion to adjourn at 9:08 p.m. Ms. Johnson seconded the motion, which carried.

Respectfully submitted,

Linda A. Beaudoin,

Secretary Stratham Planning Board