TOWN OF BEDFORD June 26, 2017 PLANNING BOARD MINUTES

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1 TOWN OF BEDFORD June 26, 2017 PLANNING BOARD MINUTES A meeting of the Bedford Planning Board was held on Monday, June 26, 2017 at the Bedford Meeting Room, 10 Meetinghouse Road, Bedford, NH. Present were: Hal Newberry (Acting Chairman), Chris Bandazian (Town Council), Melissa Stevens (Town Council Alternate), Rick Sawyer (Town Manager), Karen McGinley, Philip Cote, Mac McMahan, Randy Hawkins, Charlie Fairman (Alternate), Rene Pincince (Alternate), Becky Hebert (Planning Director), and Mark Connors (Assistant Planning Director) I. Call to Order and Roll Call Acting Chairman Newberry called the meeting to order at 7:00 p.m. Chairman Jon Levenstein, Public Works Director Jeff Foote, and Alternate Monique Rice were absent. Mr. Fairman and Mr. Pincince were appointed to vote. Mr. Connors reviewed the agenda. II. III. Old Business Continued Hearings: None New Business: Application Acceptance and/or Public Hearings on Applications: 1. 4NH Homes, LLC (Owner) and Robert & Susan Murphy (Owners) - Request for final approval of a lot line adjustment and subdivision to create one new residential lot at 60 Cider Mill Road and 300 Joppa Hill Road, Lots and , Zoned R&A. 2. ASC Realty LLC c/o William Greiner and Nicholas Vailas (Owners) Request for a site plan amendment to permit a 1,736 square-foot building addition for a medical office use to Building E in the Washington Place Medical Park and for a change of use to convert a 4,332 square-foot portion of the building from medical offices to a surgery center use at 11 Washington Place, Lot , Zoned PZ. 3. The Harbor Group Inc. (Applicant), 331 South River Road, LLC (Owner) Request for re-approval of a previously approved site plan, approved by the Planning Board on May 4, 2015, and to permit architectural façade changes to the proposed 11,202 square-foot office building at 331 South River Road, Lot 24-20, Zoned PZ. 4. Encore Retail, LLC (Applicant), ER Bedford, LLC (Owner) Request for final architectural approval of the parking garage at Building A in the Market & Main mixeduse development at 125 South River Road (former Macy s site), Lot 12-33, Zoned PZ. IV. Concept Proposals and Other Business: 5. Recommendation to the Town Council on the appointment of a regular member to the SNHPC.

2 Planning Board Minutes June 26, Mr. Connors stated all the new applications have been reviewed by staff and are complete, the abutters have been notified; it is the opinion of Planning Staff that none of these applications pose a regional impact, and the agenda is ready for the Board s acceptance. MOTION by Councilor Bandazian to approve the agenda as presented. Town Manager Sawyer duly seconded the motion. Vote taken all in favor. Motion carried. 1. 4NH Homes, LLC (Owner) and Robert & Susan Murphy (Owners) - Request for final approval of a lot line adjustment and subdivision to create one new residential lot at 60 Cider Mill Road and 300 Joppa Hill Road, Lots and , Zoned R&A. A staff report from Mark Connors, Assistant Planning Director, dated June 26, 2017 as follows: I. Project Statistics: Owners: 4NH Homes, LLC and Robert & Susan Murphy Proposal: Request for final approval of a lot line adjustment and subdivision to create one new residential lot Location: 60 Cider Mill Road and 300 Joppa Hill Road, (Lots & ) Existing Zoning: R&A Residential & Agricultural Surrounding Uses: Residential II. Background Information: Both of the existing lots involved in this application were recorded in 1979 as part of the Apple Orchard Estates subdivision, approved by the Planning Board in the same year. Both lots contain single-family homes built in 1985 with on-site well and septic. There are no other Planning or Zoning applications on file for the lots in question. III. Project Description: This proposal is to relocate the existing lot line between Lots and to create one new residential lot between the two parcels at the northwest corner of Cider Mill Road and Joppa Hill Road. 60 Cider Mill Road (Lot ) is currently 3.25 acres while 300 Joppa Hill Road is 3.13 acres. Lot would be reduced to 1.87 acres (from 3.25) while Lot would be decreased in size to 2.17 acres (from 3.13). The new lot, identified as Lot on the plans, would be 1.79 acres. The area encompassing the parcels includes a wetland which is widest along the western corner of Lot before narrowing as it cuts through both parcels and passes under Joppa Hill Road via a culvert. A drainage easement; the area also includes steep slopes, dropping in elevation from the northern corner of Lot along the Cider Mill frontage approximately 60 feet to the wetlands on Lot Slopes within the buildable areas of the parcels reach 20 percent.

3 Planning Board Minutes June 26, Both parcels are in the Residential & Agricultural District, which employs soils-based lot sizing requirements (with a minimum lot size of 1.5 acres) and 150 feet of road frontage. The majority of soils on the site are of a very stony sandy loam variety. Road frontages for the lots will range from on Lot to in excess of 600 on the newly created lot. An existing leach field on Lot spans the proposed lot boundary and will have to be removed should this application move forward (Condition #6). For areas without sewer access, the Town requires a minimum buildable area of 20,000 square feet where existing slopes within the buildable area range exceed 8 percent but are less than 25 percent, which is the case in this subdivision. This requirement is designed to ensure that new lots enjoy sufficient areas to build a house, maintain onsite well and septic, and maintain access to traditional residential amenities like a yard, deck or swimming pool. The newly created lot will fall short of this requirement, providing only 12,654 square-feet of buildable area, or approximately 63 percent of the Town required minimum. The applicants are requesting a waiver from Section of the Land Development Control Regulations to permit a new lot without adequate buildable area (see Waiver Requests section of this report). Area of Parcels for Subdivision (Acres) Existing Proposed Lot Lot Lot Several stone walls traverse the area and at least one would have to be substantially disturbed to permit the subdivision. The applicant proposes to relocate part of the wall to the frontage along Cider Mill Road to run parallel with an existing wall, as well as one to run along the rear buildable area boundary. The applicant has submitted a waiver request to Section , which encourages the preservation of features which add value to subdivisions to the greatest extent possible, but with the proposed relocation of the wall, staff has determined the waiver is no longer necessary. A stormwater drainage report was submitted and reviewed by VHB, the Town s engineering consultant. The report demonstrated that there will be no increase in peak stormwater flows as a result of this proposed development. The majority of the stormwater will continue to runoff into the existing wetlands on the site, which provides some attenuation during peak storm events. The applicant has addressed a number of outstanding technical review comments noted by the Town s consulting engineer, including a driveway sight distance profile for the new lot, grading details for the proposed house and driveway, and a detail on the drainage easement between the Town and Lot A Fair Share Roadway Contribution is required for this application as $1.5 million of improvements to Joppa Hill Road were recently completed by the Town. The Town s consulting engineer reviewed the application and completed a Rational Nexus Calculation to determine the allocation due by the applicant should the application be approved by the Board (see attached memo by Robin Bousa of VHB). The calculation was determined to be $7,

4 Planning Board Minutes June 26, IV. Waivers: The Applicant is requesting the following waivers (please see the attached letter from Daniel Higginson of Higginson) of the Land Development Control Regulations: 1. Section which requires each lot to have adequate buildable area. The applicant argues that the wetlands impacting buildable area on the site are lowfunctioning and has submitted a stamped memo from a wetland scientist (see letter from Spencer Tate). Planning staff is not aware of the Board approving a waiver to the minimum buildable area requirement in the past, and is not supportive of granting the waiver to preserve precedent. Although staff may support such a request under certain circumstances, including for oversized lots or where the minimum area is just short of the requirement, those conditions are not present in this application. Due to the limited buildable area for the new lot, staff believes constructing a residence on the parcel may appear out of character with the surrounding neighborhood. The Planning Board needs to vote on whether or not to grant the waivers from the Bedford Land Development Control Regulations, for Section as previously described. Planning staff is recommending that the Board deny the waiver from Section to allow the creation of a lot with 12,654 square feet of buildable area where 20,000 square feet is required. V. Staff Recommendations: Staff would recommend that the Board act on the waiver listed above. If the waiver for the required buildable area is denied, staff would recommend denying the subdivision application because it appears that the subdivision could not be re-designed to satisfy the town s minimum buildable area requirement. If the Board approves the waiver request, staff has offered a draft motion for approval of the application as well. Both motions are included below, depending on the pleasure of the Board. If the Board votes to deny approval of the application, the following draft motion is offered: I move that the Planning Board deny approval of the lot line adjustment between Lots and and the subdivision of both lots to create one new residential lot, based on the plan prepared by Higginson Land Services, last revised June 1, 2017, because the proposed new lot does not meet the Town s minimum buildable area requirement under Section of the Bedford Land Development Control Regulations. If the Board votes to approve the application, the following draft motion is offered: I move that the Planning Board approve the proposed lot line adjustment between Lots and and the subdivision of both lots to create one new residential lot, based on the plan prepared by Higginson Land Services, last revised June 1, 2017, subject to the following precedent conditions: 1. A letter shall be submitted to the Planning Department by a Licensed Land Surveyor certifying that all boundary monumentation has been set as noted on the approved plan, or in lieu of a letter, the final subdivision plan to be recorded may be submitted noting the bounds have been set.

5 Planning Board Minutes June 26, The Director of Public Works and the Planning Director shall determine that the Applicant has addressed all remaining technical review comments to the Town s satisfaction. 3. The owners shall sign the plans. 4. The Applicant shall submit any outstanding engineering review fees (if any) to the Department of Public Works. 5. The NHDES Subdivision Approval permit shall be obtained and the permit number shall be noted on the plan. 6. The existing leach field on Lot shall be removed and the area loamed and seeded. The plans shall be updated to reflect this requirement. 7. A check made payable to the Town of Bedford Department of Public Works shall be provided for the Applicant s Fair Share Roadway Contribution to the Joppa Hill Road improvements. 8. Prior to issuance of a Certificate of Occupancy, school and recreation impact fees shall be paid. 9. All recording fees shall be submitted to the Planning Department at the time of recording. Attorney Roy Tilsley, Bernstein Shur Law Firm, Mike Gallo of 4NH Homes, LLC, Dan Higginson surveyor, and Certified Wetland Scientist Spencer Tate were present to address this application for this proposed lot line adjustment. Attorney Tilsley stated my client owns Lot , the co-applicant, Robert and Susan Murphy, own Lot , and a plan with the current property line was posted. These are two lots kind of split diagonally. There is a proposed lot line adjustment where Parcel A as seen on your plan up in the left corner will be conveyed to the Murphy s Lot 47, and that will create a new lot for them that runs more up and down than left to right. Then my client will receive Parcel B as part of the lot line adjustment and the remaining lot we are proposing will be subdivided into two lots creating a new Lot All of the lots meet the lot size requirement, which I believe is 1.5 acres. Lot 46 will go from 3.25 acres to 1.87 acres, Lot 47 will go from 3.13 acres to 2.17 acres, and the new Lot 119 will be 1.79 acres. The property is located in the Residential/Agricultural District. We do have a waiver request on the new lot. I don t know if the Board wants to look at the application for completeness first or have me talk about that. Acting Chairman Newberry stated you can talk about the waiver. Attorney Tilsley stated the waiver request seeks a waiver from Section of the regulations, which requires a minimum buildable area of 20,000 contiguous square feet on the lot. On the new Lot 119 we are proposing about 12,500 square feet of buildable area. The buildable area was depicted on the posted plan. The buildable area is all at the front of the lot. We also easily fit in the required 75-square foot x 100-square foot box, shown on the plan, which fits into that area as well. The reason there is a 20,000 square foot requirement here is that we have lots with slopes between 8 and 25 percent and the reason we can t get to 20,000 square feet is a small, low-functioning wetland located in the middle of the lot. The wetlands plan was posted. The shaded area is the wetland buffer for the wetland that is located as shown. I think of it as a baseball field, so if the shaded area is the outfield, the sort of oddly shaped rectangle is the wetland that we are dealing with here. This is a small, very low-functioning wetland; the shaded

6 Planning Board Minutes June 26, area is the necessary wetland buffer under your ordinance, which is 10,462 square feet. If we were able to ignore the wetland buffer in this case, we would easily have the 20,000 square foot building envelope that is required in this particular case. And requesting a waiver from the 20,000 square foot requirement I suppose there are two ways to look at this. One of them is that the 20,000 square foot requirement is designed to make sure that there is sufficient area on the lot to accommodate the construction of a single family home in this case with the normal amenities, being a garage and a porch and a backyard and things like that. If you look at the erosion and grading plan, you can see again in the envelope we have depicted a layout of the house and the garage, the septic, and an area for a backyard within the 12,500 square feet. Mr. Higginson stated the layout of the house is relatively flat coming in, the driveway meets the Town regulations for slope and level platform, all the grading for the house, the leach field and the associated improvements are within that building envelope, not impacting the wetland buffer area of that small, low-functioning wetland, and it is all in that 12,500 square feet. Attorney Tilsley stated there are a couple of features on that plan that I would like to have Mr. Higginson talk about as well. One is the stone wall being relocated. I know no waiver is needed for that but I wanted to give Mr. Higginson a chance to explain it. Mr. Higginson stated there is a piece of antique stone wall in the back, as shown, from when it was farmland. The portion indicated is existing stone wall that we are proposing to remove and then replace along this area shown and it will be built with a woodchip berm to prevent sedimentation from getting down into the wetland area when construction is occurring and it will help to prevent the wetland from water shedding from the property in the future. Attorney Tilsley stated and I believe we had initially submitted the waiver request for that relocation, but staff has since determined that that waiver is not necessary but I wanted to show it to the Board on the plan. Attorney Tilsley continued again, if you look at the envelope, if you see it from my perspective is the non-engineer, it is a nice wide envelope, it easily accommodates a house, it is very similar to the size of the house next door, a garage, there is room for a deck and a backyard and things like that without impacting the wetland buffer. Mr. Higginson can show us where the envelope ends. We are not proposing any improvements in the wetlands buffer, simply pointing out that the wetlands buffer would give us enough square footage if we didn t have to count it as a wetland buffer. Attorney Tilsley stated so from the perspective if whether there is enough room for a single family house, given the shape of this lot, given that it is level up front, that it is nice and wide by the road, there clearly is enough room for normal development that is consistent with the neighborhood. The other way I think of looking at this issue is focusing on the wetland buffer and the purpose of having a wetland buffer is obviously to protect the wetland that it buffers, and in this case due to the low functionality of the wetland that is being protected by the buffer, the buffer doesn t really protect anything of any significant importance. I think you have Mr. Tate s report as the wetlands scientist but he is here tonight, and I wanted to give him a minute to just tell you a little bit about this wetland and his conclusions as to its low functionality. Mr. Tate stated it is a scrub shrub forested wetland that I believe would have developed concurrently with whatever the road was at the time. There is very little A horizon, which is your topsoil, which was also mixed, which tells me there was some sort of disturbance here at the time. The wetland vegetation in this area was largely barberry, honeysuckle, and Oriental bittersweet,

7 Planning Board Minutes June 26, which are all invasion species, which isn t deleterious, it is everywhere, but it just doesn t really offer much in terms of providing seasonal wetland plants or high-value wetland plants. In terms of trees there is elm, the native species that were there is nothing unremarkable, no rare or endangered species. In terms of the hydraulic regime there, I believe it is largely groundwater fed because a good chunk of that slope is somewhat poorly drained and you probably see this in logging operations if you kind of pierce or scrape down into that somewhat poorly drained soil you will actually establish surface, you will kind of poke into the bubble of the groundwater table and it will kind of weep out onto the surface. You will see that in late March, early April before the trees start up-taking water. In other words, there is no surface water associated with this, no stream, lake, pond; it is kind of just a wet saturated area during that wet portion of the spring and early summer. Typically wetland functions are associated with high-value wetlands, which are things that offer recharge, support surface water, water dependent habitat and wildlife, there really isn t any of that here because of its scale and because I suspect it has developed kind of by accident associated with the road construction. So it is kind of just a wet area. Acting Chairman Newberry asked could you elaborate a little bit on how you determine that it is wetland? Mr. Tate replied this would fit under the Section F category of the Army Corp Technical Handbook, which is disturbed sites. Like I said, because I didn t see the normal horizon differentiation, which you would see, there was that mixed top soil, that mixed A horizon. What you go by in a disturbed soil is basically what the site will develop into over time. On an unmolested wetland area we go by hydrologic activity, hydrophitic plants, so predominance of wetland vegetation, and also hydric indicators within the soil profile. On a disturbed site we just go with those hydric soils in the profile, or hydric indicators in the profile, and that is what this displayed. It was less than 12 inches to the seasonal high water table, and at the time of the evaluation, which was late March, it was the wettest time of year, you could actually see little rivulets running down. But that is also why it ends is because I think the cut slope is cut into a little bit on the upland side. Like I said, you kind of poked into that groundwater table and then on the lower side there was a little bit of fill and that is when we came out of that 12-inch seasonal high water table. In this wetland area basically what I was mapping was where is my 12 inches to groundwater table or less, so where that line was delineated if I was 13 inches to seasonal high water table, I was in upland. Attorney Tilsley stated again, going back to the wetlands plan and what I have called the baseball outfield, the shaded area, that is the wetland buffer. We are not asking you to allow us to build within the buffer, what we are asking you to do is to waive the 20,000 square foot requirement. If you, again, eliminated that buffer, we are not going to build there, we don t really need it because it is a low-functioning wetland, if we could include that 10,000 square feet in our calculation, we would easily have the 20,000 square feet needed for construction on this lot. We really look at this as we are not going to build in it, so we are not asking you to allow us to damage the wetland or get near it; we are just asking you to allow us to include the buffer in the calculation given the low-functioning of the wetland. We don t believe there is any negative affect to this lowfunctioning wetland by the project, but if the Board wants to, I will leave this entirely up to the Board, I know the staff didn t seem too excited about it and that is fine with us, but my client would be willing to as proposed a 2,500 square foot highly functioning wetland could be constructed on Lot 46 as a condition to approval if that makes the Board more comfortable with the waiver that we have requested. We would certainly be happy to do that. The waiver requirements of the Land Development Control Regulations are in Section ; in this case it is our position that strict compliance is not applicable under the circumstances involved with this

8 Planning Board Minutes June 26, particular lot. The lot, as you can see, can easily accommodate single family development in a nicely shaped buildable area of only 12,500 square feet located close to the road. Since the wetland is low-functioning, strict compliance is not needed to protect the wetland, the wetland buffer isn t really protecting anything, and, again, we are not going to violate the buffer, we are just suggesting that you factor it into the available land in getting to 20,000 square feet. So there will be no adverse impacts involved with approving this waiver request. The request does not nullify the intent or the purpose of the regulations, certainly one intent is to protect wetland, and given that this is a low-functioning wetland and given that we will not invade the buffer, the wetland will be protected, and the other purpose is to make sure that there is sufficient buildable area, which we have depicted on the other plan, given the nice flat area in the front of the lot and the well-shaped area there. Attorney Tilsley stated the rest of the requirements are pretty simple. A written request we have done, we have presented evidence to you today, you will presumably vote on the waiver and if the waiver is granted, it will obviously be noted on the plan. Finally in terms of the waiver, I would note that under your regulations we are entitled to the waiver if we meet the requirements in the ordinance. As you folks all know, it is important in these ordinances from a constitutional perspective to have a relief valve deviation from the ordinance in circumstances where it is appropriate as it ensures that there is no unconstitutional taking of property. The staff report in this case takes the position that you have never granted this waiver before and therefore you shouldn t grant this particular request. Our position is that that is not a valid basis for this Board to take action as upholding precedent is not why you have a relief valve or a waiver system. You have a waiver system for those cases where a party can meet the requirements specified in the ordinance. We believe that we meet those requirements for a waiver and we would respectfully ask the Board to grant it when it considers the full application. Attorney Tilsley stated other than that, Mr. Higginson is here to talk about any of the other surveying things. I know that there is an abutter letter that raises some issues about the leach field, so I will ask Mr. Higginson to address that and I will be happy to take questions and try to address your concerns. Thank you. Mr. Higginson stated the biggest concern that they seems to have was that there is a problem with the septic system at 60 Cider Mill when it was first installed and it had to be replaced shortly thereafter. In the 1980 s there was a number of innovative technologies that weren t nearly as good as what is out there now. I don t know anything about the history of that leach field but what we are proposing for a replacement system for that lot, as well as the new lot, would be Presby Environmental septic systems, which are used widely all over the world, and it will meet all of DES s regulations and work properly. Attorney Tilsley stated I know that the existing leach field is going to be removed on Lot 46, so that means we are going to have two new leach fields here. Mr. Higginson stated yes, on Lot 46 and the new lot. Mr. Pincince stated the VHB report says that this project should contribute to the fair share roadway contribution. I assume that you are aware of it and that you saw VHB s report. Do you have a comment relative to that? Attorney Tilsley responded we are aware of it; it is in the report. If this is approved, we expect that that will be a condition. Ms. Hebert stated that amount is in the staff report and it is $7,723, which is Condition #8

9 Planning Board Minutes June 26, Mr. Fairman stated you said you are not doing anything in the buffer zone but you are rebuilding the stone wall in the buffer zone. Is that correct? Attorney Tilsley responded I suppose that is true, correct. There is no house construction. Mr. Fairman stated you actually are doing construction in the buffer zone. Attorney Tilsley stated the stone wall will be relocated there. There will be no home construction in the buffer zone. Mr. Fairman stated construction equipment will have to go into the buffer zone to build that stone wall. Attorney Tilsley responded during the stone wall piece, yes. Ms. Hebert stated to clarify, there is nothing on the plan or proposed to permanently restrict the land within the buffer zone, so a new homeowner could come and decide to put a shed in the buffer zone, decide to put a playset in the buffer zone; so at this time there is nothing that is permanently protecting that land. I understand you are not disturbing it as part of your proposal, but just so it is clear to the Board, there is nothing that is permanently restricting use of the land for future buyers. Attorney Tilsley responded my understanding is that that buffer remains off limits for development because it is the buffer. I am not asking you to allow us to invade the buffer; I am just asking to include the buffer area in our calculations of the square footage. I am certainly happy, if it makes the Board or staff more comfortable, to make it a specific condition that there can be no construction other than the relocation of the stone wall in that buffer. The intent is not to leave a backdoor to put something out there. Ms. Hebert stated in Bedford it is not a buffer, it is just a setback, so it is a structural setback. There is no language in our ordinance that requires landowners to protect or leave that area within 50 feet of a wetland as in its natural state in the future. Attorney Tilsley stated we would be happy to have that as a condition; that is fine with us. Ms. McGinley stated the very first motion that I made on the Planning Board more than 10 years ago was for a substandard lot. I made a suggestion that appropriate restrictive language be put in the deed not just on a plan because no regular non-lawyer looks at land, they look at deeds. I made the motion, it got seconded, and it got voted down, and then the applicant came back with the actual restriction at the next meeting and it was adopted. One of the real reasons that it was voted down the first time was that there was a concern that the future owners would build where they were not supposed to build and this is going to have a long life after it is sold and the house is built. I have a couple of questions. What size is this house? Attorney Tilsley responded I believe what has been proposed, and Mr. Higginson can correct me if I am wrong, 40-foot x 30- foot plus a garage. Ms. McGinley asked how many square feet is that so everyone can understand? Mr. Higginson replied 1,200 square feet for the house for one level. Mr. Gallo stated probably 2,500 to 2,700 square feet. Ms. McGinley asked and the developable area within the buildable area that you have marked in terms of what if they want a swimming pool, what if they want swing sets, all types of normal household additions that one might have. Can you talk about that? Attorney Tilsley stated Mr. Higginson can show us the limits of the buildable area. Mr. Higginson stated so there is room behind the house certainly for a deck and swing sets, you are not going to get an Olympic size pool in there, I haven t measured it, but you could probably get some type of pool in there if that was a goal. Mr. Gallo stated that house can also move forward a little bit. It is back even a little further off from the setback than the neighboring house. There is side yard, there is front yard, and there is backyard. Ms. McGinley stated you mentioned a constitutional issue. What is the constitutional issue? Attorney Tilsley replied my concern is if the Board were to deny this simply because you never

10 Planning Board Minutes June 26, grant requests for waivers due to substandard lot size, the suggestion in the staff report was we don t want to break the ice here and grant the first one. I think if that was the Board s decision and it was based on that determination, that would be a constitutional issue. I think the Board, as I said, needs to apply the waiver criteria to the request and determine whether we are entitled to a waiver under the standards set forth in the ordinance. Ms. McGinley stated I don t see the constitutional issue and it has been granted before. Our current staff wasn t staff at the time. Ms. Hebert stated just to clarify, the reason for staff to not support the waiver is because we are not aware of it being applied for and granted by the Board on numerous occasions. Ms. McGinley stated that is only one I can remember in the years that I have been on the Planning Board. Ms. Hebert stated we do feel like it would have somewhat of a nullifying affect because we have a lot of land in Bedford that you could sort of gerrymander new lots out of if you tweak the lot lines and people move into neighborhoods expecting certain standards and the land has been planned using certain standards, so we felt like there might be an issue with changing the character of the neighborhood by allowing this lot to be constructed with less than the required about of buildable land. We also see people come in wanting to build that pool or wanting to put the shed in and not having enough land on their lot to do what they want to do and that sends them down the path of needing to get a variance or not being able to fully utilize their land as they anticipated because they weren t aware of the restrictions when they purchased the lot in the first place. It is not something that we have come across frequently. Ms. McGinley stated I don t have a problem with varying sizes of houses in neighborhoods. This is kind of an older section of Bedford, so I would assume there are a variety of homes there. Mr. Connors stated the homes were built in the early 1980 s. Ms. McGinley stated and it was granted once since I have been on the Planning Board and may not have been granted before that because it took some work. Any restriction would need to be in the deed. Attorney Tilsley responded that is fine with us. Ms. McGinley stated I want to hear from people in the audience if there is anyone in the audience. I do have a concern but it is not so much the size of the house but the functioning of the property and the fact that future owners will be a headache for the Town and the staff because they won t understand this, they won t understand not being able to build on their lot like others built because of this wetland. And the low-functioning quality that you pointed out; recently we had meetings with the Conservation Commission having to do with changes to the Performance Zone wetlands setback and the members of the Conservation Commission, which run into this issue more often than our Board, believe that all wetlands are valuable and even though it is a smaller one, it is still important to our ecology to keep them. Mr. Hawkins stated in accordance, and along with what Ms. McGinley is saying, that is my question and my concern. Is the notion of low-functioning versus other-functioning, higher levels of functions to a wetland and what sort of calculation, does it affect the function of the wetlands contribution to the calculation of the setback and there is none that I am aware of. It sounds to me, and correct me if I m wrong, like the basis for your waiver request is hanging quite heavily upon this notion of this being a low-functioning wetland and also allowing the square footage in the buffer zone to be added to closer resemble the 20,000 square foot requirements of the ordinance is not holding water with me. So convince me. Attorney Tilsley responded there are two ways that we look at it. The first way is because of the shape of the buildable area. As we showed you on the prior plan, we can accommodate easily a normal sized single family house, garage and have a sufficient backyard, which is really the requirement of this particular ordinance. Give us a

11 Planning Board Minutes June 26, building envelope that people can get what they expect to get, and because this is a nice, solid, wide, flat area, it is not one of those gerrymandered building envelopes where you get 20,000 square feet with 17 legs. This is a nice, pretty evenly shaped building envelope. That in and of itself gets us there. The other way to look at it is this wetland buffer. I understand what you are saying and I am not trying to suggest that this is not an important wetland, but it is classified as low-functioning. We are not proposing to do anything, other than the stone wall relocation, within the buffer zone. So we are not asking you for relief or the Zoning Board of Adjustment for relief to allow us to do something in the wetland buffer, we are just saying to you if you look at it from the fact that this is a low-impact wetland, it doesn t need to be buffered in the same way that other wetlands would need to be buffered, and so you would have the 20,000 square feet. Again, we are not going to use it, so I am not asking you to allow us to go in there and build something there, I am just asking you to think about that in terms of the waiver request and why a waiver would be appropriate in this situation. Ms. McGinley stated the well is in the buffer. Will the installation of the well affect this wetland area? Mr. Higginson replied the well is in the buffer. It is in the same area where the stone wall would be relocated, so at the time of construction it would impact it. Obviously there would be silt fence installed to protect the wetland and then once construction was complete, in theory, it would never have to be affected again. Ms. McGinley stated but explain to the Board how bringing equipment in to dig a well doesn t have an effect on this wetland. Why would it not have an effect? Mr. Higginson replied it is going to have an impact to the buffer because there is going to be earth disturbance, but it is going to be upgrading it from the wetland and the wetland will be protected through siltation controls while the construction is happening, so there should be no effect to the wetland itself and then the buffer would be allowed to revegetate and go back to the state that it is in now. Town Manager Sawyer stated we keep calling this a buffer; it is not a buffer, it is a setback and today if you had 20,000 square feet of buildable area, you could grade that entire area all the way down to the edge of wetland, you could pave that whole entire area, you are overly restricting yourselves potentially, depending on how the Board feels on the waiver, but it is not a buffer. I don t want people to say we are disturbing something. We don t have a requirement for a buffer in Bedford. Staff can correct me but I think they have already said it. It is a structure setback, so you can pave it, you just can t put a building on it or a shed. So putting things like a well typically in areas like this. Mr. Fairman asked but the reason for having a 20,000 square foot area is so that things like the well are inside that 20,000 square feet? Town Manager Sawyer responded not necessarily; it was for pools and sheds and separated garages, things that we were typically seeing in Bedford. Maybe Councilor Bandazian was on the Board when that was adopted but I don t think anybody else was. Councilor Bandazian responded not on the Planning Board but the Zoning Board of Adjustment for 17 years where we saw these things come up routinely and property would change hands and new owners would come in, they would have an irregularly-shaped building envelope, put a deck, a pool, a shed, you name it, over the line and then come in and ask for forgiveness, so that is why we picked that number of square feet and required it to be regularly shaped. Town Manager Sawyer stated they could grade it for a backyard and have a fire pit or something, anything that is not a structure, in that area already provided they had the 20,000 square feet. I thought by the level of detail that we were getting is that was the house you were going to build and that was the grading plan you were going to implement, but it sounds like there is still the ability to move the house more forward. Is this the footprint you intend to build or is there another one? Attorney Tilsley replied I think it is what

12 Planning Board Minutes June 26, we intend to build but if it gives the Board more of a comfort level to move it up, we would be happy to try to make that happen. Mr. Cote stated I have a question for staff. You keep saying at this slope that it is 20,000 square feet. If it is a flat lot, is that number different from 20,000 square feet? Ms. Hebert replied it is. Mr. Cote asked and what is that? Ms. Hebert replied it is 13,000 square feet. Town Manager Sawyer asked and the entire lot is steeper slope? Mr. Higginson replied the back of it from the wall relocation area and back is the steeper slope. The front portion of it is a lot closer to that 8 percent, which would the 13,000 square-foot threshold. We kind of looked at it both ways and just decided to present it this way going for the excess land to meet the 20,000 square feet versus the slope of the 13,000 square feet. Town Manager Sawyer stated it is going to be real close. Mr. Fairman stated on the chart that is posted now you show the wall to be relocated. Is that the correct wall to be relocated where you have it here or is it a different wall that is being relocated? On another chart it looks like the wall that is being relocated goes under the house and on this chart it doesn t. Mr. Higginson replied the wall that goes under the house has been grayed out a little bit so that it is not as much of a focal point on this plan because it is going to be removed from there, and then the new portion of wall is not shown on here. Mr. Fairman stated I see where you say wall to be relocated in the mid-top of the plan and it points at a different wall. Do you see my question? Is that a second wall that you are going to relocate? Mr. Higginson replied the grading plan came after that wetland exhibit and the engineer decided to put the wall in this location versus horseshoeing around the wetland and it didn t get changed on the original exhibit. So this shown is the proposed area to relocate the wall, which is shown on the grading plan. Acting Chairman Newberry asked where is that coming from? Mr. Fairman stated from underneath the house, which is very different than the other view. Mr. McMahan asked could you show us where the proposed septic system will be, where the Presby will be installed? Mr. Higginson indicated it on the posted plan. Acting Chairman Newberry asked what happens on the adjacent lot, the one up Cider Mill? Mr. Higginson replied the existing septic is as shown; it would be tucked in down here by the deck. Either right in here by the deck or over in this vicinity. We did the test pit where indicated, and have this whole 4K box that we can work with but we would keep it as close to the house and the existing leach field location as we can. It hasn t been designed yet so I don t know exactly where it would go but there is adequate room there to install it. Acting Chairman Newberry asked for comments or questions from the audience. Faith Schuetz, 306 Joppa Hill Road, stated I was at some meeting where buildable square footage was being discussed and my recollection is that part of the concern was drainage and soils and such and the water table for individual septic systems that when you have houses with individual systems that you don t want to put them too close together and have them on too small a drainage area, so I thought that that was a factor in the buildable square area part not just storage sheds and swimming pools. It seems to me that there is a basic concern about whether the regulations that Bedford has for building really have any teeth to them, whether they really matter if you can make an exception for a lot that is clearly substandard according to the regulations when there is not a hardship case that you are invalidating having the regulations in

13 Planning Board Minutes June 26, the first place, so I have a concern with that. Also the quality of the wetlands that there may be certain standards that are being looked at, I m not sure, but if you are going to declare some wetlands are worth keeping and some aren t, some are substandard like this isn t a very good wetland, so we will pay attention to this one, that that also seems like an area of potential difficulty down the road. Thank you. Christopher Schuetz, 306 Joppa Hill Road, stated I noticed the markings of where the wells are and I am concerned that you are not supposed to have the septic system within the area of the 75- foot radius of the well. Is that correct? It is also of concern to me that the septic system is uphill of the well on the proposed lot, if I understand where they want it. Also, it appears to me that if you move the lot line, the leach field for the existing lot would not be within the 25 foot setbacks from the edges. The other suggestion was if you are going to move the stone wall, you ought to continue the stone wall that is along the road on Cider Mill rather than sticking it down in the middle of the backyard there. But of particular concern is that the amount of trouble that they had with the leach fields. The drainage there, they have the same soil pretty much as we do and it is very slow draining, so it was difficult to find a place where it could be and they had to end up putting a larger leach field than expected I think. I was just concerned that the proposed leach field, I guess, is that what the half-moon circle is, is that where the test pit is? I don t know what the symbol is for that. I didn t understand where you said you were going to put those new leach fields. Mr. Higginson stated there is a test pit as shown and the other as shown where we are going to put the proposed leach fields in the vicinity of those. Mr. Schuetz asked that half-moon is the test pit? Mr. Higginson stated yes, the symbol is a circle and half of it is blacked out. That is the test pit area. Mr. Schuetz asked you are going to put it up in the corner by the road, the other one, but it is still uphill of the well and I thought that was not allowed. Acting Chairman Newberry stated I believe that septic design has to be approved by the State. Mr. Schuetz replied right, but if there is no place on the buildable lot for a septic system that is not uphill of the well. Acting Chairman Newberry responded if it doesn t meet the State requirement, it wouldn t get approved. Mr. Schuetz asked I guess the question is the precedence. If you approve the lot realignment and then they don t get the septic approved, then they just have a lot that they can t build on? Acting Chairman Newberry replied if they don t have an approved septic system, they are not going to be able to develop it. Ms. Hebert stated they won t have a final approval, so if the Board were to approve this tonight, it would be conditional on receiving the State subdivision approval. We would have assurances from the State they felt comfortable that a State approved septic system could be developed on the lot before the plan was finally approved and recorded and the lot was created. Mr. Schuetz stated and just as a point of information, we were here in 1980 and the old Joppa Hill Road is what those stone walls are going down to the stream and the power lines used to go along that road too. They have been moved after-the-fact. Acting Chairman Newberry asked just for clarity, you are the Mr. Schuetz from the 3-item letter that we have? Mr. Schuetz replied yes. Mr. Fairman stated I have a question for staff. Mr. Foote isn t here; do we know that the sight line is okay from this driveway? Mr. Connors replied yes it is. It meets the Town requirement distance from the intersection.

14 Planning Board Minutes June 26, MOTION by Mr. Cote that the Planning Board to grant the waiver from the Bedford Land Development Control Regulations, for Section , requiring each lot to have adequate buildable area. There was no second to the motion. Town Manager Sawyer stated I was hoping you could, again, try and clarify for me the 0 8 percent area in the front of the lot, how far back that really goes, because you are just under the 13,000 square feet, and I didn t know if there is an alternative lot line arrangement that might get you to 13,000 square feet, but if the slopes in the front of the lot aren t going to meet the 0 8 percent. Mr. Higginson replied we looked at it and we couldn t come up with a configuration to meet that. It was close but we couldn t get it. Acting Chairman Newberry asked how close roughly? Mr. Higginson replied I don t remember. It was a while ago that I did these calculations. Acting Chairman Newberry asked better than 37 percent? Mr. Higginson replied absolutely; I think it was probably in the same 60 percent category that we are with the 12,500 square feet. Acting Chairman Newberry stated I say 37 percent because that is what you are shy now. If you took the area below 8 percent slope and divided it by the 13,000, I am confident that we would have 37 percent but some of that area also overlaps. Acting Chairman Newberry stated no, what I was asking is if bringing it forward so that you could come closer to the required 13,000, how much closer are you than the 37 percent you are currently lacking to make the 20,000? Mr. Higginson replied what hinders us from moving the building area forward anymore is the front setback. So all the area that is flat we have included in this area right now. Town Manager Sawyer stated the only area they could gain would be moving the lot line closer to the adjoining house but I don t know what you have for frontage. Mr. Higginson responded the problem with moving it closer to the existing house is that we are fighting the building setback line to the existing house so I can t move it more to that side. Town Manager Sawyer stated you have a little bit in the front, but I don t know what you have for frontage on that lot. I can t read it on our reduced plan. Is it right at 150? Mr. Higginson replied yes. Town Manager Sawyer stated so that line can t move either, so they can t gain the extra square footage they would need to meet the 13,000 requirement. Mr. Higginson stated there is plenty of excess buildable square footage on the existing Lot 46, but given the way the slopes are in the back and the orientation of these existing improvements, we wouldn t be able to do that without making some sort of a non-typical lot line. It would have to be something that had some sort of a dog leg or a big jog in it to make it work. We were trying to keep with the normal lot line regulation and not make something that had a big pork chop in it to get that. Town Manager Sawyer stated the double frontage lot is also costing them 10 feet along one side or the other; if you want to say that, show that as a reason. Ms. McGinley asked because of the side yard setback? Town Manager Sawyer replied it is small yes, so right now it is 35 feet on both Joppa Hill Road and Cider Mill whereas if one of those was a side, it would be 25 feet, so you would be gaining 10 feet along the length of that roadway, but that also might have gotten you closer to 13,000 if it was all in the front. Ms. McGinley stated that is because you have two front setbacks. Town Manager Sawyer responded yes. Mr. Gallo asked Town Manager Sawyer, when you have different slopes on a lot and the 0 8 percent slopes are part of it and 8 20 percent slopes are another part of it, how do you do that configuration? Where is the cutoff point? Town Manager Sawyer replied I think the ordinance