Rye Planning Board. Meeting Held at the Town Hall Meeting Room 7:00 P.M. MINUTES OF THE MEETING June 9, 2009

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1 Rye Planning Board Meeting Held at the Town Hall Meeting Room 7:00 P.M MINUTES OF THE MEETING June 9, 2009 Members Present: Chairman Donald Cavallaro; Vice-Chair Mel Low; Clerk Martin Zivic; Selectmen s Rep. Priscilla Jenness; Mark Galvin; Patricia Weathersby, Samuel Winebaum, Alternate Bill Zechel. Absent: Robert Brown and Jaci Grote Also Present: Attorney Michael Donovan, Planning Administrator Kimberly Reed. 1. Call to order and Pledge of Allegiance Chairman Cavallaro called the meeting to order at 7 p.m. and led the Pledge of Allegiance. Mark Galvin arrived at 7:05P.M. Chairman Cavallaro requested that alternates present at the meetings sit in the audience. Also, any members that need to recuse themselves will sit in the audience. He asked for cell phones to be silenced. 2. Approval of the May 12, 2009 Minutes Action Required. Page 1- The word aquafer should be aquafir is switched and should be the other way. Page 4 - Chairman Drake should have been Chairman Cavallaro Page 5 After Attorney Pelech spoke, add; Chairman Cavallaro clarified the TRC makes suggestions based on typical questions the Board has and not specific requests. Page 5 After the Motion (2 nd Paragraph); Martin Zivic returned and Robert Brown back to audience. Page 2 Chairman Cavallaro stated that even though the pavers are porous; Should read: Chairman Cavallaro stated that even though they are porous pavers. Page 3 5 th paragraph from bottom; Eight percent of the water will go straight through the pavers. Eight percent does not seem right. (Maybe eighty). Page 8 2 nd paragraph; Motion made by Mel Low to approve waivers #1, #3, #4, #5 and #6. Should read; Motion made by Mel Low to approve waivers #1, #2, #3, #4, #5 and #6. 3. Public Hearing on Proposal Action Required. 1

2 Minor Site Development Plan for 50 Lafayette Road, Tax Map 14, Lot 17 the property of 50 Lafayette Rye Realty for the existing building to be used by New England Building Materials for office storage. It is not a retail space, it is office space for 3 employees to work on blue prints and meet with builders.; File 03-09; Motion by Mel Low to continue until July, 2009 meeting. Seconded by Martin Zivic. All in favor. Site Development Plan for 11 Sagamore Road, Tax Map 24, Lot 24 to replace the building that burned down in order to reconstruct for a new dry cleaners and art gallery in the Commercial District, on an approximately 20,000 square foot lot. File No.: Chairman Cavallaro stated that the Engineer, Chris Albert has requested that the Board wait for his application since he had a site walk in another Town and would be along shortly. Motion by Martin Zivic to suspend the Rules of Order, to allow 11 Sagamore Road Application to go out of order to accommodate Mr. Albert. Seconded by Patricia Weathersby. All in favor. Final Minor Site Development Plan for 25 Lafayette Road, Tax Map 14, Lot 10 by Sandra Wing, owner of property to operate an automotive sales and service related business which has been on the property since the mid-1960 s and the proposal is to continue to use the property for similar use. File Applicant requests a continuance to the July meeting. Motion by Mel Low to continue until July, 2009 meeting. Seconded by Priscilla Jenness. All in favor. Final Minor two-lot subdivision for 531 Central Road, Tax Map 4, Lot to separate a parcel into a house parcel of about 2 acres and a separate tract of non buildable woodlands area for future conservation use. File Chairman Cavallaro stated that the Board had some questions on wetland documentation and asked for an update. Judy Sponaugle, the applicant, addressed the Board. She stated that in collecting her information, she found that the Rye Master Plan of 1998 has the proof of the land being wet. Member Galvin commented that it should have shown up on the Topographical Plan. He stated that this is extremely inadequate documentation. Selectmen Jenness commented that having grown up in Rye, she can say that this land is wet. Member Weathersby asked what is in the Master Plan. Ms. Sponaugle went over the map, plate 16. 2

3 3 Chairman Cavallaro asked if the marking, at the bottom of the plan, the 125 circle applies to the whole lot. Ms. Sponaugle confirmed. Member Zivic asked what the 125 means. Member Galvin replied Scarborough muck. Attorney Donovan confirmed that it states on the plan, 125 Scarborough Muck. Member Galvin commented that there is no proof that there is nothing but muck on that lot. He stated that as a Planning Board member, he would not say it was not buildable without a further survey. Attorney Donovan referred to Plate 5 and stated that this map is the fresh water and salt title wetlands. He pointed out the freshwater wetland, commenting that it covers the entire parcel. Chairman Cavallaro asked, if based on the documentation, does anyone think that anymore notes need to be added to the plan? Member Galvin stated that on the plan to be recorded, it is not stated very clearly that the lot is not buildable. Attorney Donovan replied that it is note 11. He commented that he had suggested a rewording. Member Galvin suggested striking the wording due to lack of frontage, on note 11. Ms. Sponaugle referred to the letter from James Verra, LS, of James Verra & Associates, Inc. She stated that Note 11 shall read: Lot shall not be further subdivided for residential development. This restriction shall not preclude lot line adjustments which would enlarge one or more of the adjacent lots nor shall it preclude the sale of the lot to an abutting land owner. She continued that Note 12 states: An access easement over lot to Lot shall be provided and recorded with the subdivision plan. Attorney Donovan advised, that in order to provide language everyone can be satisfied with, modify Note 11 to read: Lot is unbuildable due to lack of frontage. Then continue with his further recommendations. Member Galvin commented that he would leave due to lack of frontage off. That draws everyone to believe that if they have frontage that they are all set. Whereas, the plans now show that there is no frontage and it is wet. Chairman Cavallaro stated that they need to accept jurisdiction. Motion by Mark Galvin to accept jurisdiction. Seconded by Priscilla Jenness. All in favor. Chairman Cavallaro opened to the public. Hearing none, he closed the public. Chairman Cavallaro asked the Board if they would like to act on the waivers or Notes first. Member Galvin replied to go with waivers.

4 Chairman Cavallaro read the waivers, as presented in the Waiver Request, submitted by Applicant, Judith Sponaugle, JBS Conservancy Trust: 1. Waiver request for Final Topo/Soils Plan Section 404.A and Section 403.1E. We feel that these are not needed because the first lot is already built upon and has our house and will not be changing. The second lot being sectioned off is wet. Member Winebaum questioned the Name of Proposal being JBS Conservancy Trust. Ms. Sponaugle clarified that this is her initials. They are thinking of putting it into a Trust. Chairman Cavallaro asked for clarification on the statement that it has to be divided into something else. Attorney Donovan explained that if the lot stays in common ownership, it is merged for the purposes of planning and zoning, however, it can still be sold. She does not need to put it into a separate ownership. Ms. Sponaugle asked if the subdivision process can be just for convenience. Attorney Donovan replied that by recording the plan the owner is able to sell the lots or leave unsold. Ms. Sponaugle asked if just because she wrote it down, does it mean she has to do it? Attorney Donovan replied that it does not. Motion by Mark Galvin to provide a waiver for Final/Topo Soils Plan Section 404.4A and Section 403.1E due to the extremely minor nature of the lot line adjustment and appropriate soil designation on the plot plan. Seconded by Martin Zivic. Chairman Cavallaro asked for any other discussion. Member Weathersby asked to discuss the emergency easement agreement not noted on the plan. Member Galvin replied that they are not voting to approve the plan. They are just voting on the waivers. Member Weathersby was satisfied with this response. All in favor. 2. Waiver request for Water and Sewer Extension Plans, Section 404.4C because the built lot already has water provided by Aquarion and there is a septic system in place. Motion by Mark Galvin to provide a waiver for Water and Sewer Extension Plans, Section 404.4C, since there are no new buildable lots created in the plan, therefore no new water and sewer extension is required. Seconded by Martin Zivic. All in favor. 3. Waiver request from the Town of Rye, Land Development Regulations, Section F. waiver request because the listed items in the Permit List do not apply. Chairman Cavallaro read the permit lists from Land Development Regulations. 4

5 Motion by Mark Galvin to waive the Land Development Regulations, Section 405.2F, for list of permits which are not applicable to this plan. Seconded by Martin Zivic. All in favor. Member Galvin stated that he would like to see non-buildable back on the plan for consumer protection. Member Zivic agreed that it would better to have non-buildable on the plan. Attorney Donovan clarified that Note 11 would read: Lot is non-buildable. Lot shall not be further subdivided for residential development. This restriction shall not preclude lot line adjustments which would enlarge one or more of the adjacent lots nor shall it preclude sale of the lot to an abutting land owner. Chairman Cavallaro pointed out Note 12, regarding access easement. Note 13, regarding emergency access is optional. Attorney Donovan stated that that any lot, buildable or non-buildable, should be provided with access, which is different than frontage and being buildable. James Verra suggested Note 12: An access easement over Lot to Lot shall be provided and recorded with the subdivision plan. Note 13, regarding emergency access, shall read: An emergency access easement over Lot to Lot shall be granted to the Town of Rye and recorded with the subdivision plan. He clarified that the first Note gives a new owner a right of access over existing lot. The second Note gives the Town emergency access. He pointed out that this is probably not needed as the Fire Department has the right to go under anyone s land and is not liable. However, it is provided if it makes the Board more comfortable. Chairman Cavallaro asked if the abutter buys the land, they provide the access? Attorney Donovan explained that the easement could be written so that if the land is sold to an abutter, the easement is extinguished. There will be access through the abutter s lot. Chairman Cavallaro asked if the Note was okay. Attorney Donovan replied that it is okay. The condition is that Note 12 is put on the plan and the easement to be reviewed by Town Counsel. Then the Chairman is authorized to sign the Subdivision Plat once all the conditions have been met. Attorney Donovan summarized: 1. The words Non-Buildable lot to be on the plan. 2. Note 12, per the Verra letter of June 8, 2009; added as first sentence to Note 11; Lot is non-buildable. 3. Escrow set up for Town Counsel legal review of easement language and easement deeds. 4. Chair may sign when conditions are met. Attorney Donovan further explained that if the Town Counsel approves language and the Applicant files something else this would make the approval invalid. This is handled through Planning Administrator Kim Reed in the recording process. Ms. Reed has set up an efficient process for getting this done. The instruments that are approved by Town Counsel are the instruments that are recorded. Motion by Mel Low to approve with conditions as listed. Seconded by Patricia Weathersby. All in favor. 5

6 Site Development Plan for 11 Sagamore Road, Tax Map 24, Lot 24 to replace the building that burned down in order to reconstruct for a new dry cleaners and art gallery in the Commercial District on an approximately 20,000 square feet lot. File No.: Kim Reed handed out the changed plans and correspondence from OEST and Attorney Donovan. Martin Zivic recused himself and Bill Zechel was seated for Mr. Zivic. Chairman Cavallaro asked Mr. Albert to summarize the changes. Chris Albert, from Jones and Beach Engineers, Inc., presented the changed application stating that he had made revisions to reflect the concerns of OEST and the Town Attorney. He explained that he went back to his client and reduced the building but had to get rid of the maple tree. The Board has a complete set with title block updated, note 5 with the waiver taken out and snow storage not on the leach field. He referenced the letters from Attorney Donovan and OEST, stating that it is a cleaner traffic pattern, adding that the OEST item #3 was removed and item #4 is on Sheet C-3. According to Attorney Donovan s letter dated June 5, 2009: The building footprint has been reduced (again) from 40 ft. x 52 ft. to 36 ft. by 50 ft. = 1800 sq. ft. This is a reduction of 10% in footprint area from the plan presented to the planning board on May 12, The corresponding reduction in interior commercial space results in a need for 12 off-street parking spaces, which are provided on the revised site plan the parking/circulation layout, is an acceptable plan. It is much safer and more workable than the diagonal parking layout presented on May 12, Chris Albert stated that they could not save the tree in order to accommodate the 12 parking spaces and the loading area. He proceeded to go over the points in his letters dated June 9, He accommodated almost everything except for the utility pole as requested in the OEST letter dated June 5, 2009 due to the problem of it being on the neighbor s land. Mark Galvin stated that if they run into problems they can come back adding that they are probably grandfathered anyway as far as the utilities go. Attorney Donovan said they may not be grandfathered for the pole and utilities. Sam Winebaum wondered what the previous building had and talked about slabs. Mark Galvin made a motion to accept Jurisdiction over the application. The motion was seconded by Sam Winebaum. All in favor. Chairman Cavallaro opened to the public. Hearing none, he closed the public. 1 The original proposal was a 44 ft. x 56 ft. building. The present proposed footprint represents a 27% reduction in area from the original proposal. 6

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10 Chairman Cavallaro stated he needed to understand the 611 waiver. 10

11 11 Attorney Donovan stated 611.5c was no longer required due to the changes to the plan. Chairman Cavallaro asked if the applicant could stencil the employee parking spots. He stated the applicant has gone from waivers/variances to almost nothing and being compliant. Mark Galvin stated he felt the applicant has done a good job. Mel Low pointed out it is easier to get to. Chairman Cavallaro asked if there were any other conditions besides the ESCROW. There was a discussion whether OEST would inspect the construction or the Building Inspector. It was agreed that OEST would inspect. Attorney Donovan stated the revised building elevation could be filed with the Planning Administrator within 60 days as another condition. Mark Galvin suggested an As Built plan. Attorney Donovan stated no building permits may be obtained until the Plan is signed and recorded. The elevation with the Planning Board will not delay the signing of the Mylar. Discussion on how many months the applicant has been working on this and that it has been since January between both boards and they have done a great job accommodating and working with the Boards. Attorney Donovan summarized the conditions: 1. Take Note 5 off the Plans 2. Establish an Escrow for payment of Attorney and Engineer review fees 3. Establish an Escrow for Construction Inspection 4. Elevation Drawings to be submitted within 60 days of approval 5. Chairman to sign when the conditions (minus the elevation) have been completed. Mark Galvin made a motion to approve the Site Plan with the conditions, 3 of which are met before signature, then the elevation drawings to be submitted 60 days after approval. Mel Low seconded the application. All in favor. Bill Zechel returned to the audience and Martin Zivic was re-seated at the table. Lot Line Adjustment for the Wentworth by the Sea Country Club 60 Wentworth Road Tax Map 24, Lots to acquire one (1) acre of land from Barbara E. Scammon RVOC Trust 2006 located at 4 Sagamore Road Tax Map 24, Lot 72 ton increase WBTSCC total acreage to 109 acres. The purpose is to have more buffer area around the grounds maintenance facility; File Mark Galvin stated to the Chairman that he would be recusing himself. Bill Zechel was seated at the table to sit for Mr. Galvin. Ms. Reed handed out copies of a letter from Attorney Donovan to the Board Chair. Mark Galvin asked from the audience for a copy of the letter under the Right-to-Know law.

12 Attorney Donovan handed him a copy of the letter and clarified that the Board made a distinction that as an abutter he would not get information in the Board packets. J. Corey Colwell introduced himself as the presenter from AMES Engineering and Bob Diodati, General Manager for the WBTSCC to discuss the application. Mr. Colwell stated that the Board has two sheets: The first is an existing parcel and the other parcel is the triangle parcel on map 24, lot 72 the heirs of Barbara Scammon. Sheet 1 is a master sheet and that the Sheet 2 is the nuts/bolts of the application. The Wentworth realized they were over the neighbors land and worked with them to relocate the boundary line. Mr. Colwell talked about the wetlands being identified on the plan and that the Topo was not required and felt the application was straight forward. Chairman Cavallaro said he had looked at this application at the TRC and discussed the application with the Town Attorney. It appears that all that is needed are the monuments. Attorney Donovan explained where he thought a monument should be placed. Mr. Colwell thought it was a good suggestion. Martin Zivic stated it was good practice. Attorney Donovan stated it was required and good practice. Sam Winebaum wanted to know why this was taking place. Mr. Colwell explained that the grounds keeper from the Wentworth, Jason, walked the property and discovered the error. Bob Diodati stated it was an inadvertent mistake and the superintendent thought he was on the Wentworth property. Sam Winebaum wanted to know if the Scammon s were aware of the lot line. Attorney Donovan stated they are the co-applicants in a lot line adjustment. Ms. Reed explained they received the Notice. Chairman Donovan opened the public hearing. Mark Galvin from 17 Heather Drive stated he was in support of this plan. Chairman Cavallaro closed the public. Sam Winebaum pointed out that it abuts Conservation property and wondered if they were aware. He wants that land respected. Ms. Reed explained the Dept Head Review process and stated that the Conservation Commission also received notice. 12

13 Attorney Donovan summarized the condition that a monument should be provided at the point north of the shed where the existing property lines intersect in accordance with the Land Development Regulations and reflected on the Plan. The Chairman may sign once the condition has been met. Sam Winebaum made a motion to accept jurisdiction over the application. Priscilla Jenness seconded the motion. All in favor. Mel Low made a motion to approve the Wentworth by the Sea Country Club and Barbara Scammon Lot Line Adjustment Plan with the conditions. Motion was seconded by Martin Zivic. All in favor. Bill Zechel returned to the audience and Mark Galvin was re-seated at the table. Conditional Use Permit for Aquifer Protection Zone and Request for 12 month extension of the approval granted by the Rye Planning Board to the Housing Partnership for the RCD Plan The Housing Partnership to build for the proposed 22 unit Retirement Community Development centrally located on the property located at 11 Airfield Drive, Tax Map 10, Lot 15-3 with a looped road and a club house in the center within the Aquifer Protection Zone. File Mel Low recused himself and was seated in the audience. Bill Zechel was seated at the table. Chairman Cavallaro asked the applicant to refresh the Board as to the reason they were before them. Attorney Michael Donahue, Partner of Donahue, Tucker & Ciandella, PLLC stated he represented the applicant, the Housing Partnership, which applied for and was granted an RCD (Retirement Community Development) with this Board. The project was approved in December, He continued by stating in the interest of caution and because of turmoil in the financial market, they filed for an extension to the 18 month rule. He then received a copy of Attorney Donovan s correspondence and they are prepared to withdraw the request. Marty Chapman, Executive Director of the Housing Partnership took the time to give the Board an update on what has been happening with the financing and where THP stands and as it turns out there have been interesting developments and there is a commitment on paper for a community development block grant (CMBG). He explained the tax credits and stimulus monies. He wrapped up by stating that they are confident that they will be prepared to begin this summer. Chairman Cavallaro asked Attorney Donovan to explain the letter. Attorney Donovan explained the reasoning behind the 18 month rule and referred to his letter dated June 8, 2009: The Housing Partnership s approvals of the December 11, 2007 Major Site Development (i.e. site plan) approval have been fulfilled, and the Major Site Development approval are vested until December 10, 2011 under RSA 674:39. Thus, compliance with the Aquifer Protection Ordinance is not required. The 18 month rule is a provision of the Rye Planning Board Land Development Regulations, which means it applies to conditionally approved subdivision and site plan 13

14 review applications. The Special Use Permit requirement for an RCD is a zoning ordinance requirement. It is not a requirement of the Land Development Regulations. Thus, for the purposes of applying the 18 month rule, it is the Planning Board s December 11, 2007 approval of the Major Site Development application which is relevant. This means that The Housing Partnership had until June 11, 2009 to complete the conditions of approval of the Major Site Development application, which are: Certifications by the Town s Engineer, OEST that all items are completed. The applicant receives the Alteration of Terrain Permit from NHDES. The applicant returns to the Planning Board for completion and approval of the Special Use Permit. The DES Alteration of Terrain Permit was issued on March 14, It is my understanding that all of the changes requested by OEST have been made to the plans. The applicant returned to the planning board and received conditional approval of its Special Use Permit on February 12, In my opinion, the conditions of the December 11, 2007 Major Site Development approval have been fulfilled. If the Planning Board agrees with this conclusion, the 18 month rule of Section does not apply. An extension would not be required, and The Housing Partnership would not have to comply with the Aquifer Protection Ordinance. Further, under RSA 674:39, the approval would be vested for four years, until December 10, Martin Zivic asked if there was certification by the Town s Engineer. John Chagnon, AMBIT Engineering handed out copies of the Alteration of Terrain permit and a January 2008 letter from OEST stating they were in compliance. Attorney Donovan read the letter from OEST dated January 28, Martin Zivic stated it removed any doubt for him. Mark Galvin questioned the vesting. Attorney Donovan read the RSA 674:36 which pertain to grandfathering, active and substantial developments get vested If it is not defined by the Planning Board then they get the four years. Kim Reed asked Attorney Donovan if the requirements need to be updated in the LDR or Zoning. Attorney Donovan replied on a case by case basis. He then stated that the Board could vote to accept his letter and the extension would not be required. Martin Zivic made a motion to move to accept counsel s recommendation and the extension is not required. Priscilla Jenness seconded the motion. 14

15 Mark Galvin asked for a discussion. He does not think it is right if the Site Plan is not required. The Board discussed the requirements with Attorneys and John Chagnon and asked what would be needed to fulfill recording of the Site Plan. Attorney Donovan stated he wanted Sheets C-2 and C-3 signed and recorded. Ms. Reed stated she wanted a full set of paper plans signed by the Chair and held for Town files. Attorney Donovan asked if they could be signed by June 11 th John Chagnon agreed that he could have plans ready and delivered to the Town Planner by June 11, Ms. Reed stated that sometimes the Chair does not come in and sign same day as plans delivered and asked if having them by the 11 th was sufficient. Martin Zivic amended his motion to follow the recommendations by Attorney Donovan and the plan will be presented to the Town Planner for signature by June 11, 2009; C1, C2 and C3. Motion was seconded by Priscilla Jenness. All in favor. Attorney Michael Donahue stated that for the record, he would like to withdraw his waiver and request for the 18 month extension and application for the Conditional Use Permit for the Aquifer Protection Zone. Chairman Cavallaro so noted and thanked all for attending. Mel Low returned to the table and Bill Zechel was asked to step down for member Low. Mel Low then announced that he wanted to start getting names of people from Rye to get into the RCD. 4. Non-Public Hearings: Action Required Request for Exemption from Site Review for Great Wave Marketing, Inc., located at Lafayette Road, Tax Map 10, Lot 7. The plan proposes change of use of the rear building (to convert 400sf on the first floor from storage space to office space.) File No.: Applicant requests a continuance to the July meeting. Sam Winebaum questioned how many times an applicant may request a continuance. This led to a discussion on the number that may be asked for. Attorney Donovan suggested that the applicant could be dismissed without prejudice if they do not feel the applicant is exempt. There was a discussion about the difference between the Wings Auto body request for continuance and Great Wave s. Motion by Patty Weathersby to continue the application for exemption from Great Wave Marketing to the July 14, 2009 Planning Board Meeting and to notify the applicant that it is the last continuance and if they do not appear before the Board, the application will be dismissed without prejudice. Mark Galvin seconded the motion. All in favor. 15

16 5. Non-Public Hearings: Action Required Escrow payments, if any 6. Committee Reports - Action Required ~ Special Planning Board meeting with the Zoning and Long Range Planning Committees was canceled for 6/23/09 at 7pm and rescheduled to July 22, 2009 at 7pm. Ms. Reed stated that Marty Klenke the Chair of the Capital Improvements Committee is looking for a full board member. Martin Zivic will consider it. 7. Communications/miscellaneous Motion made by Mark Galvin to adjourn at 9:20 p.m. Seconded by Mel Low. All in Favor. Respectfully Submitted, Dyana F. Ledger and Kimberly Reed 16