Minutes of October 6, 2004


Chairman Steve Hamilton called the meeting to order at 7:00 p.m. Members present in addition to the chairman were Joe Fitzpatrick. Geoff Gardner, Dave Jakway, Don Primrose, Ann Sweet, and Bob Switzer. Rick Hotchkiss represented the selectmen. David Barrett was also present.

Proposed voluntary merger of two Barrett lots at 189 Centre Street
Mr. Barrett had thought, since he had only one tax bill, that his two lots had been merged at the time of his purchase of the property. He wishes to effect that merger. Asked about the apparent use of the barn as a dwelling unit, he responded that the barn has been converted to a guest house. His parents have stayed there, and a friend is now living there temporarily. Given the footprint of the building, which is below standard for a dwelling unit, it was decided that the barn/guest house is an accessory structure and does not need a building permit. Question was raised about the driveways and whether the State has approved the one to the guest house. The procedure for conducting a voluntary merger as outlined in the subdivision regulations was described to Mr. Barrett. He will write a letter describing the property and the request for merger to the planning board. The planning board will consider the request at its November meeting. It will send him written approval, with copies of the floor plan of the guest house, noting that it is an accessory building, which he will file with the Registry of Deeds.

Master Plan Update
The final draft of the Master Plan update should be finished before the next meeting, although the planning board may want to consider adding a chapter about “regional concerns,” which could delay the completion of the final draft. As of now, however, the expected hearing on the Master Plan will take place at the Dec. 1 regular meeting of the planning board.

New copies of the subdivision regulations were distributed.

Drainage from Primrose driveway cut on Apple Hill Road
Chairman Hamilton reported numerous complaints about silt draining from the driveway cut on Apple Hill Road. He reminded Mr. Primrose that, although the new owner of one lot was doing the construction, Mr. Primrose, as the owner of the lot on which the cut is being made, is responsible for the conditions of subdivision approval.

Expansion of use on Csenge property on Centre Street
Mr. Primrose reported that activities on the Csenge property have expanded greatly. It is used for temporary storage of construction materials, processing (crushing) of materials, and storing of vehicles. It has become a hub for other companies. He needs to come in for Site Plan Review. Mr. Hotchkiss promised that the selectmen would visit Mr. Csenge and reiterate their previously made statement that Site Plan Review is required.

South Road Primrose property
Mr. Hotchkiss reported that the state has approved a septic design with a leach field that does not impinge on the 75 foot radius of either the old well or a new one, although the septic tank is within the radius of one well. The property plat needs to show a water line running to the adjacent Brooks property. Mr. Hotchkiss asked whether the driveway would pass muster. Mr. Gardner of the driveway committee responded that as long as the driveway that has traditionally served both properties continues to serve both, there should not be a problem. Otherwise, the driveway must be moved to meet setback requirements, and the Brooks property must have a new drive.

Property shapes
Mr. Hotchkiss noted with interest descriptions (on the state list-serve) from other planning boards describing how they have attempted to insure that lots created by subdivision are regular enough to be comfortable for residents over time. He suggested the Master Plan not recommend a formula but that a general statement be made about the need to create reasonably regular lots. He declared that the recent court decision affirming planning board discretion would suffice.

Need for an actual meeting of the ZBA when questions about conformance to the Community Planning Ordinance are raised
Mr. Primrose noted again that the informal decision of members of the Zoning Board of Appeals not to require a hearing when asked about the extension of a porch further into the required setback from the road on lower Centre Street was not right. There should have been a hearing with public notice and notice to abutters. Although the intrusion into the space is small and the result an improvement in the appearance of the house, the precedent of such informal decision-making could become a problem for the town. Mr. Hotchkiss promised to speak with the chairman of the ZBA.

Annual Law Lectures attended by Joe Fitzpatrick, Ann Sweet, and Selectman Mike Carney
Mrs. Sweet reported some of the points made at the three Law Lectures sponsored by the NH Municipal Association.

1. Adopted or amended subdivision or site plan regulations do not take legal effect until they are certified by a majority of the board and filed with the Town Clerk.

2. Preliminary consultation is considered so important that it can now be required, if approved at Town Meeting. The Sullivan Planning Board has found that every applicant wants preliminary consultation or agrees to the planning board suggestion for one, so such a requirement may not be necessary.

3. Although a planning board is required to consider an application within 30 days of receipt, an extension may be granted. The NHMA lawyer suggested having a standard form available that has the applicant or his agent acknowledge the granting of an extension.

4. Planning boards must remember to determine whether a project might have regional impact and then notify all extramunicipal abutters, including the regional planning agency.

5. Planning boards rarely have in-house expertise and should always get professional assistance. The NHMA points out that ground water resources have become an issue, and even a hydrologist may be necessary. NHMA suggests a fee schedule that would create a kitty for such assistance, including payment for a professional meeting minutes recorder.

6. The basic premise of any subdivision or site design should be that the project should not produce a net increase in water flowing from the subject parcel to adjacent parcels and should not cause detrimental effects on adjoining properties. Our subdivision and site plan review regulations should stress this point.

7. Driveway regulations should insist upon 400 feet of all-season sight distance.

8. Every subdivision or site plan should be the subject of a site visit by members of the planning board. Several members of the Sullivan Planning Board suggested this be done before the application is accepted as complete.

9. The planning board has new statutory authority to impose off-site improvement exactions as a condition of subdivision or site plan approval, limited to highway, drainage and sewer and water upgrades pertinent to a development.

10. The planning board must issue a final written decision whether it approves or disapproves an application for subdivision or site plan approval. When an application is disapproved, reasons must be given. The NHMA suggests developing a form that constitutes its Notice of Decision, in which all conditions of approval are stated (as they are on the plat).

11. Denying a certificate of occupancy if an applicant is carrying out work contrary to the approved plan is a means of enforcing agreements and regulations. If a town does not have a certificate of occupancy process, the town must go to court (Superior Court is preferred) to enforce its conditions or regulations.

12. A Capital Improvements Program must be adopted by a planning board.

13. Waivers must be issued in writing.

14. Planning boards do have discretion. In Summa Humma Enterprises v. Town of Tilton (May 2004), the court ruled: “Where the role of site plan review is to ensure that uses permitted by the zoning ordinances are appropriately designed and developed, restricting the board’s authority to the specific limitations imposed by ordinances and statutes would render the site plan review process a mechanical exercise.” The court further ruled that where the applicant “does not provide sufficient information upon which the board can apply the site plan regulations, it is proper for the board to deny the site plan application.”

15. The state’s solid waste management act (RSA 149-M) allows a municipality to initiate its own enforcement actions for solid waste violations, including for remediation of solid waste disposal sites such as unwanted tire piles, junk yards, and the disposal of wastes in unpermitted areas such as roads, gravel pits, or other private property.

16. Towns can be more restrictive than State when regulating streamside buffers and wetlands.

There being no other business, the meeting adjourned at 9:00 p.m.

Respectfully submitted,

Ann Sweet, Secretary