TOWN OF SUTTON

Planning Board

Pillsbury Memorial Hall

Meeting Minutes

August 25, 2015

Present: Planning Board Members: Carrie Thomas, Chairperson; Carole O’Connell, Bob DeFelice, Roger Wells, and Julie McCarthy, and Peter Blakeman, members; Dan Sundquist, Ex-Officio; Laurie Hayward, Land Use Coordinator (LUC); Cory Cochran, Sutton Fire Chief; Stephen Bagley, Sutton Road Agent; Betsy Forsham, Chair and Jane Williamson, Secretary for the Sutton Conservation Commission; Jae Whitelaw, attorney for Planning Board; Jon Feins, Applicant/owner; Chris Hawkins from Devine Millimet, attorney for Jon Feins; Martin Feins Abutter and relative of the Applicant/owner; Elizabeth Copeland , Aimee Ayers, and Peter Messer, Abutters; and interested members of the public, including Al Jordan of Jordan Landscaping.

The meeting was called to order at 7:04PM, by Carrie Thomas, Chairperson.

Administrative:

Minutes of previous meetings: The Chair asked for a motion regarding the minutes of previous meeting on August 11, 2015. Wells moved that the minutes of August 11, 2015 be approved; Blakeman seconded the motion and it was voted unanimously.

The Chair then asked the LUC to read the Notice for Public Hearing. The LUC read:

“You are hereby notified of a Public Hearing, which is a continuance of Case 2014-06, to be held on Tuesday, August 25, 2015 at or around 7:00 p.m. at the Pillsbury Memorial Town Hall, 93 Main Street, Sutton Mills, NH, concerning a request by Jon Feins, for a Minor Three-Lot Subdivision; located on Stonehouse Road; Sutton, Tax Map # 10-688,134 which is in a Rural-agricultural district.

You are invited to appear in person or be represented by agent or counsel and provide reasons why either or both of these requests should or should not be granted. Please address written responses to: Sutton Planning Board, PO Box 487, North Sutton, NH 03260. All written responses will be read into the record.

Documents are available for your review at the Town Office.”

Public Hearing: The Chair opened the Public Meeting. Jae Whitelaw, counsel for the Planning Board, opened with a statement describing the history of the case. She explained that the decision in late 2014 denied a subdivision approval on the grounds that it was “premature and scattered” and that decision was appealed. The Court reviewed the case and ruled in the town’s favor on some claims and in Fein’s favor in others. Whitelaw explained that in the end the Court overturned the decision and returned it to the Planning Board for further consideration consistent with the Court’s order. Whitelaw further explained that the Board will now pick up the case as though it is simply continuing on from where it left off last fall, except that it will be mindful of what the Court said in its decision.

The Chair asked Jon Feins to introduce his attorney. Chris Hawkins stepped forward and gave his name and that he works for the firm Devine Millimet.

The Chair opened, asking if the Feins and his attorney would like to confirm what was agreed at the last hearing in November. She suggested that they take up the minutes of the meeting of November 11, 2014 and go through item by item using those minutes and confirm agreed upon items. The Chair began to read from those minutes, starting with the issues of cisterns and driveways. Wells asked if they could go to the minutes of an earlier meeting first, noting that in the September 11, 2014 minutes, there was an offer made to “widen the r o a d to 50 feet along the frontage of the property in question”. He noted that his understanding was that the owner was offering to provide a 50 foot right-of-way along the road frontage for the entire site.

Hawkins asked that a few things be addressed first. He asked that Sundquist recuse himself before they move forward due to a perception that Sundquist is biased. Sundquist agreed to recuse himself, not because he felt there was any reason to recuse; but, in the interest of removing this point of contention.Sundquist stepped down; but noted that he also represents the Select Board and will remain and contribute from the floor.

Hawkins said that he feels the court sent this case back to the Planning Board not to gather more evidence but in order that the Board should approve it. Further, Hawkins stated that he feels that safety issues like sprinklers and driveways do not belong with the Planning Board. Hawkins stated that he feels the November 14,2015 meeting included a conversation with the Fire Chief, not agreements between Feins and the Planning Board. Whitelaw added that Hawkins is arguing that the Court intended that there be no further discussion about the condition of Stonehouse Road and its ability to carry additional traffic or other additional information which is an interpretation with which she does not agree.

Wells moved that he does not agree with owner’s counsel regarding the Planning Board and that the Planning Board shall proceed and consider additional information. Blakeman seconded the motion and it was voted unanimously.

The Chair again asked that they take up the areas that they can agree upon. Feins spoke saying that, when he was at the appeal, he felt that court said that the building permit process was the place for driveways to be dealt with a n d it is not up to the Planning Board. Feins added that he feels there is information, including that on the driveway permit, that tells people how a driveway should be designed and that should be enough. Feins indicated that he has never planned to build the driveway and he is reluctant to place limitations on the property at this point.

O’Connell questioned whether there are driveway regulations other than those in the building permit that Feins referenced. The LUC stated that, yes; there are requirements in the Sutton Subdivision Regulations.

Wells then said he thought that there was nothing covering the driveway beyond the right-of-way. Whitelaw pointed out that Section VII.C.22 applies and read: “Each lot in a proposed subdivision shall be served by a driveway which conforms to the standards specified in these regulations. Location of driveways is intended to p r ov e that there is at least one location for each lot that can meet the requirements, especially for traffic safety, before all opportunity for lot line change is foreclosed by the Board’s approval of the Plat. These driveway regulations apply on both private and public streets.” Whitelaw pointed out that this does cover the entire length of the driveway, not just the section in the right-of-way.

The LUC stated that there are at least two places in the Sutton Subdivision Regulations that deal with driveways: Section

VII.A.12 limits common drives as follows: “No more than two (2) lots of record in a subdivision will be allowed a shared driveway access” and Section VII.D provides a series of standards for driveways, including lengths should be a minimum of 12 feet.

Blakeman spoke, indicating that he has always considered that the Sutton Driveway standards only covered the curb cut and not the interior of the lot. He did point out that there was a case that had an issue with drainage going into the road which is an instance where the Board did make requirements for the subdivision to address the drainage issues on the interior of the lots and provide detailed plans on driveways. Blakeman indicated that it is not unusual for an owner to subdivide without knowing exactly what the house and driveway designs might be. From his point of view it is not always best to dictate too narrowly how a future owner can develop a lot. The Board should be concerned with whether

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there is a building site upon the lot and not get into details at the point of subdivision.

Wells then asked if the Board needs to vote to determine whether they agree with the applicant that certain things like cisterns and driveways are outside of their area of authority or not. Whitelaw told Board members that they should make a determination of whether the Board has the authority to regulate, for example, driveways beyond the curb cut. She told members that a discussion of authority including where it comes from would be a good idea. Wells addressed Blakeman and asked if it was Blakeman’s position that the Board should only look at the drainage in the right-of-way and not the drainage from the entire site which, in this case is all uphill from the road. Blakeman explained that in the instance he referred to, they had to look at all of the drainage from this site and how it could impact the road; so, the impact of drainage throughout a site is considered. Blakeman indicated that he knows that the lots all go uphill from the road on the Feins property; but, he did not know whether they would drain down onto the road. Wells asked Blakeman how they can address it if they do not know whether there could be a drainage issue. Blakeman said that they could review the plan and see whether that provides an answer.

Hawkins spoke, explaining that Feins does accept that there needs to be something to prevent drainage on the road; but reminds the Board that he is not actually building the roads. Whitelaw then suggested that means they could put conditions that require that drainage be addressed in the final design. Wells pointed out that it is may be something like a detention pond that is added to a design in order to prevent water from flooding the road.

Blakeman stated that, in the example he is thinking of, the Board required a detailed plan showing how drainage would be managed at the time of development and that the Board could agree resolves the issue.

Wells pointed out that, in the case of an approval, there would be five years and then someone could apply for further subdivision and the Board could address the issues then. Sundquist spoke from the floor saying that he wishes to discuss that link between the Planning and Select Boards on this sort of issue. Blakeman initiated a brief discussion about procedure. Whitelaw explained that it is up to the Chair. The Chair indicated that she is interested in understanding whether the Building Permit process is robust enough to provide some protections in connection to these issues. The Chair stated she is particularly interested in understanding how the Board might execute their legal duty, especially in terms of fire protection if review and approval is through the Building Permit process rather than with Planning Board approval in the Subdivision process.

Sundquist stepped forward and discussed how the process works. He explained that there is a historical link between the Planning Board and Select Board and the building permit process. Sundquist explained that he had

27 years of experience with the Sutton Planning Board and that Board has, in many instances, placed Conditions on approvals that then get caught in the Building Permit review. He pointed out that the town now has the database and reporting that tracks the conditions as well, improving over the older form of “institutional memory”. So, with current procedures, catching Conditions that have not yet been completed during the Building Permit approval process is not difficult at this point. Sundquist addressed Cory Cochran, the Sutton Fire Chief, asking him if he has historically seen the sort of linkage between the building permit process, planning and Fire Department concerns. Cochran explained that there have been instances where they have required cisterns and that has worked well. Regarding this case, Cochran explained that there might be something to consider in choosing whether to build three cisterns, one for each house or a common cistern with enough capacity for all three houses. Blakeman asked about National Fire Protection Association (NFPA) requirements in terms of distances. Blakeman pointed out it is also in the National Fire Code. Cochran noted that the requirement is for a “significant source of water”. Whitelaw addressed the Applicant and his attorney, asking if they were questioning the Boards authority to require cisterns.

Feins stated that his interpretation of what the Court said leads him to simply request he be allowed “a simple subdivision of land”. Whitelaw read form the Sutton Subdivision Regulations: “Section V.B.20 Fire Protection: An adequate water supply for fire protection shall be available within the subdivision in the form of either fire protection cisterns or fire ponds or within a reasonable distance from the subdivision as determined by the Board after recommendation from the Fire Chief or the Board of Fire Engineers.” Whitelaw reminded Feins that he had requested a waiver from that provision and it was not given that waiver. Blakeman addressed this explaining that, in his experience, the National Fire Code “trumps anything” when you are building a house or creating a subdivision.

He further stated that there are not many towns that he knows of that do not require a water source for houses and that would be within 1,500 feet of the house to be served.

Aimee Ayer, an Abutter, asked to speak. She asked whether the Board ever approved a subdivision where the lot or lots are “unbuildable”. Wells explained that, in this case, because there was an earlier approval for subdivision, it is clear that there are ways to create buildable lots. Wells explained that the approval of a subdivision means that the items needed for a buildable lot- that ability to place houses, septic systems, and wells exist on a subdivided property. Blakeman added that where there are wetlands applicants are required to show that they can get a wetlands permit.

Hawkins said they could concede that the Board could require cisterns. Whitelaw reiterated that they could further discuss cisterns; but, she considers that cisterns are required. The Chair added that the Board is not simply allowing a lot to be split into smaller pieces; it is certifying that the land is “buildable” and a residence could be built on it. The Chair further added that regarding the driveway issue and even if they do not know where the driveway will go, it is important that there is something, somewhere that tells that, for example, a 4,000 foot driveway straight up the mountain will not work for fire equipment to get up the full length to fight a fire. The Chair and O’Connell had a brief discussion about whether that is within the Board’s authority. Wells asked: “what about the driveway requirements to get to the cistern in order to provide water to fight a fire?”

Whitelaw stated that she believes that the Board does have the authority to condition the approval on saying that the Board understands that the Applicant does not intend to show the driveways at this stage; but, if a driveway exceeds a certain number of feet, in order to ensure adequate opportunity for adequate fire protection there needs to be a layby every so many feet and the driveway needs to meet certain standards. Whitelaw added that that Condition regarding driveways would then be addressed at the time of issuing the Building Permit. Whitelaw said that she does understand that attorney Hawkins disagrees with this point. Wells asked if it makes sense to make a driveway condition even more general and then expect that the Select Board and the Fire Department would take this up and they might make the condition for building permit either more or less stringent. Hawkins stated that it is his point that the Planning Board does not have authority to make driveway requirements beyond the right-of-way and the Select Board does not have authority to make driveway requirements beyond the codes regarding fire”. Whitelaw addressed Sundquist stating that her question for the Selectmen is: “is it your understanding that in issuing a building permit you can address the driveway?” Sundquist replied that they had never imposed a requirement on constructing a driveway on private property. They have though diligently looked after the town’s interest within the town’s right-of-way regarding drainage, sight lines, and so forth.

Hawkins stated that he wished to inject “a bit of common sense” explaining that it is not sensible that a person building a very expensive home where the driveway is totally unusable and totally unsafe. Wells offered that he does understand that position; but, the Board has seen people come to them with designs for long straight driveways at 15% grade shared by multiple houses. Wells pointed out that in icy conditions and a fire tanker is trying to come down such a stretch is just not safe. Wells explained that although the plan was submitted from an engineer, the Board had to say “no” and require redesign to include flat spots to improve safety. Wells added one would like to assume common sense but it does happen that it is absent. McCarthy added that she doesn’t feel that the Board can ignore public safety. Feins stated that the current Sutton Driveway Permit, not in the Subdivision Regulations, includes language on the end of the Driveway Permit Application that he would be glad to include in deeds and he read the language on Driveway and Curb Cuts.

The LUC stated she wanted to clarify that The Driveway Regulations are for single house lots and are not the same as the Subdivision Regulations. Wells asked that they also discuss Stonehouse Road at this point. O’Connell stated that she felt that they should get back to the opening question which was on the subject of what items can be agreed upon.

Wells stated that he understood that Feins and his attorney claim there was nothing agreed to from the original hearings. O’Connell then stated that she believes they have now agreed that cisterns and drainage issues can be considered. Hawkins stated that they do agree that the Planning Board has a basis to discuss cisterns and drainage issues. Wells confirmed that the Board does have the right to place limits in connection to drainage. Hawkins stated t h a t is correct “within the limits of the road right-of-way” and then reiterated that they do not accept that the Board has the right to limit beyond the road right-of-way. Blakeman stated that, although the Planning Board does not take up driveways beyond the right-of-way, the Planning Board must consider drainage and its impact on the road.

Final considerations and plans showing how drainage will be managed should be done at the time of the building permit. Wells countered by saying that he understands that the applicant is saying that they cannot give specifics on steepness or driveway design because they do not know exactly where on any lot the driveway will be built; but, that does not change the fact that the town has the right to protect the road from water migrating from the lot to the road. Wells stated that it is clear and we should all be able to agree that once the water from a driveway is in the road, the Planning Board does has authority to address the issue.

The Chair asked the Applicant if it was agreed that they are all talking about a common driveway to serve two lots and then a single driveway off Stonehouse road to serve one house. Feins spoke saying that he believes that is right. Wells noted that there would have to be a deed easement for the shared driveway. Whitelaw asked if there was a plan showing that. The LUC stated that there is a plan which revised the original plan which shows the two-lot common driveway and a single driveway to a third lot. It was agreed that the LUC should retrieve the plan from her office, which she did. Wells explained that the original plan called for three lots off a single common drive and to do that would have required a waiver from Sutton Subdivision Regulations that the Board was not willing to grant. Without a waiver approval, the plan was redrawn to show only two lots off the common driveway. There was some discussion continuing about driveways and the need for deeded easements before the LUC returned with the map which showed the most recent version of the three-lot subdivision and the one under discussion and was originally dated August 14, 2014, and shows that it was revised October 20, 2014 and prepared by Clayton Platt, Surveyor.

Board members examined the map. The Chair pointed out the proposed easement which would serve two lots and described the long walk taken at the time of the site visit to walk that possible driveway. DeFelice pointed out that anyone building on the three lots in question would have to pull a permit. Wells confirmed with Feins that the shared easement would be to allow an easement from lot 3 to permit lot 2 to access and use the common driveway. Lot 1 would have direct access to Stonehouse Road and a single driveway. Continuing to review the maps, Feins offered that the lots are relatively flat as they near Stonehouse Road. The Chair commented that if houses were all located in the lower areas rather than higher with views, there would be no issues about driveways as each house could be served by a relatively short driveway off Stonehouse Road. Blakeman pointed out that he feels it is important that Feins establish a right-of-way to the higher portions of the lots, even if future owners do not use it. Hawkins asked if

there were additional issues in connection with driveways and Blakeman answered that there is also the consideration of wetlands issues that might have a bearing. Blakeman especially noted that lot 2 contains wetlands and asked if Feins has the size.

There was some discussion about the wetlands on lot 2 and whether Zoning Board of Adjustment approval would be needed for the wetland setback which is 75 feet. Blakeman checked the map and stated that it looked tight and so there would need to be measurements to determine whether there was a wetland setback issue.

The Chair asked if the Board would like to take up Stonehouse Road. Feins showed photographs that he took on Stonehouse Road and which show the relative width during winter with some snow. Feins read a letter from Al Jordan who is Martin Feins landscaper who stated that he has no issues passing on Stonehouse Road. He also read a letter from Jordan Land Clearing about semi-tractor trailer chip trucks passing snow plows with ease. Feins also showed a u- tube clip: https://youtu.be/rVUe9YCeuwl.

Feins discussed what he calls “discrepancies” regarding Stonehouse Road which include that he does not believe that

t h e information the Road Agent, Steve Bagley, has about the number of trips/day is correct and questions the source. Blakeman asked the Road Agent to address Feins statements. Bagley said that the information that he has comes from the New Hampshire Department of Transportation (NH DOT). Bagley explained that the actual travel way is about 13 feet wide. Al Jordan stated that it was easy to pass, Bagley explained that the road varies but there are areas that are too “skinny”. The LUC added that, from her work with road mapping and road management data, it is clear that many roads in Sutton vary in width from one place to another.

Wells cited the minutes of 11/24/2014 and the ASHTO information. Feins said that ASHTO does not recommend just widening the whole road. Wells said that he agrees that you don’t just widen the road; however, he favors using laybys as a means of addressing safety.

Hawkins said that – without conceding anything- they would consider exaction based on two additional and eleven lots in total.

DeFelice asked if the Fire Chief could address laybys. The Chief said having more laybys is better. The Chair addressed the laybys and referred to the copy of aerial photo and notations showing locations on Stonehouse Road. Sundquist explained that the aerial showed locations proposed for laybys and snowplow turnouts. Sundquist pointed out that it does show an area that has drainage problems and an increasing ditch issue. Sundquist explained that the aerial view was not included in the record prior to tonight, although it was handed out at a meeting to some of the board members before the decision was made.

Bagley pointed out that there is a good location for a layby near the Stonehouse field. Peter Messer spoke. He thinks that the Board should thank Mr. Fein for reducing the size of the previous subdivision. Martin Feins asked why the Board was trying to stop this when perhaps the Town should already have improved Stonehouse Road if they cared.

Tom Brooks spoke and asked why the Board was wasting their time on this when people can make their own choices.

Wells moved to close the Public Hearing. JM seconded the motion and it was approved unanimously.

There was a discussion about the characteristics of Stonehouse Road, including that it is a narrow scenic road. Blakeman questioned whether there was a real need to upgrade Stonehouse Road for the addition of 2 lots.

Wells asked whether there should be another site walk to specifically address Stonehouse and what the issues are.

The Chair asked whether they really want to do a Site Walk. DeFelice pointed out that from a Town Budget point of view, he would rather see the taxes from a large house built on one of the lots. Whitelaw spoke and explained that the Board really needed to address the road and its condition.

Wells asked DeFelice whether it would make sense to have the owner of this property give a layby on his frontage (about 1200-1500 feet of frontage) and consider that as a beginning and as other people subdivide property on the road, they also be asked to provide laybys.

Whitelaw pointed out that there are no laybys in front of Feins property on the map/document that Sundquist provided. Whitelaw reiterated that the issue at hand is about the road.

Wells move that the Board deem the Road not adequate; McCarthy seconded the motion. It was voted and only Wells and McCarthy voted in favor. The Road was deemed adequate.

Wells moved that they require10, 000 gallon cisterns; DeFelice seconded. The Chair called for and there was a discussion about cistern standards and costs. DeFelice asked what happens if cisterns are placed at the road?

Whitelaw suggested that there should be clear language stating that the Building Permit be conditioned on access to water and read the Subdivision Regulation, Section V.B.20 as follows: “Fire Protection: An adequate water supply for fire protection shall be available within the subdivision in the form of either fire protection cisterns or fire ponds or within a reasonable distance from the subdivision as determined by the Board after recommendation from the Fire Chief or the Board of Fire Engineers.” There was a discussion about having a condition that requires a builder to come back during the building permit process and that builder’s plans meet the requirements of the Regulations as stated in Section V.b.20 and that must be on all plans and deeds. Wells agreed to modify his motion to include Whitelaw’s recommendation. Wells moved; DeFelice seconded and it was unanimously voted that approval be conditioned on meeting the requirements for adequate water supply in compliance with Section V.B.20 of the Sutton Subdivision Regulations and that requirement be shown on plans and deeds.

Wells moved; DeFelice seconded and it was unanimously voted that approval be conditioned on the applicant providing a 50 foot right of way all along the entire frontage of Stonehouse Road.

Wells moved; DeFelice seconded and it was unanimously voted that approval be conditioned on the applicant noting the 50 foot right of way all along Stonehouse Road in deeds and on maps.

Blakeman moved; DeFelice seconded the motion that approval be conditional and that shown upon plan and deed that the Driveway Permit shows that the drainage from the proposed driveway will not negatively affect Stonehouse Road. There was a call for discussion. Feins asked how that would work if tomorrow he applies for a driveway. Wells said this would be resolved at the point of building permit not driveway permit. Wells moved that the motion be changed to reference building permit not driveway permit; DeFelice seconded the motion. The Chair called for additional discussion and there was none. It was unanimously voted that approval be conditional upon drainage not negatively affecting Stonehouse Road and that condition be shown upon plan and deed stating that the Building Permit must show that the drainage from the proposed driveway will not negatively affect Stonehouse Road.

Wells moved; DeFelice seconded and it was unanimously voted that approval be conditioned on the applicant obtaining New London approval for sole access on Stonehouse Road which is also a New London Road.

Wells moved that the application as conditioned be approved; DeFelice seconded the motion. There was a call for discussion. It was noted that town counsel should review any language to be placed in deeds, especially easement language and other language connected to driveways. And there was a unanimous vote that the application as conditioned be approved and before final approval there must be a draft of easement language approved by Town Counsel.

This ended the deliberations and decision on Planning Board Case 2014-06.

Next regular meeting is scheduled to be a work session and will be held on September 8, 2015 at 7:00 PM. There being no further business, it was unanimously agreed that the meeting be adjourned at 9:46 PM.

Respectfully submitted, Laurie Hayward

Land Use Coordinator