TOWN OF SUTTON

Pillsbury Memorial Hall

93 Main Street

Sutton Mills, NH 03221

PLANNING BOARD

 

Approved Meeting Minutes for Tuesday June 14, 2022 at 7:00 p.m.

 

Chair Pogust called the meeting to order at 7:02pm and took roll.

 

ROLL: Glenn Pogust (Chair), Roger Wells (Vice-Chair), Chuck Bolduc, Christine Fletcher, David Hill, Dane Headley

 

ABSENT: Peter Blakeman, Kristin Angeli, Jason Teaster

 

OTHERS PRESENT: Peter Stanley (Land Use Coordinator), Barbara Hoffman, Cheri Parker, Walter Baker, Linda Park, Amy Manzelli, Carol Williams, Bernice Rogers, Daniel Muller, Jacques Belanger, Joann and Rodney Sigua, Gary Fitzgerald, Laura Spector-Morgan (Town Counsel)

 

APPROVAL OF MINUTES: Minutes of May 10, 2022.

It was moved by Christine Fletcher and seconded by Roger Wells to approve the minutes of May 10, 2022 as circulated. The motion was approved unanimously.

 

PB-2022-26 Sigua, Rodney and Jo Ann.

 

Wally Baker was present to discuss the application for construction within the wetlands buffer.

 

Wally said that his clients have received permission by the NH Department of Environmental Services to install stairs so the applicants can get down to the lake. The Sutton Conservation Commission has reviewed the plan and had no comments.  He is still waiting for approval from ZBA at their meeting the following day (June 15) for the patio section. There would be 8 steps from the dock on the embankment up to a granite step near the road. Adam Hurst, the Road Agent said the location of the top step was fine as it is in line with a tree. The stairs will be graduated with the topography of the land. It will be set in stone dust and pea stone. He would like to put loam on the sides to build it up. To the right of the embankment where the stairs are going should also have some loam and seed on it to firm up the area. Wally said they are doing as little as possible to interrupt the area.

 

Peter Stanley said this is the kind of project the conditional use permit is for. The Applicant would like a small patio to go at the bottom end of this stairway, (under 150 sq’) and they will be going to the ZBA for this approval the following evening. Peter said the Planning Board is only considering the access across the buffer; the loam and seeding is up to DES.

 

David Hill asked about the patio and Wally explained the design, although it would not be voted on that evening. They would be coming to the Zoning Board the following evening for discussion on the design of the patio and with the hopes of getting a special exception.

 

It was moved by David Hill and seconded by Roger Wells to open the discussion to public comment. The motion was approved unanimously.

 

No one from the public wished to speak.

 

It was moved David Hill and seconded by Roger Wells to close the public comment. The motion was approved unanimously.

 

It was moved by Roger Wells and seconded by David Hill to approve the application as submitted. The motion was approved unanimously.

 

 

Continuation of the PB-2021-02 Peacock Hill Road LLC Subdivision

 

Mr. Muller was asked to provide any comments the Applicant wished to make. Mr. Muller said with regards to the conditions of approval, he sought clarification:

 

He would like condition #9 of the 6/10/2022 draft to be amended to reflect that only the lots on the northeast side need approved drainage mitigation plans; not all of the lots on the property. Chair Pogust said that Mr. Costello represented he would provide drainage plans for each of the lots prior to issuance of a building permit, and not just those on the northeast side. Mr. Muller agreed that that was promised at the prior hearing and withdrew the request.

 

With respect to Condition #15 in the 6/10/2022 proposed draft regarding the applicant having the responsibility for maintenance of the road until it is conveyed to the town. In what form does the board want to see this? Would it be a note on the plan?

 

Chair Pogust said that this should be some sort of a bond or contractual undertaking to make sure the maintenance for the road and all common facilities continues to get done. As for the conditions subsequent and precedent, he asked if it was difficult to determine which were which. He thought it was clear. Mr. Muller said that he was more concerned with recording the subdivision plan for signatures for recording. They can’t sell the lots until the recording is done. He wants to know what they need to do before they can record the plan.

 

The Town’s attorney Laura Spector-Morgan clarified that conditions 8B, 22, 23, 4 & 5, and 17A in the 6/10/2022 Draft are the conditions precedent necessary to record.

 

Mr. Muller had no further questions. He said they would go along with the rest of the 6/10/2022 proposed conditions of approval and with the 6/10/2022 draft of the Declaration of Covenants.

 

Chair Pogust said nothing had been changed in the draft of the conditions dated 6/10/2022 except for a few typos. Roger Wells noted a few of those and Chair Pogust confirmed that those had been or will be corrected in the final approved version of the Conditions.

 

David Hill said the word “limited” was confusing to him in some places. Roger Wells said it is generally meaning “without limitation.” David said he would find the instance and come back with this question.

 

There were no further comments from the board about the conditions. With respect to the Declaration of Covenants, Roger Wells asked about the recreation area.

 

Article II of the Declaration, Development plan, 2.1 B. regarding open areas and recreational areas. It says that at least 25% must be maintained in perpetuity. Chair Pogust asked if they could change it to “at least 75% top remain unimproved.” Mr. Muller said this was fine so long as they meet the recreational requirement.

 

Chairman Wells said that Article IV Amendments 6.1. refers to a need for the owners of ¾ of the lots to approve any amendment. Because there are 7 lots, it would be easier if it was 6/7 or 5/7.   Mr. Muller said 5/7 would be fine.

 

It was moved by Roger Wells and seconded by Christine Fletcher to open to public comment. The motion was approved unanimously.

 

Attorney Amy Manzelli, on behalf of Danielle and Ira Thomas, was present. She said that the Thomases engaged her through last October and she has recently been re-engaged. She had requested a copy of the files and had some concerns about the application and requested that it be denied. She hasn’t been able to carefully review everything since being re-engaged with the Thomases. But when she requested the records, she did not receive a complete file. Two letters she submitted last year were not part of the record. For at least this reason, she believes that there may other things missing.

 

Attorney Manzelli said she had 18 points to make:

 

Application Deficiencies

  1. Homes and driveways appear to be located inside the protective and sanitary well radius which is generally not permitted.
  2. The applicant wants to cross jurisdictional wetlands but DES has not been consulted.
  3. Delineations of wetlands do not appear to be complete. It doesn’t look like the board can allow the applicant to count wetlands towards open space requirements.
  4. Driveways are planned to be right along the property lines. There may be setbacks that apply to the driveways and so the driveways are not allowed where they are placed.
  5. It is questionable whether the lots meet the minimum buildable area. Some of the lots appear incredibly contorted near the wetlands. Those areas have to be excluded from the building lot area.
  6. The Yield Plan needs to prove that it can get approval from DOT for two curb cuts, and meet subdivision regulations for a traditional subdivision.
  7. Revised yield plan looks nothing like what was provided to the Zoning Board and was approved.
  8. At the March, 2022 public hearing, with revised yield plan, the public was told by the Town Administrator that they could not comment on the yield plan because it was a “moot point.” This was against the legal rights to discuss and uncover questions/concerns about the plan.

 

Legal Issues

  1. Conditions of approval – improper because many constitute the same substantive information per Sutton’s laws. The conditions of approval are actually legal prerequisites the applicant must meet before the application is complete, not after. The Board has the ability to do this, but the vast conditions exceeds this authority.

 

  1. Numerous procedural errors. The application was incomplete several times. She quoted the Sutton Planning Board’s Rules of Procedure: “The Planning Board shall reject all applications not properly complete.” Article V, section D1, The Planning Board shall act to accept or reject the application at the meeting the application is formally submitted. Attorney Manzelli feels that the Planning Board should have rejected the application per Sutton’s own laws.

 

  1. Defective public notice. There is evidence that the Town Administrator had informed the applicant that the meetings would be continued in November and December without notice to the public. Additionally, the Town hired a third party engineer to review the drainage before the wetlands were delineated. Now that there are new wetlands that have been discovered, it seems as though the third party engineer should have to repeat their work considering the new information. Lastly, it was felt that discussion about this case was had outside the board meetings in 2021 and 2022. This is not legal and meetings must be noticed.

 

  1. Unnoticed and outside conversations and other conduct with respect with application violates publics due process rights.

 

  1. Right to know violations. The Town Administrator has improperly offered advice to the board. The board should be the only ones forming opinions. The Town Administrator has been improperly emailing with the applicant advising and offering opinions outside of necessary assistance to complete the application. Emails between the Town Administrator and the Board discussing the application exist. This is improper. It was thought that there were emails between the Town Administrator and Board members, discussing and editing minutes before they were presented to the public.

 

  1. RSA 91-a is failure to maintain public files at Town Hall. Members of the public have tried to access the file and it is not complete. This speaks to serious violations in consideration of this to provide public information.

 

  1. Bias. This issue has been raised multiple times. The Town Administrator has sent multiple emails discrediting abutter complaints. This is improper. Inappropriate comments about abutters have been sent to the board and comments were provided to the Board with opinions despite the facts. Glenn Pogust is unprofessional and argumentative in meetings and in emails. Abutters feel that the board is biased against them and will not listen to their concerns.

 

  1. There may be bias in the third party wetlands scientist who was chosen. It took them 7 months to do their review. The Town Administrator told them not to conduct the review until the Planning Board application clock was ticking. The end of November is not an ideal time to conduct a wetlands review. She feels that this was done to aid the developer.

 

On behalf of the Thomas’s Attorney Manzelli asked that the Planning Board deny the subdivision application.

 

Glenn noted that their Town Administrator is a woman named Elly Phillips. The person Attorney Manzelli was talking about is not the Town Administrator. Attorney Manzelli said that she was referring to someone else. She said it is the Land Use Coordinator. She did not have a name. Glenn said that there were a lot of serious accusations being made about this individual and he thought that she should know who she was talking about before making such accusations.

 

David Hill said he understood the lawyer was not under contract in October and asked if she knew or assumed the application was accepted as complete. She wasn’t sure. David said that it seemed like in her presentation she was suggesting that it had been accepted as complete prior to when it actually was. She said it was accepted as complete, wrongfully. It wasn’t actually complete. Glenn said it was accepted as complete at the February, 2022 meeting after being rejected as incomplete once, if not twice prior to that time.

 

Dane Headley asked Attorney Manzelli if she thought that the Board should deny the application that night per what she had presented that night? Attorney Manzelli said she didn’t think it was the public comments place to engage in a Q&A style where she is the questioner and the board answers. She presents the issues for consideration. She thinks that her review of the file tells her that this is an applicant and application that merits nothing but denial. She thought there was a defensible record for denial that evening.

 

Attorney Manzelli said if the Board is not inclined to deny the application that night, the hearing should be continued, and she would be happy to discuss this further and provide more detail.

 

No one else from the public wished to speak.

 

It was moved by Roger Wells and seconded by David Hill to close the public hearing.

The motion was approved unanimously.

 

Chair Pogust said the conditions of approval require that all proper applications and approvals are met prior to moving forward with construction. Even if the Board were to approve this application with the conditions of approval, no work could go forward without the Applicant first obtaining the proper authorizations. The Town can’t be the judge of whether certain state or federal requirements are met, that is up to the appropriate agency.

 

Chair Pogust said there were a lot of things referred to by Ms. Manzelli that had been addressed in prior hearings. The Board has asked Town Counsel to review their process as reflected in the minutes regarding what they have been preparing and what the public has been saying. Is there any reason or would it be inappropriate if they decide to conditionally approve the application incorporating the conditions of approval dated June 10, 2022 and requiring the declarations as dated June 10, 2022? Town Counsel said there are none, but there was one condition she would like to discuss in a non-public setting. They adjourned to a non-meeting in private at 7:42pm.

 

The public meeting resumed at 7:48pm.

 

Glenn said his recommendation would be they conditionally approve the application that evening with the minimum recommended conditions of approval in the form dated 6/10/2022 that was circulated, subject to the correction a couple of typos and a reference to the conditions precedent that counsel designated. This would include a requirement that the 6-10-2022 version of the Declaration of Covenants be adopted by the Applicant subject to the amendments that were referenced that evening regarding typos.

 

It was moved by Roger Wells and seconded by Dane Headley that the application be approved contingent upon the amended conditions of approval that were discussed and presented that evening and the declaration of covenants that were amended that night both drafts dated 6-10-2022. 

 

Roger said he wanted to mention that items 1-8 raised by Attorney Manzelli have all been reviewed and the vast majority have been discussed in public hearings to some significant degree. He didn’t believe that any of items 9-16 identified in her comments were correct. He believed that due process was done and there was no information passed to him and other board members outside of public hearing. They have both paper and electronic recordkeeping. They kept the applicant’s feet to the fire because the application was incomplete for quite a bit of time until the application was complete. The bias connotation he thinks is unfortunate and he doesn’t believe it to be accurate at all. Their job is to protect the community and any applicant has a right to be treated equally and he believes that they were. Chair Pogust said that if anything Mr. Stanley, who has been criticized, has been adamant and persistent about is in insisting that all the requirements, both in the application process and as part of the approval process, are met to the toughest and strictest standards that the Planning Board could impose.

 

There being no further comments from Board members, Chair Pogust called for a vote on the motion in a roll call format:

 

Christine Fletcher: Yes, David Hill: abstain, Chuck Bolduc: Yes; Roger Wells: Yes; Dane Headley: Yes, Glenn Pogust: Yes. The motion passed in a 5:1 vote.

 

Chair Pogust said the only other thing on the agenda was to discuss the public hearing on the master plan. He thought there was an incredible turnout at the meeting. Feelings among the public ran the gambit. Two things still need to be done: there were some questions raised about the draft of the Master Plan on the website. He thought that a lot of corrections requested by Board members had been made and some had not. He will go through the version again to see what still needed updating. Betsy Forsham of the ZBA had provided some insight and possible changes. Bonnie Hill who is on the Conservation Commission also noticed some things. Chair Pogust said he would consult with Bonnie as well to note her corrections. Hopefully they can adopt the master plan at their July meeting. Roger said he had some recommendations on how to proceed and they hope to get this to the board prior to the July meeting.

 

It was felt that the top priority is dealing with the cluster ordinance, which may or may not encompass a few other things. Chair Pogust said his personal view is that in addition to addressing the Cluster Ordinance, the Board should assess what they could do that could have some effect. He attended a Vital Communities meeting that had some information he would like to share with the Board. He also is aware of a meeting in New London with the college and the hospital and the New London Planning Commission at which the issue of housing was discussed. He spoke with a developer who said the need is there for housing. Perhaps Sutton would be a place to tap into. He said there is a way to create housing that is not similar to having a Marriott sitting at the I-89 exit ramp. He is hopeful that some people can come in to talk to them to help them learn what Sutton may be able to offer that someone may want.

 

Roger said he has ordered 7 copies of “Rural by Design” for the members to read. It is an old book and they are used copies, but he will distribute them, hopefully by July 1st.  He has also found three websites that talk about the State of NH and innovative zoning laws and why they were created. He has two other documents about cluster zoning from two important entities. He thought that information would be really helpful.

 

Roger said if they read the Sutton cluster ordinance, it is not a traditional cluster ordinance. It is a PUD. Multi-families and commercial is allowed and can go anywhere in the town if there are 10 acres and the ZBA says yes. He doesn’t think that is what they want and it isn’t what he considers to be an appropriate cluster development. This type of mixed use is what he envisions as a possibility around the golf course. He and Chair Pogust will be meeting with the golf course people soon to see if this would ever even be a possibility.

 

Dane suggested people go to the NHMA website and read articles and participate in free seminars that have to do with this kind of thing.

 

Dane said the biggest problem with the Master Plan is that people don’t understand what “commercial” is. Roger said there is a way to create drawings to show perspective to show what they are talking about.

 

David said he had a contact who was well-versed and experienced with workforce housing, senior housing and writing grants for this type of thing. Chair Pogust said he is welcome to invite this person to speak with the group. Roger commented that speaking with many people and finding ways to get information on this was good.

 

Peter Stanley said that the economy creates opportunities and limits them. The availability of real estate is, he thought, going to become scarce over the next year.

 

It was moved by Roger Wells and seconded by Dane Headley to adjourn the meeting. The motion was approved unanimously.

 

The meeting adjourned at 8:15pm.

 

Respectfully submitted,

 

 

Kristy Heath, Recording Secretary

Town of Sutton