DUNBARTON PLANNING BOARD

WEDNESDAY, JULY 7, 2004

TOWN OFFICES – 7:00 PM

The regularly scheduled Workshop Meeting and Public Hearing for the Paul Bruzga Request for Revocation was held at the above time, date and place with Chairman James Marcou presiding. The following members were present:

James Marcou, Chairman

Brian Nordle, Co-Chairman

Alison Vallieres, Secretary

Kenneth Swayze, Admin., Planning and Zoning Department

Michael Poirier

George Holt

Mert Mann, Selectman

David Breault, Alternate

The Chairman verified with the Secretary that the meeting notice had been posted according to State Law in three public places and published in the Concord Monitor for one day. In addition, the public notice was posted on the Dunbarton Web Page.

7:00 P.M. – REQUEST FROM PAUL BRUZGA FOR A REVOCATION OF THE SIMON AUDET FOUR LOT SUBDIVISION WHICH WAS APPROVED ON JUNE 16, 2004 BY THE DUNBARTON PLANNING BOARD AND LOCATED ON TWIST HILL ROAD FOR FAILURE TO COMPLY WITH NH RSA ADMINISTRATIVE RULES AND DUNBARTON SUBDIVISION REGULATIONS.

Paul Bruzga appeared before the Board to present his case for revocation of the Audet Subdivision. He presented a letter to the Board stating his reasons. (attached)

Basically, his reasons were two fold as follows:

1. The Subdivision Plan fails to include on the northerly section the “lane or road”, a so called right of way across the lot which belongs to the Wheeler Family Trust.

2. NH RSA 310-A:58, VI; requires Land Surveyors who hold a license to practice as a Land Surveyor to conform to rules relative to ethical and professional standards established by the NH Board of Land Surveyors. It is unlawful to not show a road or ROW on the Subdivision Plan.

Simon Audet and his Attorney, Tom Cooper, appeared before the Board also.

James Marcou asked if Mr. Bruzga would be satisfied if the Planning Board required that the right of way was shown on the plan.

Mr. Bruzga stated this would satisfy his concerns.

James Marcou stated that the Planning Board had stated at its last meeting that if the width of the right of way were 50 feet, it would have to be treated as a potential development road and not just a simple right-of-way.

Mr. Bruzga stated there is no specific width of the ROW listed in the deeds.

Simon Audet stated that the ROW is described at the Northwest end of the lot. It gives the right to pass with a team and the right to fence, etc.

Paul Bruzga stated the legal basis for his seeking Revocation of the Audet Approval is as follows:

1. The plan does not comply with your Subdivision Regulations. You must show the Right of Way on the plans.

2. Surveying Rules require that the Right of Way must be on the plan.

Tom Cooper, Attorney representing Simon Audet, stated they would be willing to put the fair and proper easement on the plan. He stated that he had looked at the plan and it is not in violation. The plan states the easement is to be noted and this is about as clear as it can be. The deed states for the express purpose of passing and repassing with a lane sufficient for a “team” to pass. That is what the deed said in 1873. The deed that Mr. Bruzga has was only unique to the people not their heirs and assigns. It may not even exist now; however, we will put the easement on the plan.

J. Marcou reaffirmed with Paul Bruzga that if the Right of Way were shown on the plan as it is described , you would accept that instead of a Revocation? If the lots don’t have realistic frontage and acreage because of this, it is the Planning Board’s responsibility.

Paul Bruzga agreed to this.

Abutters were read as follows and it was noted that all were notified by certified mail:

Wheeler Family Trust – Present. Represented by Paul Bruzga

JWF Real Estate and Development – Not Present

Roger and Marjolane Bergeron – Present. Stated he was trying to find out what is happening because he only has an acre lot because we are grandfathered. We are next to where a Right of Way is, although it may be another right-of-way.

The Board pointed out that the ROW is not placed on the plan.

Bergeron stated you don’t know where it is located. That is the only worry I have. Where it is going to be? I only have an acre of land. This is a technical defect in the plan. I am worried about losing land.

James and Sharyn Goddard – Not Present

Lewis/.Penny Fortin – Not Present

Jeffrey Rousseau and Kathy Heon – Not Present

Mark/Siobhan Dougherty – Not Present

Paul Bruzga – Present

J. E. Belanger Surveying – Present

MOTION:

Kenneth Swayze made a motion that the Dunbarton Planning Board not Revoke the approved Simon Audet Subdivision and hold the signing of the Final Plan until such time as the Plan is in compliance with the minutes of this evening’s meeting and the spirit of the minutes from all prior meeings. The Plan will be complete before it is signed. The motion was seconded by Brian Nordle. The motion passed unanimously.

PUBLIC HEARING AND REHEARING FOR PROPOSED REVISIONS TO THE LAND SUBDIVISION CONTROL REGULATIONS

The Chairman verified with the Secretary that the Public Notice for the Proposed Revisions to the Land Subdivision Control Regulations had been posted in accordance with State Law in three public places throughout the Town and published in the Concord Monitor for one day. In addition, the Public Notice had appeared on the Dunbarton Web Page.

PUBLIC HEARING:

1. Administrative Requirements and Checklist for processing Land Subdivision applications.

Kenneth Swayze presented a copy of the Formal Application Procedure along with a Checklist to be followed in reviewing applications prior to accepting, etc. (attached)

K. Swayze stated that if an application has not met all the required criteria on this, it should not appear on the Planning Board Agenda, etc.

George Holt asked that a Signature Block including the name, address, etc. be also placed on the Plan.

David Breault asked if all Planning Board members could receive a hard copy of the applications to be included with the agenda of the meeting. The Board noted that the applications were always available for review at the Town Office 14 days prior to the meeting.

Public Comments:

Nick Holmes stated that the Planning Board should require the applicants to supply sufficient copies of the application for all Board members. This should not be an expense to the Town.

J. Marcou stated that the Board had considered requiring the applicant to supply sufficient 11” x 17” copies of the plan, but they were very difficult to read, etc.

2. Policy and Procedure for Signing and Filing of Approvals for Subdivisions and Site Plans

Kenneth Swayze presented a draft Policy for the Signing and Filing of Approvals for Subdivisions to the Board for review, (attached) which has been in use by the Planning Department since July 2003.

The Board reviewed the policy and was in agreement.

MOTION:

Michael Poirier made a motion that the Dunbarton Planning Board accept the Administrative Requirements and Checklist and Policy and Procedure for Signing and Filing of Approvals for Subdivisions as presented this evening. The motion was seconded. The motion passed unanimously.

REHEARING:

James Marcou opened the Rehearing by stating that the Dunbarton Planning Board had received two petitions regarding the revisions to the Subdivision Regulations which were passed on April 21, 2004. He also stated that the two petitions had been consolidated into one.

The petitions basically were stating that the public had not been properly notified because the public notice did not appear on the Dunbarton Web Page and that there was insufficient verbage within the public notice to explain what the proposed revisions were. In addition, the petitions stated that the material which was left at the Town Office was not in enough detail.

James Marcou stated that at the Public Hearing on April 21, 2004, there had been sufficient discussion and debate on these revisions prior to the Board voting. He stated that the Petitioners felt because this did not appear on the Web Site, it impaired people from being at that meeting to participate in the discussion.

J. Marcou stated he would like to get everyone’s input on any new information pertaining to the revisions.

James Marcou stated that at the April 21, 2004 Planning Board Meeting, a letter from Margaret Watkins was evidently submitted to the Board and was put on the Planning Board table with no notice to the Board that this letter was submitted. A pile of mail was put on top of the letter, and it was not until J. Marcou went through the mail at home after the meeting, that he found the letter. He stated that members of the audience possibly were aware of the existence of the letter, but no mention was made to the Board that the letter was there. He stated that he hoped you all know that I would not keep that out of the public record. If there was anyone present who was aware of the letter, they should have told us.

Margaret Watkins stated that she was sorry that there was a mistake with the administrative staff who said they would make sure the Planning Board would read the letter. She stated she continues to feel that we should not make changes to the Subdivision Regulations until after the Master Plan is completed. She stated there will be issues with Cluster Housing and many other issues.

She stated that by allowing for dead end roads by right and the limitations of the number of homes on dead end roads is not in the best interest of the open space and rural character of Dunbarton. She stated she had done a lot of research on dead end roads and culdesacs. I understand that you are doing it on the basis of number of lots. What is the purpose of the culdesac? The houses are more closer together. I have some questions about what this actually means. Is the culdesac included within the length of the road?

The Board explained that the minimum length of the road is measured in a straight line to the culdesac and does not include the culdesac.

The Board also stated that the intention of the Selectmen when they voted to do away with “stub roads” was to try to eliminate maintenance problems especially relating to snowplowing. The Selectmen’s regulation stated that roads must be at least 600 feet long. The Planning Board’s regulations at that time stated that roads must be no more than 600 feet long. Therefore, there was conflict between the two regulations and this is the reason the regulations needed to be changed.

K. Swayze stated that the Planning Board was not in agreement with the Selectmen at the time they passed the minimum road length of 600 feet and had informed the Selectmen at the time. (This was basically because it denied subdivision opportunities to small subdivisions of 2, 3 or 4 lots, etc. )

The Board stated that the limit as to the number of houses on a dead end road was taken from New Hampshire Central Regional Planning Commission’s suggestions of no more than 20 – 25 houses. This is the reason for the 25 limit. George Holt was the member who first proposed the 25 house limit. In addition, Dunbarton has a minimum of five acres with 300 feet of frontage on each lot. If you consider the frontage, the length of road has to be considerably longer than other Towns where minimum lot size and frontage is much less. It would be difficult to “pin down” a number for the length of road because of land features, etc. This is the reason the Board agreed to go forward with a limit of number of houses on a dead end road.

K. Swayze stated there are a number of already existing dead end roads throughout Dunbarton. He also stated that he had done considerable research on dead end roads in other Towns. Hooksett allows 40 houses on a 1500 foot dead end road. Because of Dunbarton’s large lots and frontage, it becomes difficult to have a restriction on length of roads, etc. Stated that people in this Town want large lots with 5-7 acres with 300-500 feet of frontage or more. In order to have the large rural lots with frontage, etc., we need longer roads.

Margaret Watkins stated that she did not like “dead end” roads and would like to see them prohibited or a strong statement within the regulations that discourage “dead end” roads.

J. Marcou also stated that the Planning Board requires full 50 foot right of way clearing of trees and brush. The Town Engineer requires this on new subdivision roads for safety reasons.

M. Watkins stated the Board is creating a potential liability with stub roads. Would recommend that both the Police Chief and the Fire Chief sign off on dead end roads. She stated the Police Chief did not sign off on a recently approved subdivision.

Alison Vallieres pointed out that one of the proposed changes in the regulations is Section V., C. (Design of Streets and Roads) – Planning Board proposes that plans for all new street and roadway systems and for new subdivisions on existing single-access roadways will be submitted to the Town Engineer, Fire Department and Police Department. Both Items 3 and 13 require submittal to the Police and Fire Departments.

M. Watkins stated that this does not say they have to “sign off” on the plans.

M. Watkins stated that the paragraph on page 2 of the proposed regulations regarding Existing Single-access Road – General was confusing.

K. Swayze explained the reasons for this paragraph and noted that he had help from Town Counsel in writing this. This paragraph applies to existing dead end roads, some of which are only two rods wide. A two rod road could not have a 50 foot right of way. There may be other “negative” features on existing roads, including scenic road status, excessive grades, etc., all of which must be evaluated on a case-by-case basis.

M. Watkins stated that Ken’s explanation did not explain it well enough.

Mert Mann stated that in other words, Margaret says she does not trust the Planning Board to make good decisions.

Mike Shearin – Stated that no one is disputing the Planning Board. There needs to be some “teeth” in these regulations so the people can understand. He stated he did not feel it is right to ask Margaret if she trusts the Planning Board.

M. Watkins questioned the wording on 6. which states “Planning Board proposes that all driveway locations be shown on the plan with backup evidence that deeds for shared driveways have good language to avoid problems”. She stated she did not feel that “good language” was a sufficient explanation, etc. Can we specify what language we are talking about.

At this point, Alison Vallieres stated that Item 6. on the Public Notice was only a synopsis of what the Planning Board was proposing regarding shared driveways. It was not the complete wording of the proposed changes, only a summary for the Public Notice to inform the public as to what the Planning Board was proposing. If we were to publish the entire text of the proposed changes in the regulations, it would have cost the Town $4,000 instead of the $400. The entire text of the revisions was at the Town Office for review. The added section is written on page 3 of the proposed changes under Section V., I (Building lot access, driveways).

M. Watkins stated that she felt that Section V. N. (Recreational Uses) should be stronger in requiring landowners to set aside land for recreational use.

At this point, Ken Swayze stated that there have been test cases wherein the Courts have stated that Town’s cannot “demand” land from developers. It is considered extortion. The Planning Board can suggest but not demand lands. We cannot have a “land taking”. The Town of Atkinson was challenged in court and lost.

Gregg Reed – Asked how many signatures were on the petitions? He stated the State requires only 1,000 feet of road. Lives on Stark Lane. The Planning Board recently approved a number of lots on a 6,000 foot road. We are talking about Scenic Roads in Town. Have been involved because I live on Stark Lane.

The Board stated they did not know how many signatures were on the petition. They noted the nature of the location is different than what is up and down Mansion Road and Stark Lane.

Gregg Reed stated in some parts in Town, there is no rural character. It looks like South Beach, Miami. That is why people sign petitions.

J. Marcou stated we have debated this for a long time. These documents were out there for months. We realize we will have a new Master Plan shortly.

Donna Dunn – Stated she would like to read a statement from Ellie Stein who could not be present at the meeting.

“I firmly believe that the Town should maintain road length limits for dead end roads, no longer than 1000 feet, which is what the state recommends. When we allow roads the length of what was approved off Mansion Road, nearly a mile, the effect is a scouring out of our interior forestland. It enables someone with a small amount of road frontage to eat up vast portions of interior land, and I believe this is the quickest way to lose the rural character and wildlife habitat that makes Dunbarton so special”. Donna Dunn stated that she agreed with Ellie Stein also.

At this point in the meeting, James Marcou stated that he wanted to note that Police Chief Nelson had requested that his name be withdrawn from the petition. Donna Dunn stated she would.

Ron Slocum – Asked about the cutting of all the trees along the 50 foot right of way.

J. Marcou stated this is a requirement of the Town Engineer, Don Mayo, and it is often much wider to do cuts and fill.

Ron Slocum – Stated you keep saying people have the inherent right to subdivide their land and the Board has prohibited a subdivision which has only a 33 foot swath of road. Stated that rights should be the same across the board.

Jean Whittington – Stated that it seems to be an issue with language on the Existing Single-Access Road section. Would encourage the Board that to whatever extent you can articulate whatever values the Town wants. If there is an issue of disagreement now, what about the next generation of the Planning Board.

Margaret Watkins stated that she felt that part of the rural character of the Town is trees overhanging the roads, etc.

J. Marcou stated the Planning Board has got to think of public safety and access to all people’s homes.

There being no further public discussion, the public hearing was closed at 9:00 p.m.

MOTION:

James Marcou made a motion that the Dunbarton Planning Board reaffirm their vote of April 21, 2004 for Items 3 – 13 on the Public Notice. The motion was seconded by Michael Poirier.

Discussion:

J. Marcou noted that the Board has had a lengthy debate on these issues. We have gone outside the Board and talked to other rural towns, lawyers, the Municipal Association, etc. We have debated these items and know full well that we can debate these issues at a later time. These can be changed at a later date. We have no problem with working on these issues tonight.

David Breault asked why the regulations cannot restrict the length of dead end roads to 1,000 feet. The Board continued the discussion about the whys and why not, etc.

George Holt stated that he was concerned about the road length issues which have been brought up. The current regulations says roads cannot be longer than 600 feet and the Selectmen’s policy says roads cannot be shorter than 600 feet. This is our place to fix this. Was the basis that DOT recommend having 25 houses on a dead end road?

The Board continued the discussion on the reasoning behind having 25 houses and it was established that NH Central Regional Planning Commission had recommended 20 –25 homes on a dead end road, etc.

Alison Vallieres stated that she needed a more concrete basis to change the number of houses from what the Board had originally agreed to. She stated she had taken 500 feet of frontage, to accommodate irregular land, etc., times the number of lots allowed (25) and had come up with 12,500 feet. She divided that in two to accommodate both sides of the road for frontage and the road is 6,250 feet. To say that you can only have a road 1,000 feet long does not make sense to her. The Board needs the flexibility to be able to accommodate the Town’s regulations.

George Holt stated that originally he had recommended the 25 figure but decided to change to the 20 figure.

MOTION:

George Holt made a motion that the above motion be amended to reduce the number of lots on a dead end road from 25 to 20. There was no second to the motion. Therefore the motion died on the floor.

The original motion passed by a majority vote as follows:

Marcou – Yes

Nordle – Yes

Swayze – Yes

Vallieres – Yes

Poirier – Yes

Mann – Yes

Holt – No

Other Discussion:

George Holt made a statement that he felt the Planning Board had an obligation to the people present here tonight and the Board did not address their concerns. The Board did not give them anything they wanted, and they come with good intentions.

At this point in the meeting, members of the Planning Board noted that George always seemed to vote against “politically sensitive” issues. He votes against subdivisions and votes against any form of development. The Board felt George was not being fair and objective in his deliberations and voting practice. This is not the way Planning Board decisions should be made – they should be based on fair treatment to all parties.

Michael Poirier stated that if there was a way to properly and legally deny certain subdivisions, he would vote against them, but most of the time the applicants want and try to do the right thing. If the subdivisions meet the regulations, the zoning, and the requests of the Board, it is not responsible or proper to deny them.

The Chair and Co-Chair noted that George’s record was becoming problematic in having certain agendas.

There being no further discussion, the meeting adjourned at 9:30 p.m.

Respectfully submitted,

Alison Vallieres, Secretary