The Town of Northwood, New Hampshire - Planning Board Minutes 01/14/09

Ms. Roy reads the public notice into the record and opens the public portion for comments. She explains that the public hearing is for the board to hear public comments and feedback, and to answer any questions.

Ms. Roy begins with proposed Amendment #1 relative to amending the wording for the definition of a daycare. She adds that this change makes the language consistent with the state requirements. There are no additional comments from the public.

Ms. Roy addresses Amendment #2 regarding wording changes proposed to the Wetlands Conservation Overlay District section.

Christopher Berry, Berry Surveying and Engineering in Barrington, asks questions relative to the changes proposed. He states that “jurisdictional” might be in conflict regarding wetland scientists.” He explains that the word “jurisdictional” may be in conflict with the licensed soil scientist. He suggests contacting someone at DES to confirm or deny whether licensed soil scientists are able to delineate jurisdictional wetlands.

Ms. Roy opens discussion relative to Amendment #3 regarding wording changes proposed to Section 5.01(C)(8) to add the word “crossings” after the word “driveway.” Mr. Berry asks for clarification to make sure that this is specific to single family residential. He asks how the existing ordinance addresses commercial driveways. Ms. Roy replies that the board will check into this.

Amendment 4 is addressed relative to amend Section 5.01(E). The proposed amendment would change the wetland/waterbody setback from 20’ to 50’. Roy Pender states that this will affect his landscaping as he will not be able to mow his lawn, thus the land will go to waste. Bruce Farr asks whether this is what the proposal states. Ms. Roy replies yes, it does suggest this as the vegetation is to remain natural. Ms. Smith adds that nothing is exempt from zoning ordinances so this would become a blanket over the entire Town of Northwood. Mr. Farr asks that, if this is supported, there will be no maintaining of yards within 50 feet of a watershed, a jurisdictional wetlands, streams, etc. throughout the town. Mr. Roy states that this would be anything that is wet 90 days of the year. Mr. Farr asks if this really is the intent of the planning board and Ms. Roy replies yes.

Mr. Farr asks what has been going on over the last few years that has required this kind of a stringent response. Ms. Roy states that she appreciates this opportunity to explain and states that this is being addressed based on a study done through a grant the town received through the NH Estuaries Project. She states that the town was able to undertake a study with Strafford Regional Planning Commission (SRPC) who looked at the protection that may be necessary for shoreland areas in Northwood. She states that Northwood is in this incredibly interesting location where Northwood is the head of four to five different watersheds. She states that what goes on in Northwood impacts Northwood and also neighboring towns, including our own water supplies and the neighboring community’s water supplies. The recommendation to change the buffer is not only from this work, but is also less than buffer widths of 100 ft. which is the recommended in A Guidebook for NH Municipalities. Mr. Pender asks who will pay for the enforcement of this. Ms. Roy acknowledges the comment.

Mr. Farr asks if the board conducted an economic study on the effect to the tax base. Ms. Roy replies that the board has not. Mr. Farr asks the board to do this and determine the effect on real estate values. Ms. Parmele states that she believes that there would be economic benefits to going back to a natural state this would be a very complicated study

Ms. Roy cautions the board as the board wants to listen to the comments and not be defensive. Ms. Smith cautions that the board members should not be voicing personal opinions that the board has not made a conscious effort to agree with.

Shirley Smith states that in “the narrows” most houses are near streams. She asks if this proposal means that no one will mow the lawns in this entire area. She then notes Bow Lake and Jenness Pond. She asks if trees can be cut or bushes that are overgrown. She states that there will be many special exceptions needed. Ms. Roy explains that currently the setback is 20 feet; this would be extended to 50 feet. Linda Smith adds that this would now include streams. Linda Smith refers to Section E and states that it is only when the wetlands conservation and wetland conservation overlap. She states that currently it is just structures, not vegetation. Ms. Roy agrees.

Shirley Smith asks about the pre-existing nonconforming lots where the lot is 100 feet deep and borders a stream. She asks if this means that she will not be able to build and adds that she is not going to be the only one in this situation. Ms. Roy notes that the board will acknowledge and discuss the comments received for the public.

Dave Copeland notes that there will need to be a large legal budget to uphold this. He asks if this is to be an amendment for all lots, not just new lots. Ms. Smith replies yes. Mr. Roy adds that development ordinances are applicable to all lots.

Mr. Farr thanks the board for their hard work and the job they are doing. He states that the setback of 20 feet is absolutely critical and the state is supportive of this. As far as the planning board to propose this type of change with this magnitude, he states that he would have trouble supporting this and would oppose it. He adds that he would like to see what effect the state changes will have as they are relatively new changes to the shoreland protection act. He would like to see how that goes first. Ms. Roy states that the board has had the same conversation relative to these concerns.

Mr. Berry states that he has written conservation ordinances for a few towns. He states that this change will make it difficult for existing residents to own and operate their own land. This ordinance does not allow for any of the existing uses that are going on to include agriculture uses which are typically excluded from these ordinances. He adds that some items are less of an impact; i.e. organic farming and agriculture. In addition, Mr. Berry states that he does not understand the reasoning of why the non-conforming lots of record within a certain timeframe are the only lots that could obtain a special exception. He explains that there are many lots that were created under the purview of the 20 ft. setback that may not be caught in between these districts that this ordinance does not recognize. He adds that there are lots of record created between 1974 and 2005 and there was an ordinance in place that requires 20’ setbacks.

Linda Smith states that the language being considered is not corresponding to the correct section in the zoning ordinance. She adds that this section refers to the reduced setbacks on undersized lots and the ordinance section numbers have changed. Ms. Smith states that by the special exception process the setback can be reduced. . She adds that there may be a misunderstanding in that the setbacks are being reduced which essentially creates an opposite effect, reducing protection. There was new language added in 2007 and the intent was relative to section C5 rather than C2.

Karen Smith provides two comments for clarification. She states that the 20 ft. and 50 ft. setbacks for lakefront property are addressed by the Comprehensive Shoreland Protection Act (CSPA) not by this proposed ordinance. To answer a previous question, she points out that serious flooding took place in town and that vegetation is critical to prevent erosion at the shores and for flood prevention. She adds that there has been a significant degradation of water quality in the lakes and ponds in Northwood that has occurred over the past 10 years.

Dave Copeland states that the CSPA only comes into plan if someone wants to do something on their property. The proposed ordinance goes to all properties no matter what. He adds that he lives on Jenness Pond and the water quality has not changed as far as phosphates, etc., over the past years. He states that these areas will continue to be utilized and the best way to utilize is to take care of it the best way we can.

Ms. Roy opens discussion regarding adding a new section, “Protected Shoreland Ordinance.”

Shirley Smith refers to the purpose and intent of “B”. She explains that discussions have taken place already talked about how value of homes would be diminished if properties are not maintained. She states that in the area where she lives the area was all open land with a stream back in the 1800’s. She states that because no one has taken care of that stream, the area has grown in and the vegetation has overgrown the area. She adds that foresters tell you sometimes that things have to be done to the land to help maintain and protect certain species. She continues and states that there is something to be said about limiting what people can do to their land. She notes the ice storms and in some cases a property or area can have too many trees.

Ms. Roy reiterates what Karen Smith has said between now and the 1800’s is the development itself: location of roads, roofs, other impervious surfaces. These all prevent infiltration of runoff during a huge rainstorm. It may be argued that additional vegetation in those areas are helpful in reducing that runoff and to help minimize flooding. She states that other conditions have changed as well that the planning board is trying to balance out.

Karen Smith states that natural re-vegetation (no longer mowing) is one alternative method; however, it is not the only alternative for within the 50 ft. setback. She states that there is the option of planting trees and shrubs.

Mr. Berry asks if anyone decides to build on the lakes that they would not only need shoreland protection approval but would also need local permit from the zoning board. Ms. Parmele states that the point is to cover the two areas that are not covered now by the CSPA. She adds that this would apply to the lakes and streams and three of the watersheds. Mr. Farr adds that this totals 90% of the town.

Discussion ensues regarding the process for complying with the state’s regulation for any modification of the lot. Linda Smith states that any relief from a zoning ordinance would require a variance. For a special exception there would need to be criteria written in for the special exception otherwise it would need to be presented to the ZBA. She adds that this would be relative to all lakes and streams identified in town.

Karen Smith states that this ordinance pertains to all the lakes and ponds covered by the state CSPA as well as the streams and lakes within three of the town’s critical watersheds.

She adds that there are two components: prohibited uses and the CSPA 50 ft. vegetated buffer. She explains that the CSPA does not address areas that are already devoid of vegetation. This ordinance is a way to reintroduce vegetation in those areas. She states that this would require that if making an improvement to the property, then the town is now requiring that vegetation be put back. Mr. Berry asks whether, if making an improvement within 250 ft. of the shoreland, permission must be obtained. Ms. Smith states that this is a setback issue, and that according to the CSPA, the permission is from the state. Mr. Berry asks when the town steps in and asks if the code enforcement officer is the person who determines the amount of vegetation that must be placed. He is questioning the implementation of the vegetation. Ms. Smith asks who determines a vegetation zone and Ms. Parmele explains that this issue was discussed and (the committee did not feel that this would be well accepted. She adds that it needs to be done and the property owner can do it the best way they can. She adds that it is very vague but it is obviously a good idea.

Mr. Farr, as a ZBA member, asks about the next phase of the ordinance process. Ms. Roy explains that the board will discuss and either motion to approve and send to the voters, adjust language and repost for another meeting then vote and send to voters, or just remove entirely.

Mr. Farr continues to state that to have a special exception, specific criteria have to be laid out in ordinances and it is not clear at this point. He urges the board that if the intent is to have a special exception to make it very clear for the ZBA. He adds that it is onerous to say that someone can not use their property. He refers to a ZBA court case, “Bocia”, and states that it is not clear and he cautions the board in thinking through the mechanics.

Mr. Farr continues his comments from the point of view as a resident and farmer. He states that there are many open space fanatics in town and he has been teaching agriculture science for 30 years. He states that the proposal would require him to keep 250 ft. back from all of these streams or sign up for the government programs. He continues and states that there is no harm and no good doing that. The owner could abandon the area and questions whether this would result in a better water quality. He adds that the proposal is well intentioned; however, it won’t achieve the goal. He states that it is onerous to go through the government regulations when it is not necessary. This is relative to amendment 4.

Ms. Roy asks if Mr. Farr could provide a recommendation given his background as to how section 4 could be re-worded. Mr. Farr states that he would respectfully re-word this section by removing it as the state needs to enforce the CSPA. He feels that this is the wrong place and time for this. There are legal costs involved and staff costs. He adds that there are operations that are in alignment with state’s agricultural best management practices.

Mr. Copeland suggests that the board meet with the ZBA or the building department prior to establishing the ordinances. He adds that a landscaping project does not require a permit; there is no process right now. Mr. Copeland states that the CSPA is controlled by the state. He states that the state will enforce it and pay for it especially if it is necessary to involve attorneys.

Ms. Roy notes that there was a time when the building department was attending the planning board meetings and she is not sure why that stopped. She adds that meetings are always open to the public and there are notices with the information. Ms. Roy notes that the process has been ongoing since August. Ms. Planchet notes that the proposals were provided to the building department and comments were received from the building inspector.

Linda Smith asks about a map that has been distributed. Ms. Planchet notes that the map was not posted; it is background information from the study process with affected areas outlined. Ms. Parmele states that SRPC has requested to update the map since the recommendations have changed.

She adds that this has not yet occurred. Ms. Smith asks what guideline would the code enforcement department have when they would need to go out for applications. She asks if this map would be the guidance. Ms. Roy notes that comment and states that the board will discuss.

Mr. Berry asks what this map is and what it defines. He asks if it could be posted on the website. Ms. Roy explains that the map is in reference to the two grants that the town received and a draft ordinance was developed along with the map.

Mr. Pender states that he has been enforcing codes as an employee for the state for 16 plus years and he would not know where to begin to enforce this. He states that with this ordinance he would not be able to have heating oil or propane in his house or plow snow in his driveway. Ms. Roy states that this excludes residential use.

With no further comments, Ms. Roy closes the public hearing and thanks the public for coming and for the input.

Ms. Roy calls for a recess at 8:30. Session resumes at 8:38 p.m.

Amendment 1:
Ms. Roy notes that the point of the change is clear. She states that she does not feel that the comments from town counsel substantively change what is proposed. Discussion ensues regarding the proposed wording and the board agrees to not accept the proposed changes from town counsel. Nikki Roy makes a motion, second by Herb Johnson, to recommend Amendment 1 to the voters in March. Motion passes unanimously; 4/0. Ms. Roy states that this is to be recommended as originally posted.

Amendment 2:
Mr. Curley states that the comments from the public regarding “jurisdictional” are well taken. Ms. Roy requests Karen Smith, as member of subcommittee to come to the table. Karen Smith states that she did obtain some feedback from NHDES and the timing was after the posting date. She recalls a comment relative to the wording of the licensed soil scientist. Ken Curley makes a motion, second by Herb Johnson, to remove “licensed soil scientist or” from the proposed wording of Amendment 2. Motion passes unanimously; 4/0.

Herb Johnson makes a motion, second by Ken Curley, to recommend Amendment 2 be noticed for a second public hearing, as amended. Motion passes unanimously; 4/0.

Amendment 3:
Mr. Johnson states that he would like to hold off on this amendment until more information is available on the effects to commercial driveways. Ms. Roy states that permitted uses are residential structures. Ms. Planchet states that if the use is not single family residential it would not be in site plan applications. Linda Smith states that this was amended as a residential driveway would require a special exception or a variance as it was not noted. Ms. Smith adds that it was done to allow a permitted use to avoid the need for variances for a culvert.

Discussion ensues regarding the affect to multi-family and duplexes as residential structures. The board agrees to amend the wording to add two family and single family to the proposal.

Ken Curley makes a motion, second by Herb Johnson, to amend the wording of Amendment 3 to add the words “or two-family” after the words “single-family”. Motion passes unanimously; 4/0.

Nikki Roy makes a motion, second by Ken Curley, to recommend Amendment 3 be noticed for a second public hearing, as amended. Motion passes unanimously; 4/0.

Amendment 4:
Herb Johnson states that based on what was received form the public he suggests that the board not present this and leave this as 20 feet. He feels that the state should address this and see how the regulations set in first before the town adds any additional burden. Ms. Roy states that the subcommittee has had extensive discussions on this with the hopes and expectations that if the ordinance was introduced at the same time as the CSPA it would be easier for the public because they are already getting some changes. Mr. Johnson states that he wants to see the lake protected but feels that this is just too much for the public at once.

Mr. Curley comments on the public input and states that what occurred this evening showed a definite deficiency in the process. He would prefer to see some more research. He adds that the town does not have the manpower for this and it should be addressed by the code enforcement officer and the public was concerned about the implementation. He suggests waiting on amendment 4 and work on creating an effective process with the building/code enforcement department.

Ms. Roy suggests removing the sentence “Vegetation within this buffer area shall remain in its natural state.” She adds that by adding a level of protection that does not exist now it would not be changing the conditions that dramatically.

Karen Smith asks how prime wetlands are enforced now. Linda Smith states that she does not believe there is any enforcement at this time. Ms. Roy explains that the board does review these issues when applications are presented to the board and would enforce the issues at that time. Ms. Smith states that she would not recommend putting this amendment in since it will not be enforced anyway. Mr. Johnson agrees and suggests that the entire amendment be deleted and the board can readdress the issue next year.

Ms. Smith adds that the board has not addressed the building setbacks. She references accessory structures under non conforming lot size; anything that would require a building permits. This would make it very difficult for accessory structures. Ms. Parmele states this area needs a lot of work; it needs to be very clear.

Linda Smith adds that there has been a lot of time, work, and effort put into this amendment. She states that the board could fine tune the information and in the end this will add credibility to the planning board when the information is finished. Mr. Johnson agrees. Ms. Roy states that historically the board has held discussions regarding the education of the material and how to get it to the public.

Ken Curley makes a motion, second by herb Johnson, to table Amendment 4. Motion passes unanimously; 4/0.

Amendment 5
A discussion is held regarding comments from town counsel. Ms. Roy notes that there is an area noting the legislative history and feels that it is not necessary. Ms. Planchet agrees with counsel’s suggestions. Ms. Parmele feels that the information is beneficial and should be left in.

Discussion ensues regarding establishing a process to follow as noted by the ZBA chairman. Linda Smith asks about the wording “modification” and asks what that entails.

Mr. Curley states that he is in favor of tabling amendment 5. Ms. Parmele feels that the proposal is close enough to make it work. Mr. Johnson feels that it should be tabled. He adds that he understands the intent and he is concerned; however, right now it is too restrictive. He adds that the CSPA will also have some impact and he would prefer to postpone this amendment for another year. Mr. Curley expresses concern with presenting it to the voters and setting up a precedent. He adds that this could be a big motivating item for next year. Ms. Roy agrees.

Ms. Roy states that the board could amend the agricultural wording in section C4. She adds that there are some soft areas. Additional discussion is held regarding an example for site plans, which would be snow storage for commercial businesses. Ms. Roy states that a business, such as the bank, would not be able to store snow on site. Ms. Smith adds that this is due to the wetlands on the site.

Additional discussion is held regarding the depreciation of property values. Karen Smith states that she does not believe there would be any depreciation due to the protection of water quality. Mr. Johnson states that the more vegetation will attract more fowl. Extensive discussion ensues regarding water quality and vegetation.

Mr. Johnson motions to table Amendment 5 for the time being, second by Ken Curley. Motion does not prevail; 2/2. Mr. Curley and Mr. Johnson are in favor; Ms. Parmele and Ms. Roy are against.

Nikki Roy motions to recommend Amendment 5 with the amendment to section C (4) as discussed and be noticed for a second public hearing. Motion does not prevail; 2/2. Ms. Parmele and Ms. Roy are in favor. Mr. Curley and Mr. Johnson are against.

Ms. Roy states that the next public hearing is scheduled for February 2.

Ms. Roy thanks Karen Smith for her hard work and championing this project. She encourages Karen Smith to keep working on the issues. She requests that the rest of the committee be thanked for their hard work.

Herb Johnson makes a motion to adjourn. Nikki Roy seconds and the motion passes unanimously at 10:05.

Respectfully submitted,

Lisa Fellows-Weaver
Board Secretary

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