The Town of Northwood, New Hampshire

PRESENT: Chairman Bruce Farr, Vice-Chairman Roy Pender, Robert Bailey, Tom Lavigne, Nona Holmes, Alternates Jean Lane and Doug Pollock, Board Administrator Linda Smith, and Board Secretary Lisa Fellows-Weaver.

VOTING MEMBERS: Chairman Bruce Farr, Vice-Chairman Roy Pender, Tom Lavigne, Bob Bailey, and Nona Holmes.

MINUTES:
Tom Lavigne makes a motion, second by Roy Pender, to approve the minutes of September 28, 2009, as written. Motion passes unanimously.

REHEARING of Case #09-05(R): Berry Surveying and Engineering, applicant for Mark Lopez, retail space, Rochester Rd. Map 234; Lot 7-2. Applicant is seeking a variance to Section IV, Article (B)(4)(b) to permit the construction of a road (driveway) for a commercial building where minimum setback required is 20’. (Property currently owned by Beth Grimes and Gregory Lalish).

Chris Berry of Berry Surveying and Engineering is present along with his client Mark Lopez. Abutter Chris Meyer is also present.

Ms. Smith explains that Chris Meyer applied for the rehearing and was the party who paid for the rehearing fees. She adds that there was a request to withdraw the board’s decision from September 28 submitted by Mr. Berry on behalf of Mr. Lopez. Mr. Farr asks if the request to withdraw is still active and Mr. Berry replies not at this time.

Mr. Berry states that they appeared before the board in September requesting two variances, general construction (wall) and paving. He states that they have met with the planning department and the building department who felt that a variance was required for paving within the 20’ setback in the easement as it requires it as well as the retaining wall. Mr. Berry states that it is their opinion that Mr. Meyer’s objection to the variance for the retaining wall is it would block Mr. Meyer’s access. Mr. Berry explains that they proposed the retaining wall as a better buffer and Mr. Meyer is opposed to this and would prefer grading.

Mr. Berry states that Mr. Meyer made a motion to re-hear the case and has documented why he feels that the project is not eligible for the variance that was granted. Mr. Berry states that they are okay with removing the retaining wall; however, the variance is still required for the paving within the 20’ setback.

Mr. Farr asks if the aspect for the construction of a retaining wall has been removed and Mr. Berry replies yes.

Mr. Farr asks if Mr. Meyer is opposed to the paving and Mr. Meyer replies no. He states that he has an issue with the retaining wall blocking his access.

Mr. Lavigne states that the board granted two variances. Mr. Farr states that the board granted the variances and then the board granted a request for a rehearing, which at that point the case starts over from the beginning. Ms. Smith states that the variance stays with the property and she adds that until a different motion is made by the board the decision stands. She notes that a rehearing must be done within a specific time frame.

Mr. Lavigne states that the board voted on two aspects of the same variance. Ms. Smith states that the two variances were combined as one project. Mr. Lavigne asks if the issues are still combined. Mr. Farr states that the board should vote on the request to remove the rehearing for the retaining wall. Mr. Pender makes a motion, second by Mr. Lavigne, to grant the request to withdraw the variance for the building of the retaining wall. Motion passes unanimously; 5/0.

Mr. Farr asks for abutter’s comments or affected parties’ comments. With none present, Mr. Berry explains that when the plan was drawn up there was an access easement to two lots. In that easement, a driveway access was allowed to be within the 20’ side setback. He states that they have spoke to Mr. Hickey who has issued an administrative decision pursuant to the fact that this is not a residential driveway. He adds that this pavement would require a variance. He states that this is in the best interest for Mr. Meyer as the access easement requires pavement within the 20’ side setback. Mr. Berry states that they are requesting the board to grant the variance for the pavement within the side setback, which lies within the access easement. He adds that this will allow his client and Mr. Meyer the access over that easement as it was originally intended.

In addition, Mr. Berry explains that the easement was developed by a prior land planner consultant along with NHDOT as part of an access management program. That is the reason why it is there and he adds that the plan was granted by the planning board and the easement created a conflict within the town’s zoning.

Mr. Farr asks if there will be any guardrails and Mr. Berry replies no.

Mr. Meyer refers to his plan he submitted that shows the easement and also references the deed. He adds that this proposal shows that they are trying to make the access work for both parties.

Mr. Berry states that the plan provided by Mr. Meyer is the original subdivision plan that created these two lots. He states the on the existing conditions plan that he provided in the original application, it shows the easement as it exists currently.

Mr. Meyer notes that he is in the process of creating a site plan as well as he thought it would be easier to make sure that the access is compatible and he adds that he felt it was in the best interest for this to occur simultaneously.

Mr. Bailey asks if the access is for one entrance. Mr. Berry explains that the proposal is not for a shared driveway, the access is solely on the parcel of land of Mr. Lopez. Mr. Berry states that Mr. Meyer has an access anywhere along the easement. Mr. Farr states that Mr. Meyer has a right to an access on the easement.

Mr. Berry requests to revise the original request. He explains that the original request was geometrically specific with the retaining wall and paving a specific amount of feet from the boundary line in specific locations. He states that they are working with Mr. Meyer to come to the best development plan. He requests the board grant the variance in such a way to allow the pavement to be up to and including the full setback if this is amenable to Mr. Meyer. This would also allow some flexibility with the design.

Mr. Pender asks what Mr. Meyer is planning for the property. Mr. Meyer explains that he has contracted with an engineering firm to design a site plan for two businesses. Mr. Pender asks if he has a general idea as to how he would like to cross the easement and Mr. Meyer replies that he is working on that at this time and would prefer to not commit to a specific location as the plan has not been finalized. Mr. Farr states that he is protecting the rights of Mr. Meyer but it is difficult without a sense of the plan. Mr. Meyer explains that there will be two potential business sites, one in the front and one in the back portion of the property. He states that there will be two accessing points one in the back and another in the front of the parcel. He adds that he will need more than one access point.

Mr. Lopez states that they are not disputing Mr. Meyer’s right to access the property. In fact, they have had a meeting and Mr. Meyer expressed an interest to maintain the buffer and keep developments apart, which is why they proposed the retaining wall. He adds that with or without the wall this will not change the plans and/or the ability for Mr. Meyer to access the lot. He notes that some locations will require a lot of fill.

Mr. Lavigne asks what the request is. Mr. Berry states that they are the applicant and are asking for the ability to pave up to and including the 20’ side setback up to the lot line. Mr. Lopez adds that Mr. Meyer will need the benefit of the variance. Mr. Farr states that this variance will allow paving to the lot line. Mr. Meyer states that he does not disagree.

Mr. Farr asks if the board would like to hear the testimony again relative to the paving. The board replies that it is not necessary and Mr. Farr asks if the applicant wishes to restate or expand on their prior testimony and Mr. Berry replies no. Mr. Farr asks Mr. Meyer if he has any objections and he replies no.

Mr. Pender makes a motion, to grant the variance allowing the pavement of the driveway to be up to the lot line as indicated on the Orvis and Drew subdivision plan dated 9-27-01, signed by Planning Board Chairman Scott P. Martin. Mr. Bailey seconds. Mr. Farr asks Mr. Hickey if there are any concerns with the paving proposal as described. Mr. Hickey replies no. Motion passes unanimously; 5/0.

Mr. Farr thanks the applicant and abutter for working out the issues.

Case #09-07: Thomas Varney, 188 First NH Turnpike. Map 231; Lot 35. Applicant is seeking a Special Exception for Section VI, Article 4(b) as required in Section VI, Article 5(b) and a Special Exception for VI, Article 4(a) and 4(b) to permit a structure (well) within the 20 ft. setback of a wetland and for the access drive and utility lines for water/electric between the well and the building for the wetland crossing and in the 20’ setback. (Property currently owned by Elias Ververidis).

Mr. Varney is present along with his client Elias Ververidis.

Ms. Smith explains that the applicant has gone through NHDES for their permits. She states that in her review and discussions with the building department they found that there is no need for relief for the well as originally thought. The public notice was noticed for relief of the well and the updated plan provided shows that the well is not within the 20’ setback. Mr. Farr states that the special exception is for the access drive and the utilities.

Mr. Varney states that the proposal is to add a restaurant to the existing art studio and they need approval for a wetland crossing to install a well. He explains that they need the well to fit on the land in the back and this is the only area to place this well. He adds that they have applied for a wetland permit and have met with the conservation commission. He adds that they need to propose an access road to get to the well. This access road will cross the wetland and will be 53’ long. They will then drill the well and dig a trench back to the road where the building will be and add the water and electric lines. He adds that the access road will remain in case the well should need to be serviced. Mr. Varney states that NHDES has approved the crossing.

Ms. Smith explains that the well will not be in the 20 ft. setback. She refers to Section VI. Article 4a and 4b and notes the similarities of both with one project falling under each section. She states that 4b applies as it is the undertaking of the use, which this is not a permitted use. She states that 4a, the proposal is in line in the sense of the language. Mr. Lavigne states that the special exception is necessary for the water lines going through a wetland, electric lines, and the roadway.

Mr. Bailey asks why they are here when NHDES has approved this. Mr. Farr states that the town must approve this also due to the town’s zoning ordinance.

Mr. Lavigne reads Section VI, Article 4a.
(4) USES ALLOWED BY SPECIAL EXCEPTIONS Special exceptions may be granted by the Board of Adjustment, upon notice and hearing as prescribed in RSA Chapter 676, for the following uses within the Wetlands Conservation Overlay District and its setbacks:

(a) Those uses essential to the productive use of land not within the Wetlands Conservation Overlay District shall be allowed by Special Exception. Those uses include, but are not limited to: the construction of roads, other access ways, utility rights-of-way and easements, including power lines and pipelines, with adequate provisions where called for, for the continued, uninterrupted flow of surface run-off water. The ZBA shall grant a Special Exception, provided the following are met:
[1 > after the applicant meets with the Conservation Commission, findings by the Northwood Conservation Commission regarding the proposal are submitted with the Special Exception application, are reviewed by the ZBA, and are made part of the record of the case; and
[2 > dredging, filling or other alteration shall be designed to minimize adverse impact on the wetland and its setbacks, even if this requires adjustments in design outside of this overlay district; and
[3 > there shall be provisions made to restore the site as nearly as possible to its original grade and condition; and
[4 > a state wetlands permit shall be obtained when required.
[5 > a Special Exception is not required when the use meets the criteria for a permit by notification as defined by the NH Wetlands Bureau Code of Administrative Rules.

Mr. Farr reads the Northwood Conservation Commission minutes, which states that the proposed access road was deemed a minimal impact and would be sufficient to access the well. Mr. Farr notes that the NHDES permit has been obtained. He adds that the plans submitted state that there is a need to access the well in order to make viable use of the property. He asks if the board feels that this is a minimum impact or not and that it is critical to the use of the property, based on the plans provided.

Mr. Bailey asks if there is a well near the house. Mr. Varney replies yes, there is a well between the house and the art studio. He adds that they need a larger well for the restaurant with a more protected area around the house.

Mr. Farr states that he has no objection to the access road as it is critical for the use of the property. He states that there is a septic system, this is on Rte. 4, and there is upland behind this area. He states that he feels that all of the criteria have been met for article 4a.

Mr. Lavigne makes a motion, second by Mr. Pender, that the applicant qualifies for a special exception for Section VI, Article 4a, based on the fact that all five criteria have been met. Mr. Lavigne states that the applicant has completed the criteria or is currently in the process of meeting the criteria. He adds that nothing can be done until all permits have been obtained. Mr. Pender agrees. Motion passes; 5/0.

Mr. Lavigne reads Section VI, Article 4b.
4(b) The undertaking of a use permitted by this Ordinance but not otherwise permitted in the Wetlands Conservation Overlay District shall be allowed provided the following conditions are met:
[1 > after the applicant meets with the Conservation Commission, findings by the Northwood Conservation Commission regarding the proposal are submitted with the Special Exception application, are reviewed by the ZBA, and are made part of the record of the case; and
[2 > dredging, filling or other alteration shall be designed to minimize adverse impact on the wetland and its setbacks, even if this requires adjustments in design outside of this overlay district; and
[3 > there shall be provisions made to restore the site as nearly as possible to its original grade and condition; and
[4 > state wetlands permit shall be obtained when required.

Mr. Farr states that the applicant has met with Northwood Conservation Commission and the notes are on file. Mr. Farr notes that the NHDES permit states that this is a minimal impact. He adds that the access road will remain; however, the road is a service road only and will not be paved. Mr. Farr states that the wetlands permit has been obtained as of September 21, 2009 and expires September 20, 2010.

Mr. Pender makes a motion, second by Mr. Bailey, to grant the special exception for Section VI, Article 4b, based on the fact that all four criteria have been met. Motion passes; 5/0.

Correspondence
All correspondence is reviewed.

Other
Mr. Bailey asks if the board would consider beginning the winter meetings at 6 p.m. After discussion, the zoning board members would prefer to remain at 7:00.

Adjournment
Mr. Pender makes a motion, second by Mr. Bailey, to adjourn at 8:05 p.m. Motion passes unanimously; 5/0.

Respectfully submitted,
Lisa Fellows-Weaver
Zoning Board Secretary

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