The Town of Northwood, New Hampshire

PRESENT: Chairman Bruce Farr, Vice-Chairman Roy Pender, Thomas Lavigne, Nona Holmes, Alternate Jean Lane Assistant, Building Inspector David Copeland, and Board Secretary Lisa Fellows-Weaver.

ABSENT: Robert Bailey
A discussion is held regarding voting members for the case scheduled for this evening. Mr. Farr states that it is his understanding that Ms. Lane would be stepping down from the case tonight as well as any other cases for Jon Hendrick, 08-06 and 08-07. He adds that the decision is based on a conversation that he has had with Ms. Lane; however, he asks Ms. Lane for her decision for the case tonight. Ms. Lane states that she would like to continue to sit on the board for this case; however, she does not want to cause any problems.

Attorney Laura Spector of Michell and Bates is present representing the Northwood Board of Selectmen (BOS). She states that the BOS objects with Ms. Lane sitting on the board particularly as she has agreed to recuse herself from the other two Hendrick cases. She explains that it is her understanding that Ms. Lane and Mr. Hendrick are good friends a well as Ms. Lane has expressed to the Troys, abutters of Mr. Hendrick, the difficulties of making a decision given the personal relationship. Atty. Spector states that given that relationship the selectmen are requesting that Ms. Lane recuse herself from all cases involving Jon Hendrick.

Mr. Farr requests Ms. Lane recuse herself due to the relationship and the fact that a conflict of interest could be perceived.

Ms. Lane agrees to step aside and adds that she does not recall anything said to the Troys regarding her relationship and she complements the Troys on their letter requesting the rehearing. Mr. Farr asks for board comments and the board members do not disagree with Mr. Farr’s request.

Atty. Tanguay is present from McNeill, Taylor, and Gallo representing Jon Hendrick along with his brother Jeff Hendrick who asks Mr. Farr to confirm that he asked Ms. Lane to step aside for all cases. Mr. Farr replies yes and adds that the decision is based on a conversation that he had with Ms. Lane. Mr. Farr adds that he has asked Joseph Knox to step in, which was based on Atty. Tanguay’s request Tuesday, May 27 for a full 5 member board to be present for June 2. Mr. Farr states that the selectmen, being aware of the possibility of there not being a full 5 member board agreed, to appoint Mr. Knox. Atty. Tanguay states that he was not aware that Ms. Lane would be stepping down and asks here if she had previously stated that she would not be sitting on the other two Hendrick cases. Ms. Lane replies that based on her conversation with Bruce Farr, she has stated that if there was a problem she would recuse herself. Mr. Farr notes that this is not a decision that is up to the applicant. Ms. Lane adds that she would like to continue but does not want to cause any friction and would step down. Atty. Tanguay asks for the reasons why Ms. Lane is recusing and Mr. Farr explains that Ms. Lane has noted emotional ties and a friendship with the applicant. He further explains that it is important that the sitting board members be able to make a neutral decision and not be affected by a relationship with an applicant or and abutter; therefore, it is better to step aside. Atty. Tanguay asks if there is any financial interest.

Jeff Hendrick states that he feels it is Ms. Lane perceptions that there is no problem and the only reason she is recusing herself is to appease the selectmen.
Ms. Lane states that she has recused herself for all Hendrick cases 08-06, 08-07, and 08-08.

Mr. Farr states that there is currently a 4 member board present and a previous request has been made to have a full member board consisting of 5 members. Mr. Farr states that he met with the selectmen regarding appointing an “ad hoc” member and the selectmen accepted his recommendation for Joe Knox. He explains that Joe Knox has previously been a member of the board and therefore has experience and has accepted the appointment for the Hendrick cases. Mr. Farr notes that Mr. Knox is the town treasurer and asks if there are any difficulties of the parties involved.

Atty. Tanguay notes that he is unable to attend the meeting scheduled for June 2, the continuation of the Hendrick cases.

Mr. Farr calls for a recess at 7:11 p.m. with session resuming at 7:18 p.m.
Atty. Tanguay states that they object to Ms. Lane recusing herself from all Hendrick cases as there is no evidence to what the conflict is and they feel that she could render a decision.

Atty. Tanguay requests to proceed with the case tonight; however, he requests a full 5 member board address the other cases. He adds that in looking at the statute regarding the town treasurer sitting on the board, it does not appear to be an inherent problem; however, at the meeting he would like to inquire as to Mr. Knox’s knowledge of the case.

Ms. Spector states that she does not have any problem with Mr. Knox sitting on the board as the selectmen have appointed him to the board. Mr. Farr adds that the discussion is not relative to Joe Knox but rather to his position as the town treasurer.

VOTING MEMBERS: Bruce Farr, Roy Pender, Tom Lavigne, and Nona Holmes.
Case #08-08: Map 105; Lot 25. Applicant is seeking an appeal to RSA 674:41(II) for lack of frontage, to permit the construction of a single family residence.

Jon Hendrick, and Jeff Hendrick are present along with Atty. Bill Tanguay.

Atty. Tanguay states that the proposal is to build on each of three parcels. He provides a history of the lot and area. He explains that Mr. Hendrick owns this lot, Map 105; Lot 25, which is off of Bow Lake Road as well as Map 208; Lot 3 and Map 202; Lot 4, which are not being addressed this evening. Map 105; Lot 25 has some frontage on Bow Lake Rd.; however, it is not useable frontage. He states that this lot is at the end of Corson Dr. where the road is diverted from the original Corson Dr. plan. Atty. Tanguay states that there has been some activity with the lot with the planning board and there are plans recorded at the registry of deeds.

In addition, Atty. Tanguay provides a timeline of activities. He states that Mr. Hendrick has met with the ZBA for a special exception in December 2007, per section 1.04 (C)(3) of the Northwood Development Ordinances. He reads the ordinance and states that special exceptions were granted for all of the previously noted lots. Atty. Tanguay states that the board has seen all of these lots in the past, has granted the special exceptions saying that the lots may be developed. The matter then went to the planning board in January 2008. In 2004 the matter appeared before the planning board for a boundary line adjustment, which was conditionally approved. Atty. Tanguay reads a note that the planning required to be added to the plan stating that approval of the plan is an approval of the boundary line adjustment only. Prior to issuance of a building permit all lots to use Corson Dr., a private road, as an access will be subject to review by the planning board per RSA 674:41. He states that he believes this is why the matter was addressed by the planning board, January 2008. Atty. Tanguay states that per advice of town counsel, the planning board determined that they did not have any jurisdiction and the alternatives were to meet with the ZBA or create a private roadway meeting private road standards.

The matter was then presented again to the ZBA per RSA 674:41. The relief requested by Mr. Hendrick was granted for all three of the lots and then a rehearing was requested.

RSA 674:41 is read by Atty. Tanguay. He explains that most people look at a road which is used to access lots and if the road is not a town road then it must be a private road. This is not a private road as the road does not meet the criteria of what a private road is. He adds that the planning board was told that this road is not a private road and RSA 674:41(I) does not apply, and therefore, the planning board does not have any jurisdiction. If the road were a private road, the process would be to have input from the planning board, which would have been forwarded to the selectmen who would have the authority to issue a building permit or not issue the permit. Atty. Tanguay states that because this road is not a private road as defined per the statute, the planning board stated that they do not have any jurisdiction and the applicant needs to fit into one of the categories noted in RSA 674:41(I) or appeal to the ZBA under 674:41(II). Atty. Tanguay states that it is hard to state what this roadway is, or driveway, or access way because it is not a private road per RSA 674:41. He states that this is basically the opinion of Atty. Laura Spector and was the opinion followed by and which set the process in motion.

Atty. Tanguay continues and explains that the statute states that there must be frontage on one of the types of roads or the process is to seek relief from the ZBA providing the requirements per the state statue have been met. He adds that the statute states that the ZBA has the power and authority to issue building permits for lots without frontage as per the definition of streets noted in RSA 674:41(I) when it finds the following:
a. the enforcement of RSA 674:41(I) would entail practical difficulties or unnecessary hardship;
b. the circumstances of the case do not require the building or structure to be related to existing or proposed streets;
c. the construction of the structure will not tend to distort the official map or increase the difficulty of carrying out the Master Plan. Atty. Tanguay states that only one of these two conditions must be met, not both.
d. the issuance of the permit or the erection of the building will not cause hardship to future purchasers or undue financial impacts to the municipality. Atty. Tanguay states that there are only 4 criteria that need to be met - not 6.
Atty. Tanguay refers to the request for rehearing filed by the BOS; the request suggests that all 6 criteria must be met. Atty. Tanguay states that the statute uses the word “or” not “and”, so there are only 4 criteria to be satisfied.

Atty. Spector disagrees. She states that there are 6 criteria that must be met. She explains that the “or” refers to can’t to either. Mr. Farr refers to Atty. Callen’s notes who provided his opinion of RSA 674:41 and it is his recollection that there were 6 conditions. Ms. Holmes adds that her impression was that there are 6 criteria that must be met as does Mr. Lavigne and Mr. Pender. Further discussion is held regarding “and/or” being additional criteria. Atty. Tanguay states that the statute states “and” meaning both and “or” meaning one or the other. Atty. Tanguay refers to A Hard Road to Travel, and states that this book also notes the 4 criteria. The board requests that 6 criteria be addressed.

Atty. Tanguay refers to the 1984 Subdivision of Land plan for Davis & Williams. He states that the road is a logging road, an existing woods road, which has been substantially upgraded in the past few years. Also shown on the plan is lot 2, a
119 acre parcel that is also owned by Mr. Hendrick. Atty. Tanguay explains that Mr. Hendrick has arranged a stewardship plan with the State of NH for logging and forestry and land management activities. He adds that in order to get the plan approved he needed to upgrade the road to a standard sufficient to allow vehicles large enough to carry materials in and out. A portion of a grant was received from the State of NH NRCS who engineered the road and the road was put in last year consistent with the grant and necessary engineering. The road is in the same location as the existing woods road; however, is a different road and has been improved with ditches and culverts.

Atty. Tanguay explains the town’s road requirements for a private road. He states that the current road is 14’ wide in some areas with other areas being more or less. There is a gravel surface, ditches, and 0-50 vehicles. There is a base coat of at least 12” of gravel. It is very close in meeting the town’s requirements.

Atty. Tanguay refers to the rehearing request. He explains that only the selectmen can file a request for rehearing, not the planning board or conservation commission; however, they do have the right to provide input but with no standings. He notes that all 6 criteria have been required to be met; however, the request for rehearing only addresses 5. The official map was not addressed and it is his understanding that the town does not have an official map.

Atty. Tanguay refers to the conservation commission letter submitted to the BOS which notes the risk to the town’s future fiscal liability and threat to the vitality of the town’s natural resources. He states that there is no risk as Mr. Hendrick has signed a waiver and the town will not be responsible for the road.

Criteria:
a. the enforcement of RSA 674:41(I) would entail practical difficulties or unnecessary hardship. Atty. Tanguay states that there is an existing road that is close to the minimum requirements of the town. He adds that he believes that the road is an all season road. He provides estimates for paving from the end of Corson Dr. as it exists now. The cost for paving all three parcels is approximately $70,000. The price per sq. yard is $12.50. Atty. Tanguay states that this entails both a practical and hardship problem as there is no reason for a paved road as the access is for only one house on one lot.

Atty. Tanguay refers to the Master Plan and explains that they agree with not upgrading roads or adding new roads. He states that the proposal is to take existing lots of record, which the board has given its authority to develop under the special exception criteria. He adds that they are trying to find a way to use the lots for a single family use and develop so that the lots do not become valueless and do this without unnecessary funds for a paved road or widen four feet when there is no purpose to be gained. Atty. Tanguay states that they do not wanted the road to become a street and if the road becomes a street under RSA 674:41, that will destroy the purpose of the Master Plan and open the door for further subdivisions. He adds that they are not subdividing and are dealing with existing lots of records without spoiling or creating the ability for further development. They believe it is an unnecessary expenditure and satisfies the practical difficulty or unnecessary hardship provisions.
b. the circumstances of the case do not require the building or structure to be related to existing or proposed streets. Atty. Tanguay refers to the March 3 minutes when Atty. Callen stated “Noone would approve a building permit for an emergency shelter or a fire station on a road that was not maintained; it would clearly need to be on a town road. So the issue would only be for residential uses.” Atty. Tanguay explains that the criteria is that it is not related to an existing or proposed street. Atty. Tanguay explains if there is a use which is commercial or a high volume use, ie. school, fire station, emergency shelter, all of these uses would need to be in a close proximity to a major road. In this case these uses would need to be near Bow Lake Road. These are uses that are tied to the streets.

Further discussion is held regarding the use of a house and the traffic that will be generated. Mr. Farr uses the analogy of a hunting camp with walking access only. He states that with a house there needs to be access to a road and the road is accessed often. Atty. Tanguay states that then there would be no need for the statute if it were designed for just camps. He adds that if the interpretation is that any residential structure other than a seasonal camp doesn’t qualify then there is a disagreement as to the meaning of the statute. The statute is saying that there are some uses, which benefits of the street are important; high traffic uses, not single family residences on an existing lot of record. Further discussion is held regarding the purpose of the statue. Atty. Tanguay states that if there is a road there has to be some mechanism to assure a way to regulate road access adequacy, the purpose of this statute.

Atty. Tanguay states that they do not want to pave the road or open up further subdivision opportunities. They are just trying to provide adequate access to the lots.

c. the construction of the structure will not tend to distort the official map or increase the difficulty of carrying out the Master Plan. Atty. Tanguay states that he believes that this is an “or” not an “and”. He states that the town does not have an official map. As far as the Master Plan, the NCC’s letter refers to the Master Plan and specifically references protecting designated conservation areas, The Big Woods. He explains that the proposal is not to build a new road as there is a road that they believe to be adequate and serve the purposes necessary. They are trying to upgrade the existing road knowing that the road has been upgraded to satisfy logging requirements. In the end there will be 3 tracts of 10 acres each with one house on each lot and there will be no further subdividing allowed as there is no frontage. He adds that the ZBA granted a special exception because the lots were existing lots of record. Any new lots would not be applicable. They will add a stipulation noting no further subdivisions, if required. He feels that the purpose will be served, not defeated; they are not violating the Master Plan.

Atty. Tanguay states that should the board require Mr. Hendrick to pave the road in order to obtain building permits and to satisfy the statute that will open the opportunity for further subdivision in the town. He adds that the longer the land sits, the greater the possibility that someone will build a road and in the long run, should the board deny the request, the board is defeating the purpose of the Master Plan. Atty. Tanguay states that the proposal is not violating the Master Plan.

Subdivision regulations are mentioned by Atty. Tanguay who states that this is not a subdivision; they are existing lots of record. He refers to the April 8 NCC letter and states that the letter mentions the ZBA issues of the relief is a violation of their role as trustees to the public welfare. He asks where the ZBA became such trustees. Rather, what the courts have said is that the ZBA is the constitutional safety valve, arbitrators. If what is happening is something other than assuring road accuracy then such a denial is quite likely to constitute a taking. This is what the courts mention as the constitutional safety valve.

d. the issuance of the permit or the erection of the building will not cause hardship to future purchasers or undue financial impacts to the municipality. Atty. Tanguay states that he believes this is an “or” and only one of the criteria must be met. He refers to a statement made by Atty. Callen noting that when someone lives far off of a road that is less than section I, there will be costs incurred. He explains that this is not what the statute is referring to. It is referring to an undue hardship or burden on future purchases.

Atty. Tanguay states that if the road is adequate then future purchasers will not be facing undue financial burdens. Mr. Hendrick will be proposing a road association and a road maintenance agreement among his three lots and the MacDonalds. He adds that Mr. Hendrick has had some preliminary inquiries with the residents at the beginning of Corson Dr. who have expressed an interest in the agreement.

Atty. Tanguay addresses the financial impacts to the municipality by stating that there will be none. He states that they are not requesting the town to assist in building of the roads or adding money. This is proposed to all be completed private. A waiver has been signed and a notation will be in the deeds recognizing that there will be no municipal services provided.

Atty. Tanguay provides three letters one from the police chief, fire department, and Leighton Logging. The police letter states that the chief has visited the area on patrol and finds the road in good condition and passable, and has no issues for emergency vehicles needing access. The fire department letter notes that they have no issues either so long as a fully loaded Class A pumper, with a weight of 55,000 lbs. has a sufficient area at the end to turn around, approximate length of 30 ft. Atty. Tanguay refers to the logging letter and confirms that they built the road and they haul stone and gravel over the road with trucks weighing more that 55,000 lbs. He adds that Mr. Hendrick is willing to put in a turn around at the end of the road or every 1,000 ft. He will do what is reasonable and necessary in order to get these vehicles there safely and that they are able to turn around as needed even though there is no obligation to have the vehicles accessing the areas.

Atty. Tanguay refers to the letter from the planning board directed to the BOS. He states that they agree with the planning board in the fact that the road exists currently as an easement only and is not a private road. They agree that the proposed road is not built to the rural road standards. He adds that they do not want it at the rural road standards. In addition, he notes that the road will total in excess of 3000 ft. and the subdivision regulations set a 1,000 ft. limit; however, this is not a subdivision. He states that they agree that the criteria have not been met and that is why they are seeking relief from the ZBA. He also notes other items and potential impacts in the letter which are speculation. Atty. Tanguay states that nothing is noted in the letter suggesting an impact. The road is built to standard, is engineered; and culverts and ditches have been added where necessary. There are no wetland or drainage implications that have been addressed or been noted.

Atty. Tanguay addresses the abutters letter, in which implies that Mr. Hendrick is willing to sacrifice the neighbor’s lifestyle in order to facilitate the intended use. However, they noted that a large road could be built. Atty. Tanguay states that a big road is what no one wants.

In closing, Atty. Tanguay states that he believes that they have more than adequately have met all of the criteria. The issue has been previously addressed and nothing new is in the rehearing that should cause the board to change their decision. The proposal is for existing lots that makes sense, meets the statutes and goals of the Master Plan.

Mr. Farr calls for a recess at 8:25. Session resumes at 8:32.
Atty. Tanguay refers to the ZBA March 3 minutes and reads a portion reference “or” and “and”. He comments that Jed Callen references the wording in the same manner as the statute does for “or” and does not use the word “and”.

Mr. Farr asks for abutters comments. Mr. Troy states that many points in his letter are mirrored within the town board’s letters and have already been addressed. He adds that most of his points were focused on 674:41(II) criteria with regard to the Master Plan. He acknowledges that there are differences of opinions yet refers to page 43 noting that the town will make an effort to conserve areas and identify that the town enacts policies to restrict the construction of roads. He states that it has been referenced that the road has been upgraded which seems to be a contradiction of what is stated in the Master Plan. He also adds that he does not deny additional comments relative to lifestyle and responsibility shifting. Mr. Troy reiterates that at this point he feels that the board and town have a proactive not just a passive roll to protect these areas. He explains that there are wetlands in the area and references the comments from the NCC letter in that they are valid points. He states that the any decisions made will have long term ramifications and there is a potential for hardship whether from road maintenance costs or possible difficulty selling with the obscurity of who will take care of the road. He adds that there may be financial consequences to the negative.

Mr. Troy notes comments made regarding the homeowners association. He states that he was not approached in regards to joining the association as well as his immediate neighbor. He adds that there are only three homes on Corson Dr. at this time. He notes that statements are being made that the existing homeowners are in agreement, which may not be an accurate statement.

Atty. Laura Spector of Mitchell and Bates is present representing the selectmen. She states that the selectmen are in opposition of the requested relief and provides rebuttals to previous comments.

Atty. Spector refers to her memo of law previously provided to the board. She explains that the lot does have frontage on Bow Lake Rd., which is not being proposed to be used to access the lot off Corson Dr. a private, narrow road. She adds that this is also an easement. The length of the road is approximately 550’ and no testimony has been provided as to how long the proposed driveway will be. She states that she estimates about 300’ based on plans she reviewed; however, it could be more than 1,000’. Atty. Spector adds that the planning board chair is present to speak on the planning board’s subdivision regulations, which limit cul-de-sac lengths to 1,000’. She notes that this is not a subdivision and the regulations do not directly apply; however, the purpose of the regulation is relevant.

Atty. Spector addresses the purposes of frontage requirements. She states that she agrees with Atty. Tanguay that it is to provide a safe and sane access to the parcel. The property is at least 850’ from a Class V road, her estimate, which may make it difficult to access especially in the spring. Even though there has been an offer to record a notice of the limits of municipal responsibility and liability at the registry of deeds, she explains that first responders are heroes and will attempt to access the property and that needs to be considered. She adds that the Supreme Court has held that while the waiver is recorded, any guests are not bound by the waiver. She adds that there is a potential for a lawsuit from third parties and cites relative case law involving the Town of New Durham.

Atty. Spector refers to RSA 674:41 (II) authorizes the board to issue building permits for lots that do not meet the requirements of RSA 674:41(I). She explains that paragraph (II) is an appeal of a denial for a building permit and is not intended to allow all of the lots with no frontage or do not have the kind of frontage referenced in paragraph (I) to be built upon. She adds that legislature did not intend that RSA 674:41(II) to used to allow construction on lots with no frontage. She refers to a 1995 amendment that overturned a Supreme Court case which allowed construction in a situation exactly as this proposal. The Supreme Court said that access could be by a private right of way and the legislature said no as access equals frontage.

Atty. Spector references the criteria required to be met. She explains that even if the RSA allows the board to authorize building permits on a property with no frontage on any road the applicant must meet the criteria and she adds that there are 6 criteria to be met. She adds there are cases when sometimes “or” means “and” and this is one of those times. She provides an example and notes that it must be shown that the applicant will neither distort the official map nor increase the difficulty of caring out the Master Plan.

Criteria:
a. the enforcement of RSA 674:41(I) would entail practical difficulty or
unnecessary hardship. Atty. Spector states that two contradictory pieces of testimony have been noted. She explains that the board heard that the rural road standards require a gravel road and the testimony related to the cost of paving and there are no requirements that the road must be paved. Any testimony provided tonight relative to paving is irrelevant. She adds that what has been presented supports the conclusion that there is no unnecessary hardship to enforce 674:41. She adds that it has been stated that there is a road that all but 4’ in width meets the rural road standards of the town. Atty. Spector adds that Mr. Hendrick owns the property on which the woods road runs and there is no reason why the road cannot be expanded an additional 4’. In addition, nothing has been heard regarding the process being costly, impractical, or unnecessarily hard.

b. the circumstances of the case do not require the building or structure to be related to existing or proposed streets. Atty. Spector states that the circumstances of the case do require the building to be related to the proposed or existing street. She adds that she concurs with the hunting lodge example previously noted. She explains that the criteria needs to be applied or ignored. To apply it literally the lots can only be developed if they do not require vehicle access and adds that another example is a barn. Ms. Spector stated that there will be a house on the lot and recalls that a house generates 10 vehicle trips a day and therefore is related to a street.

c. the construction of the structure will not tend to distort the official map. Atty. Spector states that the town does not have an official map. As far as the Master Plan, she explains that this lot is outside of the Big Woods Area that is an area in town that the Master Plan designates as an area to try to conserve. It proposes to have cluster housing, which these four proposed houses are not clustered, spread out and are over 10 of acres. She adds that the proposal is to construct or improve a long road to access the houses. In addition, Ms. Spector states that the proposal is not protecting the natural resources. She explains that the lot is uphill form a designated prime wetland and the constructed driveway will not be held to any standard to manage storm flow or excess runoff, which will increase the difficulty in carrying out the Master Plan.

Steve Roy, chair of the conservation commission, refers to the language noted in the Master Plan restricting development in these areas. He explains that the general concept of the application is to give specific allowance to develop the area by granting the appeal which is fundamentally against the intent of the Master Plan.

Mr. Roy explains that the function of the prime wetland in this area is to absorb flood waters from the back bay area of Bow Lake. He adds that to maintain function, the wetland needs to remain in its general condition. The proposed driveway will choke off sheet flow that is responsible for removing sediment. The natural condition will be undermined by a driveway or roadway that is not meeting any style of construction standards. This will migrate sediment right into the prime wetlands.

d. The construction would not increase the difficulty of carrying out the Master Plan. Atty. Spector states that contrary to previous testimony, enforcing the statute and requiring that the applicant meet the criteria statute will not result in a taking of the property. The regulations were in place when the parcel was purchased.

e. The construction of the structure will not cause hardship to future purchasers. Atty. Spector states that the construction will cause hardships to future purchasers. She explains that there is 550’ of private rd. with a driveway of at least 300’ long, and there is representation that a homeowners association will be formed to maintain Corson Dr. She adds that you cannot make the existing property owners join or contribute to maintenances costs. Ms. Spector states that future owners will bare a greater than there proportionate share of the maintenance costs of Corson Dr. She adds that Mr. Troy noted that at least two abutters have yet to be contacted regarding the homeowner’s association.

Atty. Spector acknowledges previous representation that if the road is adequate there would not be any undue burden on future purchasers; however, that ignores any financial burden that would be endured by future purchasers.

f. the construction of the structure will not cause undue financial impact to the municipality. Atty. Spector states that in addition to issues relative to first responders, allowing the development of the four homes creates the possibility that more homes will be developed in the area and then more people will want to develop in the area. She explains that as lots are developed it is likely that the town will be petitioned to accept the road as a Class V road. She notes that there are 4 applications in front of the board and the board should consider the cumulative effect of granting the relief.

Att. Spector calls attention to the letters received from both the fire and police departments. She states that they are not really supportive as they state that the existing road is fine. At no point the chiefs state that they are in favor of the proposal. She proposes that Mr. Hendrick has not and cannot demonstrate that the construction of a home satisfies the criteria.

Ms. Roy, chair of the planning board (PB), states that the planning board is also in opposition to the requested relief. She requests to clarify the intent of the 1,000 ft. requirement in the subdivision regulations. She states that the board has been very consistent in applying the regulation. She requests that the board look at the proposals for all four lots and the entire road. The cumulative length is over 3,000’ long. A turn around was mentioned by Atty. Tanguay, which she deems to be a cul-de-sac at the end of a road. The intention of the PB with this regulation is relative to the safety of the public that is accessing the lots. She states that it is the planning board’s purview to take into consideration the public welfare.

Ms. Roy states that the access issues are a big concern. Flooding may prevent first responders to be able to access the lot. Again she adds that the board has been consistent with limiting roads to 1,000’.

Another point Ms. Roy addresses is private roads. She states that the planning board feels very strongly that private roads by nature present an undue hardship on the road. She adds that the selectmen could testify to recent issues of costs related to plowing, and requests for relief from the financial hardship. She notes that agreements have been dissolved when buildings or residences on roads are sold and there are civil issues ongoing on private roads.

Ms. Roy states that Atty. Tanguay referenced existing lots and tried to distinguish existing lots of record from subdivisions. She refers to the Northwood Development Ordinances, which were updated March 2008. She states that the road frontage requirements are for all lots for new building development not necessarily only new lots of record or new subdivision. She states that the board’s intent with the clarification was to make sure the frontage requirements are for all lots and also means for any single building permit.

In addition, Ms. Roy refers to several comments made by Atty. Tanguay relative to the engineering of the road. She states that possibly the logging letter provided is testifying to the engineering; however, the planning board has not been privy to an engineering design or drainage issues, or an actual engineered plan regarding the upgrading to the road.

In closing, Atty. Spector requests that the board deny the relief that has been requested as the applicant has not been able to meet the criteria and cannot do so.

Steve Roy, NCC chairman, states that the CC is not supporting the application. He states that the underlining premise here is to make sure that further development does not continue and make sure that there is no requirement to pave the road. In addition, he addressees the statement regarding the ZBA being trustees. He states that the Master Plan process drives the town’s ordinances, and town’s regulations, and forms the formal democratic process. The application is requesting that the board set aside the process and address a private interest. The members are trustees of the public welfare in that the decisions are formed by the intent of a form of the democratic process.

Jon Hendrick states that this is not in a steep slope area or a conservation district area, it is only near the Big Woods. He adds that all abutters have been notified regarding the homeowner’s association accept for the Troys.

Mr. Hendrick refers to comments from Atty. Spector when she notes more lots being developed beyond this road. He asks which lots as there are no rights of ways over his land. He explains that by separating the lots he is eliminating the ability to subdivide and adds that he is not trying to subdivide. Therefore, there will be no one beyond him. Mr. Hendrick states that there is currently no private road and this is what he is trying to institute. He purchased a problem and is trying to fix the matter.

Mr. Hendrick explains that the ordinances were voted on in December and passed in March. He states that he applied prior to the process of the newly created lots issue. This is not a newly created lot and something that was approved in March should not apply to him as he has been in the process for 6 months.

Jon Hendrick states that this proposal is not a subdivision. He refers to the RSA definitions of a subdivision and described it as beginning with one lot and ending up with two lots, three, or four. He feels that this is a driveway matter.

Mr. Hendrick explains that this lot and the Troy’s lot are identical with the exact same frontage, none. He states that four years ago he was told by the building inspector that he would be issued a building permit for this lot. He adds that he was given a waiver.

Jeff Hendrick asks how this is going against the purpose of the Master Plan. He explains that the proposal is for 4 houses on a total of 190 acres. This is a better proposal as it is keeping the area rural. Work has been done and an electrical permit has been approved. He states that if the board does not allow the proposal the only thing left is to sell.

Atty. Tanguay refers to a comment made by Atty. Spector regarding the fact that the lot is a pre-existing lot of record. Atty. Tanguay states that before the statute was changed if the lot was a pre-existing lot of record you were automatically okay. He refers to the case and states that with this case, the fact that you were pre-existing lot of record does not mean you are approved.

In addition, Atty. Tanguay states that regarding the issues with the first responder and the town’s liability, he states that Atty. Callen has a different opinion and stated that the town would not be held liable to first responders as they do not need to be heroes and the town could not be sued for not maintaining the road, and not being able to assist if an emergency occurred, should the road not have been maintained and made passable. He adds in closing that it is a difference of opinion.

With no further comment, Mr. Farr closes the public portion.

Mr. Farr notes that past practice of the board has been to not proceed past 10:00. He asks the applicant and representative for the next case as to their preference to continue the case. Atty. Wirth requests to be continued. Discussion is held regarding another date and Nona Holmes makes a motion, second by Roy Pender, to continue case 08-11 to June 2, 2008, at 7:00 p.m. Additional discussion is held regarding rescheduling the previous Hendrick cases 08-06 and 08-07. Nona Holmes makes a motion, second by Tom Lavigne, to continue cases 08-06 and 08-07 to June 16, 2008, at 7:00 p.m.

Roy Pender states that he feels that he needs additional information relative to road requirements. Copies of the town’s rural road standards are provided and reviewed.

Ms. Roy refers to the town’s development ordinances, Section 3.01(B), relative to frontage requirements. She also notes section 2 which references the design standards for roads. She further reviews the rural road standards and notes that some items are the selectmen’s responsibility i.e. gravel and asphalt surfaces, section 9 that includes the supervision of the BOS and the town’s engineer. Section 12 references drainage and construction and the designs of those systems.

Ms. Spector notes the car trip requirements. She states that for 0-50 trips per day the road must be 18’ where it is now only 14’ with 2’ shoulders, center line to the ditch line must be 15’ and surface of gravel. Slope information and coarse depth is noted.

Atty. Tanguay refers to section 15, which states that the minimum is 22’. He adds that page 4 states that the states requirement is 18’. Ms. Roy states that the 20’ includes the shoulders.

Mr. Pender states that the road must be 4’ wider; it can be gravel, and have 2’ shoulders on each side. He adds that is the intent of RSA 674:41.

Ms. Roy notes section 13 and notes the gravel base details. She explains that the board has required borings be done and she notes the drainage component.

Tom Lavigne asks if the road was created to the required standards, does the PB accept the road. Atty. Spector replies that there is no formal acceptance for this road as it is a private road. She explains that if there were to be a private road constructed that meets the rural road standards then it would be addressed under paragraph (1) of 674:41. A building permit would be issued in that case only if there was frontage on that private road and if the BOS voted to authorize it and after review and comments were received by the planning board. Atty. Tanguay states that they do not want a road and adds that they would not need to be here if they were proposing to build the road to specifications.

Mr. Pender states that they need an additional 4 ft. and that is not an unreasonable request. He adds that he would deny the request based on the fact that this is so close.

Mr. Lavigne states that he is looking at the road as needing 22’ and they can only meet 14’, which 8 ft. more is required. Mr. Lavigne states that RSA 674:41 states that certain requirements must be met and he does not feel that this has been done by the applicant. He adds that he may like the idea of this development and keeping within the rural character of the Town of Northwood; however, in reviewing the criteria in the statute, he cannot see how the criteria for the appeal have been met.

Mr. Farr states that it is his opinion he personally does not like 674:41. He may like the thought of one house on 60 acres, but he adds that putting in this road is no more difficult for this person than any other person that has built a road for access. He does not see how this is an unnecessary hardship. He adds that this not a topographical situation. He adds that if the choice is to build a year round house, there must be access to a street. He feels that it is only logical if there is a residential home it needs to be connected to a street. As far as the Master Plan, Mr. Farr states there were argument made for this criteria not being met. He adds as far as hardship, you cannot know the hardship of the current or future owners. Mr. Farr addresses the financial impact to the town. He states that the firemen will get to the house and that is an impact to the town. He too does not feel the criteria have been met to grant relief from RSA 674:41.

After presentation of summary comments by the board members, Tom Lavigne makes a motion, second by Roy Pender, to deny the applicant’s appeal seeking relief from RSA 674: 41(II). Ms. Holmes states that she feels that legally the board should deny the application. Motion passes unanimously; 4/0.

Mr. Farr thanks all in attendance and adds that the board appreciates their courtesy.

Motion to adjourn is made by Roy Pender, second by Tom Lavigne. Motion passes unanimously; 4/0.

Respectfully submitted,
Lisa Fellows-Weaver
Board Secretary

[ Back ]

top of page