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Minutes of 10/3/2013 DRAFT

October 15th, 2013

TOWN OF CARROLL
PLANNING BOARD

MINUTES
October 3, 2013

DRAFT

Members Present: Chairman, Donna Foster, Vice Chairman, Richard Nelson, Selectman Representative, Bonnie Moroney and members, Kenneth Mills, Evan Karpf, alternate member, Michael Hogan and Town Counsel, Jae Whitelaw.

Also present were: William Dowling, David Scalley, Joan Karpf, Chris Ellms, Ken Mosedale, Paul Bussiere and Steve Hilliard.

7:00 PM A quorum being present, Chairman Foster called the meeting to order.

The Pledge of Allegiance was recited.

Minutes Review:
Minutes of September 5, 2013

Chairman Foster said after the last Law Lecture that she attended, she needs to look at the DVD and read over the minutes.

Ms. Moroney offered a motion to table the minutes of September 5, 2013. Mr. Mills seconded the motion. The vote was 6 – 0. The motion carries.

Correspondence:
Code Enforcement Officer’s Report.

This report was made available at this meeting to the members.

Dredge and Fill Application Response from Wetlands Program Specialist, Matt Urban re Lennon Road – Informational only

Chairman Foster said this is for Lennon Road which is a State road.

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Rines V Town of Carroll

This was made available to the members this evening.

Report of Officers and Committees:

Master Plan Sub-Committee

Mr. Mills said the Sub-Committee approved minutes of July through September and they will be forwarded to all. He said, The Sub-Committee is still working on the survey.

Site Plan Review Regulations Update Sub-Committee

Mr. Karpf said the Sub-Committee will meet next Tuesday evening

Chairman Foster said, the Secretary has broken down the Regulation into sections making items easier to find items. She submitted a list of areas she wants the Sub-Committee to look at. (Attachment A). She also asked that each member take a look over the update. She said she has asked George Brodeur to look at them also to give input on the technical aspects of the Regulations. She said she would like this to be on the Town’s web-site by the beginning of next year.
It was noted that two public hearings are required to change the Regulations. Mr. Karpf said the Board could use the phrase “industry standards” instead of being specific regarding the technical aspects since those standards are likely to change. He also questioned a disclaimer.

Unfinished business:

Continuation of Public Hearing – Hunt Properties LLC, Map 207 Lot 36, Subdivision off Paquette Drive – to reconsider amending the conditions of approval which was granted on April 7, 2011

Mr. Karpf recused himself and stepped away from the table, and sat in the audience as a member of the public.

Chairman Foster read a statement. (Attachment B).
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David Scalley was asked if he had an application for a waiver and why he is requesting it. Mr. Scalley submitted his application (Attachment C) He said he did not understand that third party review was for the entire sub-division. He said his understanding was that the inspection (by the Town Engineer on the project, Horizons Engineering, the third party inspector) was for the plan and technical review. He said Section 419 (of the Sub-Division Regulations) is not clear. He handed out copies of the Major Subdivision Application & Plan Review by Horizons Engineering. (Attachment D)

Mr. Scalley also stated that the Bond section of the Regulation is not clear. He read from previous minutes taken during his application public hearing for his Ruby’s Way subdivision (2011) which states “You do not have to have a Bond, but you cannot sell any land until Provan & Lorber gives their approval on the road” (Attachment E) Chairman Foster read the section and said it was on bonding roads , Section 419.

Mr. Scalley said, what he is trying to show is that some sub-divisions had no bonds or third party review.

Ken Mosedale, a developer from Franconia, who has done sub-divisions in Carroll (Woodland Acres phase I and II) said when he came to the Planning Board in November of 2004, the Town did not file anything (with the Registry of Deeds) once the approval was given and did not file anything until the project was completed. He said when phase II was approved in the winter of 2005 the mylar was recorded right away.

Mr. Karpf (as a member of the public) said, the reason why the bond wasn’t asked for is the road would be private and that was noted in the deeds. He said the minutes of October 2005 show that the same offer was made to Mr. Scalley which would mean the Town would not be responsible for maintenance and repair of the road.

Mr. Scalley said the Association (of Woodland Acres) could vote to pave the road and then come to the Town for acceptance. He gave out copies of the deeds (Attachment F) (NOTE: see #5)

Mr. Mosedale said (regarding Woodland Acres) he told the Board in the future the road might be a Town road but he didn’t want to pave it at that time. Mr. Karpf disagreed with that statement.
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Chairman Foster said where there is a private road there is always a possibility the Town will vote to accept it as a Town road.

Attorney Jae Whitelaw said, there are two conversations going on. One is the issue of the bond and the other is the Town requiring third party review of the construction from beginning to end of the sub-division (Ruby’s Way).

Mr. Scalley said, they are both on the table. If the mylar was not recorded, he would only need a street opening bond. He is asking the Board to waive both the requirement to have a bond for construction of the sub-division road and for the third party review.

There was further discussion of Section 419 with different interpretations,

Attorney Whitelaw said the first step is to look at the approval and see if a bond is required. Chairman Foster read RSA 674:36,III,b (in part) “Shall provide that, in lieu of the completion of street work and utility installation prior to final approval of a plat, the planning board shall accept a performance bond, irrevocable letter of credit, or other type or types of security as shall be specified in the subdivision regulations; provided that in no event shall the exclusive form of security required by the planning board be in the form of cash or a passbook. ……….” She said, if the streets are not going to be completed, the bond is required.

It was noted that at the April 7, 2011 Planning Board meeting the minutes reflect the application approval and the letter of decision was sent in which it was stated, no work to be performed until surety is in place.

Mr. Scalley said he supplied the Town with the bond for the street opening and it was his impression it was for construction of Ruby’s Way. Mr. Karpf stated the bond was only for cutting across (opening the street) of Paquette Drive to bring the water line to the subdivision and not for the subdivision road. Mr. Karpf said at their January 3, 2013 meeting, the minutes reflect, the Planning Board reaffirmed by vote, that a bond was required for Ruby’s Way and the applicant was to pay the attorney fees for the review of the bond.

Attorney Whitelaw said the Board could withdraw final approval, the applicant wouldn’t be required to post a bond, he could construction the road and the Town would inspect. Mr. Scalley said he doesn’t want to do that because then he would have to come under the new
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subdivision regulations. Attorney Whitelaw said he would not be submitting a new application, so the Regulations would be the same ones that were in effect at the time he filed the application. If the application and approval is revoked he would have to file a new application but if the Board just revokes the filing of the mylar, he could proceed without a bond.

Mr. Karpf said, the applicant brought the mylar to be signed by the Chair along with a check for filing fees as the Registry of Deeds, if he didn’t want it filed, why did he bring it to be signed right away. He said, the Secretary then took the signed mylar and sent it to be filed. He asked if the 60day deadline would come into play here. Attorney Whitelaw said, no it would not.

Mr. Hogan asked Mr. Mosedale if the roads (he constructed) were inspected by the Town Road Agent. Mr. Mosedale said, yes it was Billy Rines. AttorneyWhitelaw said a question for the Board might be whether the Road Agent can do it (inspection) or should it be a Town Engineer. Mr. Scalley said, the Road Agent inspected the opening of Ruby’s Way and issued a report.

Mr. Karpf asked if prior boards’ decisions influence how the present Board handles its decision. He cited the cottages project and their requirement for a third party review and bond which they accepted as understood. Chairman Foster said the Board is being fair to everyone.

Attorney Whitelaw said, at last month’s meeting the Planning Board determined that the Regulation were very clear regarding third party review and it was going to look to see if the present interpretation was the same as the interpretation from previous Boards on previous applications.

Chairman Foster said she never heard of holding back filing of a mylar relative to a bond issue.

Ms. Moroney said regarding third party review, the Town has Provan & Lorber for water testing and they have listed three or four projects for which they have been the Town’s engineer (third party reviewer) in the Bretton Woods section of Town but not for the entire Town.




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Chairman Foster read the waiver part of the Regulations:

5.10 Waivers:
a) General
Where the Planning Board finds that extraordinary hardships or practical difficulties may result from strict compliance with these regulations and/or the purpose of these regulations may be served to a greater extent by an alternative proposal, it may approve waivers to these subdivision regulations so that substantial justice may be done and other public interest secured, provided that such a waiver shall have the effect of nullifying the intent and purpose of the regulations; and further provided the Planning Board shall not approve waivers unless it shall make findings based upon evidence presented to it in each specific case that:

1. The granting of the waiver will not be detrimental to the public safety, health or welfare or injurious to other properties located nearby;
2. The conditions upon which the request for a waiver is based are unique to the property for which the waiver is sought and are not applicable generally to other property;
3. Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of these regulations are carried out;
4. The waiver will not in any manner vary the provisions of the Zoning Ordinance, Master Plan, and/or Official Map.

Chairman Foster said Mr. Scalley’s engineer (Headwaters Hydrology) sends reports to the Department Heads as the project proceeds.

Chairman Foster asked for opinions on number 1 of the waiver criteria. Ms. Moroney
said it is not applicable by itself. Mr. Mills asked if Horizons Engineering ok’d Headwaters plans and supervised the project. The answer was no. He said he was concerned if a switch done mid-stream maintains consistency. He said there seems no clear answer. He said the Board has no designated engineer. There should be some sort of continuity of how things would be done and that would be through a third party reviewer.


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Chairman Foster said regarding the bond issue, the applicant does not think the Regulation is clear and concise.

It was the consensus of the Board regarding criteria #1 regarding the bond matter, that there was no problem that the granting of the waiver would be detrimental to public safety, health or welfare or injurious to other properties located nearby.

Chairman Foster said regarding criteria #2, this is based on the bond and not the third party review. Mr. Scalley disagreed stating it is on both the bond and third party review. Attorney Whitelaw questioned if the applicant is required to have it (bond) the Board needs to look at what is different from others (projects) and why this is different.

Ms. Karpf asked what is the procedure for public hearings? Chairman Foster said the Board listens to the applicant then deliberates and then gets input from the public. Attorney Whitelaw said it is not unusual for a board to “take stock “of where it is. The answer was, there is no written procedure.

Chairman Foster said the Board reviews (the project) as it goes along and doesn’t hear from the engineer. A question was asked if the engineer was bonded. Attorney Whitelaw said, opinions differ but they have standards to go by.

Chairman Foster said the Board would come back to criteria #2.

Chairman Foster read criteria #3 again. And questioned if there is a physical problem (with the land). Mr. Mills said they must weigh the letter of the law as opposed to the intent of the law as a starting point. Attorney Whitelaw asked if every development is required to have third party review, what is the purpose and what is the difference here. Consider what would be involved in time and money if the Town staff and/or employees were doing the inspections rather than having the applicant paying for it (by an outside engineer).

Mr. Scalley said the conditions of the April 7, 2011 conditions don’t state specifically that he needs a third party review.



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Attorney Whitelaw said, a question for the Board is, is that enough. Ms. Moroney said there is no physical problem (with the land). Mr. Bergum said the criteria doesn’t apply because potential hardship is based on communications and therefore (the criteria) is not applicable. Mr. Mills agreed that it doesn’t apply.

Mr. Nelson said, this Town and State is different from what he is used to in that an engineer is always involved. Everywhere it’s based on an engineer or architect. He said the applicant has an engineer involved and he doesn’t feel it (criteria) is not applicable.

Mr. Bergum said we (the Board) can have disagreements of opinion and asked to move the discussion along.

Mr. Mills said the issue of criteria #3 is topography and that’s not the issue at hand.

Chairman Foster asked Mr. Nelson what kind of bids he was familiar with in Minnesota. Mr. Nelson said when he first came to Town he saw so many people with so many different opinions he had to try and educate himself

Chairman Foster asked the consensus of the Board on Criteria #3. Ms. Moroney said it was not applicable.

Chairman Foster read Criteria #4, It was the consensus of the Board a waiver was not going to effect the Zoning Ordinance, Master Plan or Official Map.

Chairman Foster returned the discussion to criteria #2 which she read again. Attorney Whitelaw suggested the Board may want to hear from the public.

Ms. Karpf addressed the Board and gave copies of Information regarding the Hunt Properties LLC Subdivision (Attachment G), and Reasons not to change the conditions of approval (Attachment H) Ms. Karpf said the Board seems to have the opinion that their Regulations are too strict and hinders applicants requesting development. She said this applicant (Mr. Scalley) was given waivers and he was asked to sign a statement that he understood everything, which he did sign. She said as she listened to the Board deliberate, it gave her hope that the Board will be objective which was not her original thought due to an e-mail in which Chairman Foster states she had discussion with the applicant (Mr. Scalley) outside a public
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meeting, which is ex-parte communication. (Attachment J) She said it appears, according to e-mail, that the new engineer (Horizons Engineering) was hired by Mr. Scalley before the Board voted to let the applicant (Mr. Scalley) switch from Provan & Lorber to Horizons Engineering. She said these e-mails give her concerns regarding the Board objectivity. Ms. Karpf said, she was also skeptical of the Board’s objectivity because Chairman Foster had allowed Mr. Scalley to advertise his business on her highway billboard on her property (at Foster”s Crossroads Store) for no cost to Mr. Scalley and Mr. Nelson occasionally drives Mr. Scalley’s vehicles as a favor. She then read the two documents (attachments H & I). Chairman Foster said she had given Ms. Karpf more time than allotted and asked that she conclude.

Mr. Karpf said the applicant has a web-site on which he states he has 30 years of experience and he (Mr. Karpf) finds it unacceptable that Mr. Scalley doesn’t know regulations.

Mr. Scalley asked why the applicant didn’t have a choice (to register the mylar or not and have a bond or not) and mentioned he has various e-mails that contradict Ms. Karpf. He said he has only done 4 or 5 subdivisions.

Ms. Moroney asked about the mylar filing. She asked if the applicant wants the mylar revoked. Mr. Scalley said yes if it doesn’t mean he has to file a new application.

Ms. Moroney offered a motion to remove the final approval of the subdivision (Hunt Properties, LLC, Map 207 Lot 36 – off Paquette Drive, known as Ruby’s Way) for the sole purpose of allowing the Applicant to construct Ruby’s Way without posting a bond. This does not affect the requirements to either have third party review (Horizons Engineering) or obtain a waiver of that requirement. The subdivision will continue to be subject to all Zoning Ordinances and Subdivision Regulations in effect at the time of application. The Planning Board will file the appropriate documents with the Registry of Deeds and pay any recording fees. The motion was seconded by Mr. Hogan The vote was 6 – 0. The motion carries..







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Regarding waiver of third party review, Ms. Moroney said she doesn’t see that the Board has enough (to grant a waiver). She said, the conditions of the property are not different.

Mr. Mills offered a motion to approve the Applicant’s (Hunt Properties, LLC) request for a waiver from the requirement that he have a third party review of the construction of Ruby’s Way (a subdivision, Map 207 Lot 36 off Paquette Road). Mr. Nelson seconded the motion.

Discussion; Mr. Hogan asked Mr. Mosedale if he has had third party review. He said the Road Agent did the inspections. Mr. Mills said he is against granting the waiver because he is concerned with due diligence and an unbiased third party reviewer would alleviate that concern. Chairman Foster said she is not against third party review and giving the applicant the ability to remove the bonding requirement (with the revoking of the mylar), they should have third party review.

The vote was 0 – 4 – 2 (Mr. Hogan and Mr. Nelson abstained) the motion fails.

The waiver was not granted. Horizons Engineering will perform the third party reviews and such reviews will be paid by the Applicant (Hunt Properties, LLC).

(Note: two e-mails regarding bonding which were referred to in the previous discussion are
Attachment K and Attachment L)

Mr. Karpf rejoined the Board.

Public Hearing – CNL/Bretton Woods Alpine & Country Club, Map 211 Lot 14, application for a waiver to extend the temporary building permit of the temporary building by (5) five years – located at 95 Ski Area Road, Bretton Woods

Chris Ellms and Steve Hilliard spoke to the Board. Mr. Bergum asked why they are requesting a five year extension when the last two extensions were for 3 years each. They replied that they are projecting out for 5 years and asking for 3 years would be disingenuous. They said the “tent” building was not intended to be permanent and is not the best use of the land it is located on. They said building a permanent structure depends on the economy.


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Mr. Nelson offered a motion to grant a waiver to extend the temporary building permit on Map 211 Lot 14 of the temporary building for an additional 5 years. Mr. Mills seconded the motion.

Discussion; This granting of the waiver will require approval of the Fire Chief for fire and life safety as well as the Code Enforcement Officer’s approval.

The vote was 6 – 0. The motion carries.

Cancellation of Public Hearing – Map 210 Lot 7, CLP BW,LLC

Chairman Foster said this is informational for the public and abutters because the applicant has retracted his application to relocate the stables.

Other Business (public comment):
Secretary’s Job Description

Mr. Karpf offered a motion to table the Secretary’s Job Description. Mr. Bergum seconded the motion. The vote was 6 – 0. The motion carries.

Public comment

Mr. Scalley asked if it is in the regulations when the third party reviewer (Horizons Engineering) will inspect.

Mr. Karpf, as a member of the public, said he suggests that the Board send a letter to Horizons informing them they are the Town’s third party reviewer on the Hunt Properties, LLC Ruby’s Way subdivision project.

Chairman Foster asked that Attorney Whitelaw draft that letter.





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Mr. Bergum offered a motion to request that Attorney Whitelaw draft the letter to Horizons Engineering informing them that they are the Town’s third party reviewer for the Hunt Properties LLC, Ruby’s Way subdivision. Ms. Moroney seconded the motion. The vote was 6 – 0. The motion carries

Mr. Hogan offered a motion to adjourn. Ms. Moroney seconded the motion. The vote was 6 – 0. The motion carries.

9:57 PM Chairman Foster adjourned the meeting.

Respectfully submitted
Linda J. Dowling
Secretary
Carroll Planning Board