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Minutes of 9/5/2013 APPROVED

November 13th, 2013

TOWN OF CARROLL
PLANNING BOARD

MINUTES
September 5, 2013

APPROVED

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

Also present were, Michelle Gamache, Charles Gamache, Bill Dowling, David Ikasalo, Jane Ikasalo, Judy St.Croy, Paul Bussiere, Joan Karpf, Chris Ellms, Harold Garneau, David Scalley, Jim Covey, Mary Devine, Mathew Devine, Kathy Gianopoulos, Lucia DePamphilis, John Seveuy, Tammy Dubriel and Stephen Hilliard.

7:10 PM A quorum being present, Chairman Foster called the meeting to order.

The Pledge of Allegiance was recited.

Minutes Review
Minutes of August 1, 2013

Chairman Foster noted an error on page 2, last paragraph, starting “Ms. Tucker” should be before the previous paragraph starting “The two abutters”.

Mr. Nelson offered a motion to approve the minutes of August 1, 2013 as corrected. Chairman Foster seconded the motion. The vote was 4 – 0 – 2 (Mr. Mills and Dr. Karpf abstained). The motion carries.

Correspondence
Code Enforcement Officer’s Report

The Report from Stan Borkowski, CEO, dated July 30, 2013, was available in the members’ meeting folders.


Page 2 of 14
Planning Board
Sept. 5, 2013

From Attorney Thomas Watson re: Dartmouth Brook stabilization

Chairman Foster read the letter and explained that CLP BW Development had to wait until they had everything done that the State required and were allowed to address the temporary conditions associated with the stabilization work. The orange construction limit fence, silt fence, hay bales, wooden stakes and netting from the silt sox, and scattering of straw on the site have all been removed. She said the Town process works somewhat faster than the State process.

A question as to the release of the bond on the stabilization was asked. Was the bond completely released or just partially. Chairman Foster said she will check on it.

From NH DES re Alteration of Terrain Permit (The Cottages at the Mount Washington Resort)

This is for informational purposes with no action required by the Planning Board. It will be posted on the bulletin board for public inspection. Chairman Foster asked, that Horizons Engineers be requested to keep the Planning Board informed as the Natural Retreats project progresses.

Report of Officers and Committees
Master Plan Sub-committee

A meeting of the Sub-committee was held previous to this Planning Board meeting. Mr. Mills said the future land use plan from before is being reviewed. He said the minutes will be posted.

Unfinished Business
Site Plan Review Regulations Update

Chairman Foster stated she wants a committee to review the updated document for accuracy and “flow”. Dr. Karpf and Mr. Hogan volunteered to work on this with the Secretary.





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Planning Board
Sept 5, 2013

Other Business (public comment)
Public Hearing continuation – CLP BW, LLC, Map 210 Lot 7, Relocation of stables to Mt. Washington Hotel Access Road near Bretton Arms leach field and administration building.

As a point of information, it was stated that at the previous meeting, the Board did not accept the application but continued the public hearing to this date. No one was present representing CLP regarding this project.

Upon advice from Town Counsel:

Dr. Karpf offered a motion to continue the consideration and public hearing regarding the CLP BW, LLC, Map 210 Lot 7, relocation of stables to the Mt. Washington Hotel Access Road near Bretton Arms leash field and administration building, to the October 3, 2013 Planning Board meeting. Ms. Moroney seconded the motion. The vote was 6 – 0. The motion carries.

It was asked that Horizons Engineering be contacted regarding this matter.

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.

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

Regarding issue of a bill

Chairman Foster said at the May meeting there was a request by the finance department to look into a bill from Horizons Engineering for the Hunt subdivision project that had not yet been paid by the applicant. Hunt Properties had appealed the bill. The applicant started work on Ruby Way (the subdivision road) before the cut across of Paquette Drive for the water line. After informing Hunt Properties that a bond was not complete for the road opening of Paquette Drive to bring water to Ruby Way, the subdivision road, the Chair at the time, had a notification sent of the incomplete bond paperwork, then sent a stop work letter to the applicant and then requested Horizons Engineering, the Town’s Engineer for this project, to inspect the work done. Mr. Scalley of Hunt Properties (the applicant) questioned the timing this third party review. The Board also had questions of the timing. At the May 2013 meeting, Erik Bergum recommended
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Planning Board
Sept 5, 2013


that the Board split the bill with the applicant and with “no blame” on either side. The bill would be split $235.75 each for the Planning Board and for Hunt Properties. Chairman Foster said, that issue evolved into something more.

Donna Foster offered a motion to bring the issue back to the floor, that the Planning Board accept the appeal from Hunt Properties LLC regarding the bill from Horizons Engineering in the amount of $471.50 for a third party inspection requested in the end of November 2012 and to be shared 50/50 with Hunt Properties paying $235.75 and the Planning Board paying $235.75 as the Board agrees the conditions of a waiver have been met under Site Plan Regulations #5.10. Ms. Moroney seconded the motion.

The Chair said there are two issues her:
1. The bill
2. Was the timing appropriate to ask for a third party inspection after issuing a stop work order.
Discussion; Mr. Mills had several questions as he had not been at the May meeting. He asked, did the Board have a special meeting for the stop work order? Chairman Foster stated the Board did not issue. That was done by the Chairman at the time, Dr. Karpf. The wording in the letter stated “on recommendation of Town Counsel” which was later brought to question. Chairman Foster also stated the conditions of approval mentioned Horizons Engineering’s review but never specified any further inspections as the work was done. Mr. Mills went on to say that the Board acts as a body and no member has the right to act on their own. Chairman Foster stated in the particular case (especially as it was a road bond) the authority and jurisdiction come under the Board of Selectmen. Mr. Mills said the trigger was the bond, then the stop work order and then the inspection after the work was stopped and not complete and would not pass inspection.

Chairman Foster said, in her opinion, the Planning Board over stepped its bounds with the stop work letter and the inspection. She said it is not clear if the payment is required by the applicant in this but it is required under the Regulations. Town Counsel, Attorney Jae Whitelaw said, where it was not perfectly clear regarding the responsibility of payment, the Board must look at the Regulations to see if the applicant is 100% responsible for payment of a third party review and determine if the Board would want to issue a waiver. If so, the Board needs to go through the requirements for a waiver.

Page 5 of 14
Planning Board
Sept 5, 2013


Chairman Foster read page 48 of the 1995 Sub-division Regulations (the Regulations in effect at the time of the approval)
“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 o the purpose of these regulations may be served to a greater extent by an alternate 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 not have the effect of nullifying the intent and purpose of these 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.”

The Board presented the following evidence as their consensus regarding waiver of the bill;
Regarding #1 granting will not be detrimental to the public safety, health or welfare etc.
Regarding #2 Ms. Moroney said argued that this situation is unique. Mr. Mills noted the appearance before the Board of another person requesting the Town pay half of his third party review. Mr. Mills said the facts are different. This is unique to the property.

Regarding #3 The consensus of the Board is the physical surroundings are not applicable to this situation,
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Planning Board
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Regarding #4 Ms. Moroney said this is “true”.

Chairman Foster asked if the Board has meet the waiver criteria and all members indicated that they agreed, the Board had met the criteria.

Chairman Foster then opened the discussion to the public.

Joan Karpf said she wanted a clarification that the burden of proof for a waiver lie
with the applicant who is requesting the waiver. She said she just heard the Board creating a waiver for their own Regulation.

David Scalley said on April 13, 2012 he got an illegal stop work order and the same day
Evan (Dr. Karpf the Chairman at the time) sent Horizons Engineering a request to inspect the work. He said he is contesting the entire bill and asking for a waiver. He said he went to the Selectboard to appeal and was sent back to the Planning Board.

Paul Bussiere, a Selectman, said the Selectboard sent Mr. Scalley back to the
Planning Board after Town Counsel said the Planning board could grant waivers.

Ms. Karpf said in the Regulations it states that the applicant should give the reasons
for the waivers to be granted not the Board give the reasons.

Mr. Hogan said in the initial meeting it was his understanding that Mr. Scalley was
protesting the entire bill and wasn’t addressing any waivers. He said nobody talked about any waivers at the time of the vote.

Attorney Whitelaw advised that the Board should review the waiver regulation to see if
this falls into the criteria. She said the Board doesn’t have to go through each criteria specifically. She said for the purposes of this matter the Board must pretend they never heard any of this before. Because of the suit the court sent this back to the Board and it (the Board) must start over again. Even if you said something before, you should say it again as if it was the first time. There was no notice to the public that this was going to be discussed in the previous meeting and that is why we are doing it again. The decision may be the same or different.


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Planning Board
Sept 5, 2013

Ms. Karpf said per the Regulations, the Board / Town hires a third party reviewer and
The applicant pays the fee. Chairman Foster said that was being discussed tonight.

Discussion took place as to whether the applicant was aware of his responsibility to pay
the third party review. Chairman Foster said the question was if the review was done in a proper fashion. Mr. Scalley said the issue was in a town where seven members vote on a Board but one member (the Chair) act on his own. Ms. Karpf said she felt that was irrelevant. Mr. Scalley said he does not th ink the town should be responsible for oe member’s decision to act on his own.

Chairman Foster then said she would now open the floor to discussion and they would have to wait.

Mr. Bussiere said for the bill matter, Hunt Properties should sue the Planning Board
And the person who acted totally illegally and with malice. He said this waiver is fair and should be granted.

Jim Covey asked what law says that the action of the former Chair is illegal. He said
its in the Regulations that there is third party review.

Attorney Whitelaw spoke of the enforcement authority and roles of officials and boards
as such and said only a person who is appointed by the Board to make decisions for the Board has a right to do so. If there is no appointee the Board decides. Her response to the Planning Board was still that they will need to vote on a waiver if that is the directions they wish to go.


Ms. Karpf read the Notice To All Persons Filing Applications For Subdivisions in
which the first paragraph states “ Major subdivisions require review fees for the Planning Board consultant expenses pursuant to section 3.11 of the Subdivision Regulations” and “ Consultant review fees shall include future consultant review expense to ensure that the subdivision has been completed in accordance with the approved subdivision plans.” It was signed February 11, 2011 by David Scalley. Ms. Karpf said the applicant didn’t notify the Town Engineer that he should inspect and the applicant didn’t have a bond in place, so the Chairman told the third party reviewer/Town engineer to inspect, but the applicant should have paid for the inspection either way. She said at the first meeting the Planning Board had with the applicant it was asked if they were familiar with the Subdivision Regulations. Per the
Page 8 of 14
Planning Board
Sept 5, 2013

minutes of March 3, 2011, Mr. Beaulieu of Headwater Hydrology (engineer for the applicant) with Mr. Scalley present, “he answered yes.” Later in the meeting the minutes reflect, “Erik Bergum made a motion to: have the town’s engineer review the subdivision at the applicant’s expense.”

Ms. Karpf said at the Planning Board meeting of April 7, 2011, the minutes state, “at
the last meeting, the Planning Board had asked that Provan & Lorber give a third party review on the subdivision.” And also “:After Dave Scalley talked to Provan & Lorber and Horizons he requested he be allowed to use Horizons as their quotes to do the review were almost half of what Provan & Lorber were charging.” And “Donna Foster made a motion to: rescind Provan & Lorber as the town’s engineers and to accept Horizons Engineering in the Hunt Subdivision . Erik Bergum seconded and the motion passed unanimously.” Ms. Karpf said the Town Engineer has been mentioned many times.

Chairman Foster said the Board is looking into the waivers. She asked how the Board was interpreting this, has the criteria been met. Town Counsel read the entire Regulation and told the Board that all the criteria must be met.

#1 Ms. Moroney said there is no reason that it would effect public safety. Mr. Mills asked if there was any evidence that the public had been effected. The consensus was – no.

Chairman Foster said #1 has been met.

#2 It was agreed by the members that the bill for the engineering that was appealed is unique to this property.

#3 Chairman Foster said, the Board is dealing with a bill and this does not apply as it doesn’t pertain to a bill.

#4 The Board agreed with Chairman Foster who stated that this onew item does not alter the Regulations, and doesn’t in any way change the rules or Regulations. Ms. Moroney said, it’s just a correction.




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Planning Board
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Chairman Foster asked each individual member if the conditions of criteria for this applicant has been met. All agreed that they had been met. She read from the Regulation,
“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 alternate 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 not have the effect of nullifying the intent and purpose of these regulations”

Chairman Foster offered a motion and moved that the Planning Board accept the appeal from Hunt Properties LLC in regard to the bill from Horizons Engineering in the amount of $471.50 for a third party review requested in the end of November 2012 and to be shared 50/50 with Hunt Properties paying $235.75 and the Planning Board paying $235.75 as the Board agrees the conditions of a waiver have been met under Site Plan Regulations #5.10. Ms. Moroney seconded the motion. The vote was 5 – 0. The motion carries

Dr. Karpf said there are no duties specified in the RSA’s for a chairman. According to
LGC, the chairman’s duties are to carry out the intent and votes of the Board. He said the Board had the opportunity to change the duties of the chairman or modify the chairman’s responsibilities but did not.

Mr. Scalley said at a Selectmen’s meeting he heard the Planning Board can’t issue a stop work order.

Attorney Whitelaw said, the issue is over.

Possible waiver of conditions and third party review

Attorney Whitelaw said the Board must decide if the applicant is required to have a third party review for construction of a road or subdivision. If they find that the Regulations don’t say third party review or engineer review, it must be stated clearly and specifically.

Discussion of the motion of May 2013 in which the Board amended the conditions of approval regarding the Hunt Properties subdivision regarding the third party review as a condition of approval took place without a public hearing and the required notifications. Chairman Foster said the condition for a third party review is not clear and the Regulations are
Page 10 of 14
Planning Board
Sept 5, 2014


not clear. Chairman Foster asked Mr. Scalley what he was looking for. Mr. Scalley said he is meeting all the requirements and wants to continue his subdivision.

A member of the audience said he supports the regulations and in his opinion the Town needs a Town Engineer.

Discussion continued as to whether the Regulations require a third party review and if so whether the description of the reviewer’s and applicant’s responsibilities regarding the inspections are clear. Chairman Foster said the motion was made in a meeting and not a public hearing and that is why the Board is having a public hearing tonight.

The motion of the May 2, 2013 minutes regarding this matter were read; “Mr. Nelson offered a motion to change the conditions of the Hunt Properties Sub-division to delete the third party review condition, have each party (Town and Hunt Properties) pay one half of the Horizons Engineering bill, have the applicant’s engineer, Headwaters Hydrology, submit monthly inspection reports to the Planning Board, and have the Highway Department, Water Department and Code Enforcement Officers sign off on the project. Mr. Hogan seconded the motion.

Discussion – Mr. Mills said it’s important to follow the rules and he is not certain that this motion will put the issue to bed. He said the Board should be careful and deliberate and make sure. He said he wants it to be clearer. He said he wants more information.

The vote was 5 –2 (Mr. Bergum and Dr. Karpf opposed). The motion carries.”

Chairman Foster said in her opinion a third party review is not specifically mentioned in our Regulations as being required. What is mentioned is “Town Engineer. Attorney Whitelaw said if the Regulations are fuzzy the Board must rely on historical information. She asked, historically, has the Board required a third party review on all subdivisions? If so, the Board must continue to do so. If the Board wants to change it. Until the Board makes a decisions under the current (Sub-division) Regulations of the requirement, the Board cannot address the issue with the applicant. Attorney Whitelaw went on to saythat regulations can sit for years and never have a problem with interpretations, then one day something comes along and there is a problem. She said, the Board is doing due diligence in looking into the matter and making decisions. Her recommendation is to:
1. Find out if the regulations are fuzzy
Page 11 of 14
Planning Board
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2. Then table the issue and look into how historical regulations were enforced. .

The question was asked, does the Town have a Town Engineer. Ms. Moroney said yes. They have a contract with Provan & Lorber for Town Engineering work.

Ms. Karpf read the minutes of April 7, 2011, in which Donna Foster made a motion to change the Town’s Engineers from Provan & Lorber to Horizon’s Engineering in the Hunt subdivision project.

The question remained, does the Regulation require a third party review. Mr. Mills said, he is not an engineer and he relies on the third party reviewer to be sure the Regulations are followed but agrees if the Regulations are fuzzy the Board should go to historical information. It was stated by a member of the public that he wants somebody from the Town looking out to protect the townspeople. A number of people in the audience gave examples of subdivisions in which the Town Engineer made inspections, i.e. Dartmouth Brook, Brian’s Way, Mylan Way, The Cottages. Dr. Karpf said the purpose of the third party review is to protect the Town because secondary roads are important and even if initially are private, they may become Town roads and subject to maintenance and repair with taxpayer money. Mr. Covey said there is no ambiguity. Chairman Foster said, it’s all a matter of interpretation.

Ms. Karpf noted that Chairman Foster had been on the Planning Board for seven (7) years and this has never come up before Mr. Scalley came before the Board.

Mr. Scalley was asked how much of the subdivision road had been constructed. He said 150 ft of road – gravel and base, 40 ft of hot top and 61 ft of waterline.

Attorney Whitelaw said Section 503 Performance and Inspection of Work: explains the applicant’s responsibility and criteria to meet. Chairman Foster read Section 503 a and b;

“a) All work necessary for the construction of required improvements shall conform to the requirements of these regulations. Such work shall be performed in a good and workmanlike manner, and shall be free from faults and defects. All materials incorporated in such construction shall conform to the requirements of these regulations and shall be of good quality.



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Planning Board
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Any work or materials not conforming to the foregoing standards may be considered defective and rejected by the Engineer. All work and materials rejected by the Engineer as defective shall be removed and corrected by the subdivider.

b) The Engineer will be the Town’s representative during the construction of required improvements. He shall at all times have access to the site when the work is in preparation and progress. He will make periodic visits to the site to familiarize himself generally with the progress and quality of the work and to determine in general if the work is proceeding in accordance with the requirements of these regulations. The sudivider shall provide the Engineer in advance with a schedule of work to be performed outside of the Engineer’s normal office hours and give the Engineer timely notice of the completion of each major stage in the construction of any required improvements so that the Engineer may inspect the work so completed prior to the covering therof, and the Engineer shall make all such inspections with reasonable promptness so as to cause no delay in the work. In particular, the subdivider shall, in the case of streets, give timely notice to the Engineer of the completion of subgrades, drainage base course, and base and final surfacing.”

After Mr. Mills and Mr. Hogan had reviewed the subsequent sections of 503, c, d and e they and Mr. Nelson agreed that the Regulation was clear. They said, in the requirements the Regulation states the Town Engineer be required to inspect work done.

Mr. Mills offered a motion that Section 503 as written be accepted by the Board as requiring third party review through the Town Engineer and in all subdivision applications the applicant is required to pay all fees pursuant to section 419 of these Regulations. Mr. Hogan seconded the motion. The vote was 4 – 0 – 1 (Mr. Nelson abstained). The motion carries.

Mr. Scalley said he will send a letter of application for a waiver.

Ms. Moroney offered a motion to continue the public hearing regarding Hunt Properties in regard to third party review to October 3, 2013. Mr. Mills seconded the motion. The vote was 5 – 0. The motion carries

Attorney Whitelaw left the meeting.

Dr. Karpf rejoined the Board.
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Discussion of extending the Alpine Club “tent” building permit – Steve Hilliard and Chris Ellms

Mr. Ellms said the tent building was given extensions in 2007 and 2010 and the current extension will expire on September 15th. He said the Fire Chief has done his annual inspection. In response to questions, he said there are no plans right now for a permanent structure as was the original plan due to the economic downturn. He said the building was designed to last 40 years without problems.

Mr. Hilliard said they do intend eventually to building a permanent structure but not on the present site of the tent. He said the tent is not meant to be permanent. He said, if it was to be permanent, they would be required to come to the Planning Board anyway.

Dr. Karpf gave the history of this project.

Mr. Ellms and Mr. Hilliard were told they would need a public hearing with the required notifications being sent and published. The deadline for submitting an application to the Secretary is September 12th for the October meeting. The Secretary gave them a Site Plan Review application, with instructions to use the appropriate sections and to contact her when they a ready.

Planning Board Budget Request for 2014

Chairman Foster asked that she and Mr. Hogan be allowed to work on the 2014 budget .

Mr. Mills offered a motion that the Planning Board allow Donna Foster and Michael Hogan to work on and present the Planning Board’s 2014 budget request. Mr. Hogan seconded the motion. The vote was 6 – 0. The motion carries.

Mr. Mills offered a motion to adjourn. Mr. Hogan seconded the motion.

Discussion; Ms. Karpf said she feels the Board is making decisions while not understanding their own regulations and as a result the taxpayers had to sit and explain the Sub-division Regulations to them. She said she has more to discuss under “Other.”


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Mr. Nelson left.

Chairman Foster said the meeting is over. Ms. Karpf asked if she was being shut down. Chairman Foster apologized and said, its late.

The vote was 5 – 0. The motion carries.

10:08 PM Chairman Foster adjourned the meeting.

Respectfully submitted
Linda J. Dowling
Secretary
Carroll Planning Board