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Minutes of 1/7/2021

January 13th, 2021

Carroll Planning Board
Meeting Minutes
January 7, 2021
7:00 PM

“These minutes of the Town of Carroll Planning Board have been recorded by its Secretary. Though believed to be accurate and correct they are subject to additions, deletions, and corrections by the Planning Board at its next meeting when the Board votes its final approval of the minutes. They are being made available at this time to conform to the requirements of New Hampshire RSA 91-A:2.”

Due to COVID-19/Coronavirus crisis and in accordance with Governor Sununu’s Emergency Order #12 pursuant to Executive Order 2020-04, The Town of Carroll Boards are authorized to meet electronically. The Board will be conducting meetings through the Zoom app.

Planning Board Members Present: Chairperson Alex Foti, Vice Chairperson Mike Finn, Selectperson’s Representative David Scalley, Terry Penner, Donna Foster, Julie Roesbery, Brian Mycko and Mike Hogan

Public Present: Imre Szauter, Andy Smith, Karen Moran, ‘MIke’s Plage’

Minutes Taken by: Heather Brown, Secretary

ITEM1: The meeting was called to order by Chairperson Foti at 7:01 p.m.

Chairperson Foti stated the reason for the remote meeting was due to the Town Hall being closed because of Covid and asked all participating members to state their name and remote location and if anyone was present at their remote location. All members stated their remote location and confirmed no one was in the room with them.

ITEM 4: Stapleton – Letter
A letter was received from Jeanne Stapleton on 12/23/2020, addressed to the Planning Board and circulated to the board members. Chairperson Foti stated this is not a matter for the Planning Board to handle and has referred the letter to the Select Board/Enforcement. Selectperson’s Rep Scalley stated that he is currently in contact with Kevin Fadden from ITW and Heather in office regarding this.

ITEM2: Pledge of Allegiance

ITEM 3: Approval of Minutes
Chairperson Foti asked if there were any edits or comments on the Planning Board meeting minutes of December 3, 2020. Chairperson Foti made a motion to approve the minutes from December 3, 2020 as written. Vice Chairperson Finn seconded the motion. ROLL CALL VOTE: Foster-YES, Scalley-YES, Finn-YES, Mycko-YES, Roesbery-YES, Hogan-ABSTAINED, Penner-YES, Foti-YES. Motion carries, minutes are approved (7-YES, 0-NO, 1-ABSTAINED).

ITEM 5: Sub-Division Application: Andrew Smith – Route 3 North, annexed lot – GOULD; Map/Lot: 416-023-000-000. Application is to request to add this lot to the Ledgewood Sub-Division and allow access to this lot off a driveway that already serves two homes. The lot will carry all the Ledgewood covenants and become a member of the HOA. No further sub-division will be allowed. This lot has no other access.

Chairperson Foti stated that the application was accepted at the last meeting to request adding another lot to the Ledgewood Subdivision, map/lot 416-023-000-000.

Terry Penner wanted to point out that he may have a potential conflict of interest with the application, he is an employee for Peabody and Smith, and Andy Smith is the Principal Broker, however he (Penner) has no affiliation with Ledgewood or development with Mr. Gould. He will recuse himself from any further involvement if anyone feels he should.

Chairperson Foti referenced RSA 673:14 and requested a vote to determine if any thinks Penner should be disqualified.

David Scalley asked Andy Smith if he was here representing Dick Gould as Andy Smith or as Peabody and Smith.

Andy Smith confirmed as Peabody and Smith Realty for Richard Gould, and also stated they have no objections to Mr. Penner sitting on the board tonight.
David Scalley made a motion to make a vote on Terry Penner where he works for Peabody and Smith where Andy is serving as the agent at Peabody and Smith. Chairperson Foti seconds the motion. Scalley clarified and said he was “asking if any board member would like to make a motion”.

Donna Foster made a motion to accept Terry Penner to represent the Planning Board, we do not feel there is a strong conflict of interest. Brian Mycko seconds. ROLL CALL VOTE: Foster-YES, Finn-YES, Roesbery-YES, Mycko-YES, Foti-YES. Chairperson Foti announced that the board will continue as planned.

Chairperson Foti opened the discussion.

Andy Smith reviewed the application and specifics. The lot in question is 23, referencing as “C12”. Process that they’ve been advised to go through is to go through is to bring the initial Ledgewood Subdivision Plan which was approved in 2004 and add this lot to it with lot 11.06 and 11.11 already having homes on them with one driveway. Andy reviewed the existing driveway which serves lower lot and upper lot now, the homes are both under construction now. It’s a gravel driveway that has been modified per the town’s request to reduce the grade and widen the radius—worked with Chief Oleson to make sure he could get emergency equipment up and allow for those homes to be built.

Andy Smith is requesting the lot be allowed to build a house off that one driveway. This lot would also be brought into the Ledgewood subdivision covenants, to include no other subdivision clause. The lot is 106 acres, and would be subject to the no further subdivision clause, as well as being part of the Ledgewood Homeowners Association, which maintains Ledgewood Drive, Beechwood Drive, takes care of the plowing and sanding, privately maintained road both to Bethlehem and Carroll Ledgewood Subdivision.
Andy Smith reiterated that in speaking with Chief Oleson, the Chief felt that he would feel more comfortable if it was paved. Since the two homes there are already under construction, they don’t have that condition, it’s tough to impose that at this point, but more than willing to add a conditional restriction, prior to issuing a building permit to this new lot— the common driveway either be paved or accommodations subject to the Selectmen or Planning Board be made. That the driveway had either already been paved or suitable arrangements are made at the town that it will be paved after construction. This a condition that they are more than happy to oblige to at the town’s wishes.
David Scalley asked Andy Smith: are you planning on going to the zoning board for the three homes off one driveway?

Andy Smith: originally, they were going to file a variance, however there is no zoning article stating that you can’t have more than two homes off one driveway.

David Scalley pointed out the definition of a driveway in the subdivision regulations and that a driveway cannot serve not more than two (2) lots or sites. Scalley suggested that this would need to go to the Zoning Board to allow for the third lot to be added.
Andy Smith: it’s not an article in the ordinance, the only place it shows is in the definition and that they’ve been through this process with the Planning Board and Zoning Board chairs both agreeing that this is the correct process and there is no variance to apply for. Come to you for a subdivision plan and asking for it to be approved as a waiver.

Scalley referenced a previous applicant’s similar hardship because the state would not let him have a curb cut and the Zoning Board gave him the waiver for the hardship, so it has been across the Zoning Board.
Andy Smith: I can’t speak to that, but we’ve asked for advice and counsel on this over the last 18 months on what the process is and this is what we were advised to do. Go back to the Planning Board and apply for a new subdivision showing this, so the Planning Board can approve the subdivision with this provision, shared driveway serves these three lots and all three lots have the no further subdivision covenant.

Terry Penner: are easements in place over the two existing parcels that are part of Ledgewood, allowing easements to access that property, or is that something that needs to be done on their deeds to allow this to happen?

Andy Smith confirmed there is an easement on both the lower and upper lot for this driveway as built to access and a shared driveway agreement.

Mike Finn asked Andy Smith: does this present a hardship to you to ask for a waiver and go through the zoning board to take care of this?

Andy Smith: from a timing standpoint there is, we intended to go to the Zoning Board, but in consultation with the Chairmen (Planning and Zoning) and Mr. Scalley, we all agreed there was nothing, no variance. This is what we were requested to do. We went back to the surveyor, asked him to do a new plan, done with our best efforts to do what the town would like, met with the Fire Chief and Police Chief, were coming with a plan as requested that shows this and believes the Planning Board does have the right to approve this subdivision plan as presented.

Chairperson Foti: speaking to this from my perspective, while looking at the definition of a variance, and a variance needs to be specifically a zoning ordinance. And from what he sees there is no zoning ordinance, just a definition. This is an unusual circumstance; whose job is it to approve what’s outside of the zoning ordinance. Since this is pertaining to this plan, it’s up to the Planning Board to decide and agree that it is within the spirit of what we’re trying to do and does not see an issue of moving forward.

Terry Penner asked Chairperson Foti: is this just a modification to an existing subdivision?

Andy Smith confirmed that it was the intent, but the request that was made, was to have them come back with a new subdivision. Chairperson Foti stated that it would subject to the same covenants, which seems to be in the best interest of the town overall.

Mike Finn is unsure what the reservation is.

Andy Smith: the lot is landlocked and there is no way to get to it. Think it’s in the best interest of the town to take this landlocked parcel and add it. Very well designed and beneficial subdivision to the Town of Carroll. It’s been a wonderful addition to the town and appreciate the support to add one more lot to the covenants that there is no other subdivision. Take a landlocked timber piece and make a very nice building site out of it and add it to what has been a very successful subdivision for the town. We would appreciate the support to move forward, it’s something we struggled with to comply with the town. It’s not clear, I sit on the Zoning Board, I sat down a couple of times and tried to apply for a variance and couldn’t figure out how to do it. I talked to various people in the town and general consensus was to do a new subdivision.

Mike Hogan stated this is a subdivision regulation not an ordinance. Two lots can be on one driveway. The regulation is what we are addressing and agrees with Dave (Scalley) that you need to go to the Zoning Board and add because of the hardship of this being a landlocked piece of property, you need to get a waiver.

Dave Scalley to Andy Smith: we extended that road and put a hammerhead in because the lot below it already had a driveway going on it and we didn’t want you to have three lots being served by one driveway. That’s why the hammerhead went in and took the lower lot driveway off the existing driveway and put it on the road. –Andy Smith confirmed this was correct.

Dave Scalley to Andy Smith: And we did this through the Planning Board because the lot to the left, they’re building a house on it now, got issued a hardship because they couldn’t come up the right-of-way because it was too steep and too wet. That’s why we had to grant you the second driveway up top to the left-hand side because he couldn’t come up off the road where he was supposed to, the long bowling alley section, correct?

Andy Smith: When we extended the road there was not any need for a waiver or allowance because the definition, there was only two lots off the one driveway. You’re right we didn’t. We extended the road so the lower lot did come off a town approved road.

David Scalley: So in the 2004 subdivision approval, those bottom two lots were being served by one driveway and because of the third driveway up top we couldn’t get a driveway in the condition where it was in the original subdivision approval, that why we put the hammerhead in and extended the road to be part of the road, then that lower driveway would be removed so those two lots could be served by one driveway. Now if you do this again for a landlocked lot that was purchased and you want to put a third driveway on there. We already negotiated a deal last year or the year before to put the hammerhead in so there was only two lots being served by one driveway. I do agree with Mike (Hogan), it has to come to the Zoning Board. We’ve already set precedent, we’ve done it with Longview, Woodland Acres and Ben Jellison’s lot, not even six months ago, approving a third house lot on a single driveway. And when you come to the Zoning Board that driveway is going to have meet a certain criterion to meet the hardship to have that third lot off there.
Discussion regarding subdivision regulation, zoning ordinance and definition of a driveway within the subdivision regulations and waivers.

Discussion between David Scalley, Chairperson Foti and Andy Smith regarding the definition of a driveway in subdivision regulations. Question-Planning Board granting waivers to definitions. Question-hardship or a waiver goes to the Zoning Board, not Planning Board. Setting a precedent in the town.

Discussion between Andy Smith and David Scalley regarding that there is nothing in the subdivision regulation saying that a driveway can not serve more than two lots vs. the definition of a driveway, as serving 2 lots. Question-Planning Board granting waivers.

Discussion between David Scalley, Chairperson Foti and Andy Smith regarding the function of the Planning Board and Zoning Board. Question-Authority of a Planning Board to wave any definition (i.e., engineer, easement, flood, etc.). Question-Zoning Board has no authority to do anything on a subdivision regulation because it’s not a Zoning Board document. Question—if the Planning Board can give its own waiver? Chairperson Foti referenced page 19 of subdivision requirements regarding a waiver being granted by the Planning Board.

Mike Hogan asked Andy Smith why the road could not be extended. Andy Smith explained— The road goes all the way up through the vonWallenstein lot, which was already sold and it’s a right-of-way driveway. He doesn’t want a town road or an approved road going through his lot. Don’t have the authority extend it to make it a public way and there’s no need to. It’s a driveway, rather than a town road.

Chairperson Foti expressed that there are two separate issues, the merit of the waiver and the application itself, as well as the logistics that the waiver must be in writing. He suggested, since we are under special circumstances, see if we can do this off line and see if we can vote on it and do the paperwork necessary for it.

David Scalley to Chairperson Foti: as the Select Board Representative, I would like you to table this until we get legal definition of this and make sure we are covered and as the Select Board Representative, I am here to protect the town from things Planning and Zoning have done in the past that were mistakes. I disagree, not that the Zoning Board to say yes or no, disagree if the Planning Board makes a motion and a vote on this because I feel we should have town legal chime in. We set a precedent, we have it in the regulations, the definition of a driveway, I don’t believe the Planning Board has the authority to put a waiver on it.

David Scalley questioned waiving a definition.
Chairperson Foti referenced page 19 or RSA 674. The Planning Board gives the authority to grant waivers to its own documents.

Chairperson Foti motion to approve this plan with the conditions mentioned before, that it be paved or a bond be put in place prior to occupancy being granted and with a written waiver be presented by the applicant within the next seven (7) days. Julie Roesbery seconds.

David Scalley: Discussion. Alex can you please read page 1, section 2, definitions, 1st paragraph.

Chairperson Foti read the requested paragraph: “For the purposes of these regulations, certain terms used herein are defined as follows. Terms not defined below but defined in the Town of Carroll Zoning Ordinance shall be interpreted in a manner consistent with that document”.

Discussion between David Scalley and Chairperson Foti regarding how it is interpreted.

Donna Foster requested to read something she found on the internet from NH.gov “When should a Planning Board grant a waiver on its regulations?—Waivers are normally authorized in Planning Board subdivision regulations and are specifically required for site plan review regulations (see RSA 674:44,III-e). Waivers should be granted in cases where, in the opinion of the Board, compliance with the regulations would place an unnecessary burden on the applicant. It is also recommended that waiver clauses identify the specific criteria under which a waiver will be granted. This should make the decision process more defined for planning boards”.

Donna Foster: If there’s a hardship we can give a waiver, in this instance, where are they going to put a driveway? If it’s specifically why we are giving a hardship, the next person has to have a hardship in order to get the same waiver.

ROLL CALL VOTE on motion: Scalley-NO, because I would like to get legal advice, Finn-YES, Hogan-YES, Foster-YES, Mycko-YES, Roesbery-YES, Foti-YES, Penner-ABSTAINED. Motion passed (1-NO, 5-YES, 1-ABSTAINED).

Donna suggested creating an ordinance at some point, regarding the number of driveways.

Mike Hogan asked if there are any other waivers on this site plan?

Dave Scalley asked if the driveway meets the proper percentages of the driveway regulations?

Chairperson Foti: I believe we discussed that at the last meeting and everything was yes. The Fire Chief desired that it be paved, which we have put in as a condition.

ITEM 6: Letter of Approval – RAJ, LLC (Scalley)
Dave Scalley suggested amending the Notice of Decision for Foster’s Crossroads that was approved last month. The notice states specifically “Dunkin Donuts”. Scalley would like to suggest changing “Dunkin Donuts” to “food service” to the Notice of Decision to allow for another food service in the event Dunkin’ Donuts does not go into the space, give the owner and business more options. Discussion amongst board members—from the previous meetings, the question was asked if Dunkin’ Donuts did not go in, was there another plan? The applicant had stated that he would just extend his retail space. The applicant would need to come back for an amendment if another vendor or food service wanted to go in there. Board agreed to leave the Notice of Decision as is, with no changes.

ITEM 7: Other: Reminder—Members up for renewal
Chairperson Foti reported that there are members up for renewal/positions available on the Planning Board. There are 2 positions available for 3 years and 1 position for 1 year. It was announced that if members or anyone interested wanted to sign up for any of the available positions the dates to do so are January 20th-29th, 2021. Contact Becki (Town Clerk) at the Town Hall.

ITEM7: Other: Recording at Registry of Deeds
The secretary reported to the board that we need to be recording the Notice of Decision at the Coos County Registry of Deeds, if there is not a mylar provided. The only Notices of Decision that need to be recorded at the registry are Approved and Approved with Conditions. Notices of Denial do not need to be recorded.
The Secretary explained that it would be difficult to let the applicant know beforehand the cost to the registry, because of the unknown number of pages of the notice. Chairperson Foti would like to work with the secretary on this and updating the application forms.

Other: Terry Penner on behalf of the Resort Waste Services Board at Bretton Woods. Discussions regarding ideas for enforcement/verifying applicant has paid the connection fee for sewer to Resort Waste Services prior to the building permit or certificate of occupancy for new projects. Chairperson Foti stated that this is not a Planning Board matter.

Mike Hogan made a motion to adjourn the meeting. Brian Mycko seconded the motion. All in favor. Motion carries. Meeting adjourned at 8:23 p.m.