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Minutes of 3/4/2021

March 11th, 2021

Town of Carroll Planning Board
Meeting Minutes
March 4, 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, Julie Roesbery, Donna Foster, Brian Mycko and Terry Penner

Public Present: Imre Szauter, Robert Gauthier

Minutes Taken by: Heather Brown, Secretary

ITEM 1: The meeting was called to order by Chairperson Foti at 7:00 p.m.

Chairperson Foti stated this is March 4th, 2021, this is the meeting of the Town of Carroll Planning Board and pursuant to Executive Order 2020-04, we are conducting this meeting electronically because of the on-going Covid outbreak and to ensure the safety of all participants. He then asked all participating members to state their name and remote location and if anyone was present at their remote location.

Foti – at home, in room alone; husband and kids two in house, two floors away
Foster – at home, husband is about to leave the room and go to the other end of the house
Penner – at his home in Meredith; Michele is within earshot
Scalley – at his office where he lives, alone
Roesbery – at home, alone
Finn – at home, alone
Mycko – at home, alone

ITEM 2: Pledge of Allegiance

ITEM 3: Approval of February 4, 2021 Minutes

Julie Roesbery expressed that she was very disappointed with what transpired at the last Planning Board meeting and felt that the minutes did not reflect what happened. She went on to explain that she was told that the minutes were a combination of the meeting and the meeting before. She reiterated that she wished that somebody had been clearer about what was transpiring because she was very puzzled about what was going on and that someone be more inclusive of the group, noting that all of the members are elected positions and she feels the Board should have the right to understand what is being talked about, referencing David Scalley. Julie stated that David Scalley said “we’re taking it back and I’m taking Heather”, and she felt that it was really kind of blunt.

Chairperson Foti interjected and reminded the Board and Julie that procedurally he wants to separate the contents of the discussion from the minutes.

Julie Roesbery reiterated that she felt that the minutes didn’t reflect anything about the meeting.

Chairperson Foti reminded the Board that this is the opportunity to amend them and to add what it is that they think they would like to see added.

Julie Roesbery stated that it was a twenty-minute meeting and the Board did not have much to discuss, but then Dave made an announcement that didn’t make any sense to her, and she felt that it seemed like a few other people were also kind of taken back too. She felt that the meeting should have been shorter. She stated that someone clarified to her what took place, after the meeting. She also pointed out that the Land Use Secretary was nice enough to explain what took place in reference to the minutes and made it make sense, but at the time of the she felt it didn’t make sense during the meeting.

Chairperson Foti confirmed that Julie Roesbery’s concern is really more about the meeting itself than the minutes.

Julie Roesbery expressed that she felt the minutes didn’t really reflect what took place at the meeting because the meeting was short.

Chairperson Foti stated that he read the minutes and felt that they did reflect what happened at the meeting, also noting that the secretary cannot write down every little comment. Chairperson Foti felt that the spirit of the conversation was reflected in the minutes.

Chairperson Foti did point out one paragraph that he was not entirely sure of its meaning and wanted some clarification, it appeared after the bolded part on page 3—David Scalley responded that it would have to be discussed with legal or he could come to the Select Board and direct that question. That’s not a Planning Board question to be answered by the Select Board.

Chairperson Foti was not entirely sure what that sentence meant and felt that some clarification might be warranted.

Julie Roesbery stated that she thought that actually did take place in minutes.

Chairperson Foti read the sentence again: David Scalley responded that it would have to be discussed with legal or he could come to the Select Board and direct that question. That’s not a Planning Board question to be answered by the Select Board. Chairperson Foti questioned what it means to not be a Planning Board question to be answered by the Select Board.

Julie Roesbery reiterated that the line that was just read was at the meeting. She went on to ask “when you say we need to approve the minutes, I know it’s not a court stenographer’s note, but it should reflect what the meeting was. And actually that line you just said was our meeting, really.”

Brian Mycko stated that the meeting minutes did not have him listed as present at the meeting. It was determined that he was at the meeting and listed, however he was not included in the call to order, item 1. It should be noted that he was at home and alone.

Donna Foster announced that she did not think that she got the February 4th minutes. Chairperson Foti forwarded them her via email during the conversation so she could review upon receiving them.

David Scalley asked Chairperson Foti if he could speak.

Scalley made a statement to the Board that Rob Gauthier was at the meeting as the public, and noted that they are not a Select Board quorum.

Chairperson Foti acknowledged and understood what David Scalley said. For the next few minutes, the Board waited while Donna Foster waited to receive the February 4th meeting minutes. Brian Mycko confirmed that the minutes were sent to the Board on February 9th.

Terry Penner asked Chairperson Foti if these minutes are being recorded so that the Land Use secretary can go back and review them for the minutes, as he sees no indication that the meeting is being recorded. Chairperson Foti directed the question back to the secretary to answer.

The Land Use Secretary explained that she has a recorder on the desk recording the meeting for note purposes and once minutes are approved, they would get deleted. It was confirmed that the secretary was not using Zoom to record the audio or video of the meeting.

Donna Foster confirmed that she received the minutes from Chairperson Foti and was given a couple of minutes to review.

David Scalley asked Chairperson Foti if he could speak. Chairperson Foti confirmed he could.

David Scalley: I think the question that’s being asked is, and correct me if I am wrong Ms. Roesbery, Vice Chairman Finn requested feedback on the reasoning as to why the Select Board made a decision to override the Planning Board. Is that the question?

Julie Roesbery stated that’s what the minutes said, but that’s not what took place during the meeting.

David Scalley: Mike Finn did ask me at the meeting, he wanted a reasoning why, if the Planning Board made a mistake, that they get an answer what mistake they made so they could learn from it going forward. Is what I paraphrased what you said Mr. Finn, is that correct?

Michael Finn confirmed that was correct.

David Scalley: My answer was, I responded that that would have to be discussed with legal and/or the Select Board and that was my position as the Planning Board Select Board Representative to speak for the Board. That’s why you would need to go to the Board to discuss that. Pretty much the reasoning behind the Select Board’s decision is we feel that the Planning Board made a mistake.

Julie Roesbery stated that she felt that was interesting and then stated “So, I approve the minutes then, I guess.”

Chairperson Foti: My comment, maybe others don’t feel the same way. The last sentence— That’s not a Planning Board ... I agree with everything you said, Dave, I think it reflects the discussion of the meeting. I just don’t know what this sentence means— That’s not a Planning Board question to be answered by the Select Board. Because the sentence before, it says that the question should asked to the Select Board. So, for that to be followed by it’s not a question to be answered by the Select Board it seems contradictory. I was a little confused by that sentence, that’s all.

David Scalley explained that it might have come out wrong, but assured the Board that they could go to the Select Board and request a reasoning for it, and continued to explain that the Select Board chose to do what they did to appeal the decision because the Select Board felt that the Planning Board made a mistake in what they did.

Chairperson Foti would like to make a motion to strike out the sentence to clarify, and it would be clearer without that sentence in there—David Scalley responded that it would have to be discussed with legal or he could come to the Select Board and direct that question. That’s not a Planning Board question to be answered by the Select Board.

Vice Chairperson Finn asked Chairperson Foti to confirm where the sentence appeared in the minutes. Chairperson Foti referred him to the area of the minutes.

David Scalley: Alex, I think it was supposed to say is that it wasn’t supposed to be answered by a Select Board Representative for the Planning Board. It has to be answered by a Board, not by one.

Chairperson Foti: Dave, since you said that, do you want to just clarify the language that should be in there?

David Scalley made a motion to amend the last sentence to read— That’s not a Planning Board question to be answered by the Select Board Representative, you would need to come to the Select Board. Chairperson Foti seconded. Julie Roesbery also seconded and agreed. All in favor of amending the sentence, no opposed. Terry Penner abstained because he was not at the last meeting.

Chairperson Foti asked if there were any other comments or amendments to the minutes. Vice Chairperson Finn reminded the Board that they needed to put Brian Mycko’s name in the call to order, item 1, listing him as at home and alone. Chairperson Foti acknowledged.

Donna Foster made a motion to approve the minutes as amended. Brian Mycko second. All in favor, no opposed. Terry Penner abstained because he was not at the last meeting. The minutes are approved as amended.

ITEM 4: Driveway Regulations

Chairperson Foti explained that he asked to have this item on the agenda because he believes this is the second or third time the question of a driveway regulation has come up since he has been on this Board in once capacity or another and as they have discussed in this latest instance.

Chairperson Foti stated that it is nowhere in our ordinances and all that we have in our documentation is a definition on page 2 of the Subdivision Regulations—
Driveway: An area located on a lot, tract or parcel of land, and built for access to a garage or off-street parking space, serving not more than two (2) lots or sites.

Chairperson Foti asked the Board a general question suggesting if they needed to start thinking about including driveways somewhere in the ordinance or if there is a reason why this should only sit in this small section in the Subdivision Regulations to be referred to?

David Scalley stated that they do have driveway regulations that were amended May 8, 2018 in the 3-ring binders that were put together, explaining what a driveway needs to be and where it comes off the road at a 90-degree angle with 15 degrees either way.

Chairperson Foti stated that it does not mention two houses at all.

David Scalley corrected and stated “two lots”. Chairperson Foti agreed, “two lots”.

David Scalley stated that it explains what a driveway is and what it needs to be and how it needs to be installed correctly with distances and slopes and grades.

Alex Foti stated that it’s more of a technical document about how a driveway should be built.

Terry Penner asked if it only applies to where it intersects with town roads? He went on to note that it does not have any mention of private roads.

Chairperson Foti explained that the Board always ends up in November starting to think about what the Board needs to amend in the zoning ordinance and then the Board doesn’t have enough time to make any substansive discussion and get it included.

Donna Foster reminded the Board that there was no time this year to change them.

Chairperson Foti explained that there is no time as good as the present, in thinking about next year, stating that if this is something the Board wants to add to the zoning ordinance, this is the time to start thinking about it.

Vice Chairperson Finn expressed to the Board that from his standpoint he had trouble finding where it talks about the fact that you cannot have two driveways off one road. He further explained that he cannot find anywhere, where it really gives that definition as an ordinance. Finn also agreed with Chairperson Foti to get it defined as an ordinance and exactly what that means, in terms of a driveway. Finn also brought up and agreed with Terry Penner’s comments in referencing that it talks about driveways, but it’s always coming off a state road, it doesn’t talk about private roads. Finn feels the Board needs a clear definition and if they want to go that route, saying you can’t have more than two driveways.

David Scalley asked Chairperson Foti to speak.

David Scalley: Mike, on the Town of Carroll Subdivision Regulations, page 2, shows the definition of a driveway and then also shows on page 3, the definition of a private road. So, our regulations do include both private and public roads where the driveway should and shouldn’t come off and how they should and shouldn’t come off the road. Even if it’s a private road it still needs to meet the requirements for life safety purposes, so we can get our apparatuses there. We can’t approve a private subdivision with a driveway serving thirty house lots and the slope at twenty percent. That’s why the regulations are here.

Terry Penner stated that he disagrees with Scalley, because it states, specifically in the driveway regulations that it’s only with Town roads, it does not deal with private roads at all. Further stating that if the Board need to change that’s, that’s fine. Penner expressed that in regards to the Select Board overruling what the Planning Board did, he does not agree and according to he’s read and what the Board has looked at, it is within the Board’s purview in a modification of a subdivision to grant a waiver, which is what he believes the Board did in this case and then stated that the Board granted a waiver for those specific restrictions on having three parcels served off the same driveway.

Chairperson Foti reminded the Board that he was not trying to discuss the merits of the appeal.

Terry Penner stated that the decisions the Board made as a Planning Board were based on existing regulations.

Chairperson Foti stated that the Zoning Board agreed unanimously with their decision and he thinks they can put it to rest for now.

Chairperson Foti: What I was trying to do here, is just ask, is this an opportunity to clarify this, as David said, correct, it is in our subdivision regulations, it’s nowhere in our zoning ordinance. We have required areas, corner lots, requirements for parking, outdoor lighting, all of that in the zoning ordinance. There is nothing about driveways. So, my questions is, is this the time to add something about driveways into the zoning ordinance, or maybe is there a specific reason that I am not privy to, why the driveway requirements, so to speak, should stay out of the zoning ordinance?

Terry Penner: My question on the whole subject here is, what was the objection here? I mean, we made a very pointed, specific, separate waiver for this particular property. Where right-of-ways were already in place, the abutters or the immediate other impacted parcels agreed that they had no problems with it, they granted easements to access it and my understanding is, we were in our purview to grant a waiver for this specific situation. I don’t think it sets a precedent for anything further down the road, unless we came up with the same kind of situation, where it was easements were in place, etc., etc., whatever the other circumstances were.

David Scalley asked Chairperson Foti if he could speak.

David Scalley: Terry and the Board, we are not here to discuss what took place at the last meeting and why the Select Board decided to do what they did. That’s past us right now. As soon as we get the answers from legal and after the Zoning Board, all the boards will know. But for us discussing it now is not the place.

Terry Penner: That’s fine. But to answer Alex’s question, we can’t make changes, why would we want to make changes, if we don’t know what the situation is.

Chairperson Foti: I should also point out though, the appeal, I don’t know who participated in the Zoning Board meeting, the appeal that was made, was actually not even based on driveways, it was based on lot frontage.

Terry Penner stated that there was no reference that he could find in the regulations regarding road frontage as it pertains to driveways.

Chairperson Foti: Well and I think that’s why it got denied. The appeal didn’t really make a lot of sense to a lot of people. So, it got denied. Once again, we’re not discussing the merits of the appeal. That appeal was denied, it failed. So clearly, I think we made the right choice as far as this Board goes and others have agreed to it. I do see your point, it’s hard to really understand the objection, what we should change or whether we need to change anything if we cannot have an open conversation about what it was exactly that the Select Board was concerned about and the Select Board hasn’t been overly transparent about what their concerns are.

Terry Penner suggested the Board wait until they get legal decision on this and then they can address the issue, whether the Board need to make any changes to ordinances or site plan reviews. Chairperson Foti agreed that made sense.

Donna Foster asked in the event they did make changes and they say only one driveway can handle two lots…What happens if somebody comes up in the future, like they did now, bought a landlocked piece of property, will we deny them access to that property, how do we help move forward with getting a driveway?

Chairperson Foti explained that if it’s in the zoning ordinance, they would have to go to the Zoning Board to obtain a variance.

Terry Penner asked if the Planning Board had within its purview the ability to grant a waiver in this circumstance. Chairperson Foti confirmed that as of right now, yes, because the only place that it is, is in the Planning Board documents.

Donna Foster pointed out that she read something at the last meeting from one of the state regulations that made that statement, the Planning Board could give a waiver.
Terry Penner also confirmed that it’s in section 9.02 of the Planning Board’s Site Plan Regulations, right to approve a waiver for any of the requirements in the Site Plan Regulations.

Chairperson Foti confirmed Terry Penner was correct in his statement.

Chairperson Foti: I know there is a lot of angst over this decision. I know we still don’t have many of the facts, other than what was discussed with zoning, which was not a whole lot. Right now, the decision stands, David do you want to speak a little bit as to when we may expect some more open discussion on this matter?

David Scalley: It’s not that it’s a closed discussion, it’s amongst legal right now, Alex, and we can’t discuss it. If the Planning Board wants to make an adjustment to the regulations on the driveways or anything else, at this point with the driveways, I believe it would be best that the Planning Board waits until the ZBA gets through with their case and findings.

Chairperson Foti stated that the ZBA had ruled on the case and pointed out that Scalley just said that he wanted to wait until the ZBA is though with their case.

Scalley reiterated that until a decision is decided, the Planning Board could make the next step after that.

Terry Penner suggested that the whole discussion is based on Michael Finn’s suggestion that we need to know what we did wrong, if we did something wrong, so we don’t make the same mistakes or we amend the ordinances or the regulations, so we don’t get into the same situation in the future. David Scalley also agreed.

Vice Chairperson Finn made a statement asking if was correct in understanding that the appeal that the Select Board made was on frontage and pointed out that the Planning Board was making a decision on getting access to the lot. He felt that those are two different things and pointed out that their decision had nothing to do with frontage; it had to do with getting access via a driveway. Finn expressed that he thinks the Board could table it, but definitely, wants to entertain strengthening in our ordinances, not relying so much on the subdivisions, but on an everyday basis and feels a better definition the one driveway for two lots needs to be clarified. Finn went on further to state that when he read the minutes of the Zoning Board, it seemed like the question the Select Board was posing was not one driveway serving two lots, they were saying a frontage question and the Planning Board didn’t even talk about frontage when they made their decision. Finn questioned any connection between frontage and two driveways. Finn reiterated that the Board should get a better definition or at least strengthen the fact that as far as whether it’s private roads, or town roads.

Chairperson Foti: I agree fully with you and I actually made that point at the meeting, since I participated. The Select Board appealed something that we did not discuss nor did we have anyway to discuss because we were not creating a new lot. So that was a moot point. And it is separate from this question of whether a driveway should serve one lot, two lots, three lots, or however may lots. Which was the question that was presented to us. So, it was within our purview to grant a waiver because it is within our regulations and in our regulations only. And the Zoning Board agreed that it was within our jurisdiction and upheld our decision. And as you say, however, I do think there is opportunity to strengthen this driveway definition/ordinance. Which it not an ordinance right now, and include it in the general provisions of our zoning ordinance so that it is actually somewhere clearly explained. What it is we are trying to achieve with that. Personally, as part of the conversation, I would like to understand more, which will help us in this conversation. What is the purpose of that regulation, what makes three lots off a one driveway so much more problematic than two lost off of one driveway? We also know this is not downtown Boston, we are in an area with very specific topography with lots that could be hard to reach where creating multiple driveways may not be feasible. I would like to understand under what circumstances should we be deviating from that. I would love to have an open conversation about what all this driveway mumbo-jumbo means.

Julie Roesbery asked a question in reference to if somebody buys a landlocked piece of property, can they force the other neighbors/land owners to allow them to make a road to their land locked property? Isn’t that something the other property owners have to agree to? Or can they be forced to make a road to this land locked piece of property?

Chairperson Foti explained that the neighbors in this case had already agreed to easements to allow for this. Julie Roesbery thanked Alex for clarifying.

Vice Chairperson Finn asked Chairperson Foti if it should be suggested that a motion be made that something be drafted for the Boards consideration on the one driveway and two lots. Chairperson Foti suggested that the Board has time and it does not need to be done until December and to table it until the Board has more information on the specifics/outcome of this case and then open up for discussion with more transparency and more collaboration and come up with something that really serves what the purpose of what the regulation should be.

Vice Chairperson Finn questioned if the Board had to wait for legal opinion.

David Scalley: Mike, the Select Board appealed the Zoning Board’s decision and requested a rehearing and they can either have rehearing or a new meeting on it, or the Zoning Board could say no. The Zoning Board is its own entity. Until we get through with the Zoning Board and their decision what they’re going to do to move forward we’ll work together. Making a motion on a driveway regulation right now is probably not the best choice, we’ve got until December to do it. And to let the board know in the past we have allowed three lots off one driveway. There are driveways that serving multiple lots.

Chairperson Foti suggested to the Board to put it off for a month or two, get the full data and still have many months to work on it. Vice Chairperson Finn wanted to make sure that it was just getting tabled and not lost in the shuffle over time. Chairperson Foti agreed and reassured that it would stay with the Board to go back to, as well as other things and reminded the members that it is the Board’s job to continue to improve zoning ordinances over time.

David Scalley suggested to the secretary to list Driveway Regulations under “other” on the agenda every month so it gets addressed each month and not forgotten. The secretary confirmed she would add it to the agenda to be readdressed each month under “other”.

ITEM 5: Email - Stapleton

Chairperson Foti explained that the Board received a letter from Jeanne Stapleton this week regarding tower emissions. The Chairperson reminded the Board that the Stapleton’s are abutters to the existing cell phone tower in Twin and that they also received a letter from them back in December regarding the cell tower’s gate placement and getting access to their property, as well as the sign on the gate indicating excessive radiation. Chairperson Foti explained that the email that is in front of the Board tonight is asking for answers pertaining to the sign on the gate indicating the excessive radiation emanating from the site, as her land is within the radius of the tower and she is concerned by the warning of excessive emissions and how it could affect her and her property.

Chairperson Foti stated that in December it was determined that this was not in the purview of the Planning Board and was referred to the Select Board/Code Enforcement to be addressed, as is this email. Chairperson Foti asked if David Scalley had any information regarding this.

David Scalley stated that Jeanne Stapleton contacted them back in December about the gate and at that time he had gotten in contact with ITW regarding the gate. It’s been determined that the gate is where it is supposed to be per the drawings and the plans that the Planning Board approved.

David Scalley informed the Board that upon receiving the recent email that was received on March 2, 2021, he contacted ITW and spoke with Kevin Fadden regarding the concern. Kevin brought the concern to his team and responded back to him within the next day. David Scalley gave a brief overview of what was conveyed back from ITW—the signs that are on the gate are the signs that were approved by the Planning Board’s decision on sheet number 5, on June 29, 2020. The signs are there as safety precautions for their team and any workers who come onto the site that need to work on it, to notify them what is going on and what could be a caution. They are on all of the towers and the gates. David Scalley reassured the Board that everything he spoke to Kevin about is in regards to her letter and email and that he will have the Select Board reply to Ms. Stapleton directly. David Scalley wanted to point out that Ms. Stapleton has also been in direct contact with the communication tower company, ITW, on a regular basis, so she is aware of what is going on, as well as the Select Board and the Code Enforcement Officer are. He also confirmed that the concerns that have been brought up have been followed up on.

OTHER

Voluntary Lot Merger Application: 201-015-000-000 and 201-015-001-000, Route 115, Twin Mountain, NH 03595. Bahamian Maritime, LLC.

Chairperson Foti informed the Board that this was not on the agenda, as they all received it today and reminded the Board that as they have discussed in the past, voluntary lot mergers are pretty much a formality. He explained that the mergers in New Hampshire are considered in the public’s interest to have larger lots rather than smaller lots. Chairperson Foti asked the Board if they had any concerns, there were none. Chairperson Foti stated that he would come to the office on Monday to sign.

David Scalley asked to give a brief history on the property so everyone is aware with what is going on, Chairperson Foti acknowledged and Scalley quickly highlighted that this lot was split up into two lots, 22.32 acre lots each some time ago. They tried to make two driveways off of Route 115 and it got denied by the State. What they are doing now, because they couldn’t get another curb cut from the State and they need to access both lots from a common driveway, they’ve decided to merge the lots back together, as they once were, with the one driveway.

Donna Foster motioned to accept the merger as requested. Chairperson Foti explained that he did not think the merger needed to be motioned and it literally just needs to be signed by the Chairperson. David Scalley confirmed, it is just signed off by the Chair.

ITEM 6: Adjourn

Terry Penner motioned to adjourn the meeting. Brian Mycko seconded. All in favor, no opposed. Meeting adjourned at 7:48 p.m.