DAYTON PLANNING BOARD
Workshop Meeting
August 7, 2006
Members Present: Nancy Harriman (Chair), Rick Shaw, Derrick Vezina, Ron Wormwood, Dick Hall, Valerie Cole (Alternate)
Others Present: David Ordway, Town Attorney; Jack Taylor; CEO Jim Roberts
ADMINISTRATIVE
Minutes from the June 19 regular meeting were read and accepted.
Minutes from the July 12 Bickford Road/Morse site walk were read and accepted.
Minutes from the July 17 regular meeting were read and accepted.
Ron Wormwood motioned for acceptance of minutes, Derrick Vezina seconded, all voted in favor.
WORKSHOP MEETING
Nancy Harriman noted that the Board was not doing some procedures properly. She expressed concerns that the CEO and the Plumbing Inspector were not always working with the Board. She asked the Board to discuss whether or not they want the CEO and Plumbing Inspector present at meetings, and how to get them there.
Nancy also asked whether or not she is entitled to express an opinion in the Linwood Acres issue. David Ordway explained that the Board had voted to allow her to run the meeting, and if the Board feels that she is out of line, they have the right to reconsider the vote. He cautioned her to give everyone a chance to speak.
Dick referenced Mr. Ordway’s letter regarding Board procedures, and asked for a clarification of "family relation". Mr. Ordway said it means “immediate family.” Dick felt that Nancy has no conflicts regarding the Linwood Acres subdivision. Mr. Ordway noted another statement is "perceived as conflict of interest" and noted that it could happen, but what Nancy brings is the wants and needs of the community. He noted if one uses local knowledge, it needs to be made part of the record. Dick felt that even if people keep bringing up the point that Nancy is related to the Linwood Acres applicants, the Board needs to keep moving forward. He noted that the Board could object also if there is an issue. Mr. Ordway pointed out that both Board members and the Chair can raise the issue of
being uncomfortable.
Nancy explained she was uncomfortable because it was perceived that the Board was trying to set some zoning changes. She wants the Board to be careful to not set something that cannot be backed up with the zoning ordinance. This impacts cisterns also. Mr. Ordway explained that it is not the job of the Board to legislate; the Board administers the ordinances that it is given and can only recommend changes.
Nancy said that Mike Lord of the Fire Department called her with additional questions on cul-de-sacs, hammerheads, and cisterns. She asked him for recommendations on cisterns, he indicated that a cistern should to be able to service 1000 feet. Nancy researched and found out that cisterns cost about $35,000, although she has heard of someone who installs them for $10,000. (Correction: this is not verified, Nancy was told by someone that there may be someone who provides cisterns for $10,000.) Jim Roberts noted that it might make a difference if the applicants decide they want to ask for a waiver on the fire pond and offer to install a cistern.
Mr. Ordway noted that the zoning ordinance calls for a fire pond. An applicant can come before the Board to request a waiver; the Board has the right to grant a waiver and can apply conditions. The Board can ask what the applicant would like to propose for an alternate. Ron asked if that would be changing the ordinance; Mr. Ordway noted that it is not and the difference is that the developer is asking for an alternative, the Board is not demanding one. Ron asked if the Board could interchange, such as road width and cisterns, where one has no relationship to the other. Mr. Ordway said that is not interchangeable and then read from the standards, explaining that Board may waive a requirement for consideration of improvements, subject to appropriate alternatives. The Board has to protect the public’s safety and
welfare.
Mr. Ordway instructed the Board to always start with the checklist. He felt the current checklist is out of date as compared to others in the state. He put together a reference for members to take home and review.
Nancy asked if the town must follow state criteria that the town does not have. Mr. Ordway said it must. One example is wetlands, which may not apply. The checklist must be reviewed; it is a way to move the Board from point to point.
Nancy explained that she asked Mike Lord about the feasibility of cisterns in the middle of a development, he did not have an answer. Dick noted that it had been brought up in the previous meeting and there were concerns about driving over hoses. Nancy also asked Mike if a cistern has to be placed at the end of a road to protect houses not in the development. Mike replied that it does not.
Mr. Ordway handed out a packet entitled “Municipal Land Use Approval Process.” It also contained court cases; he noted some that had been handed back to boards because of failure to complete the “Findings of Fact” and checklists. Each criteria needs to be voted on separately. Judges have decided that it is necessary for each criterion to be passed, but not always by the same people. Courts have recognized that boards can change their mind and may undergo changes of membership also, both of which can lead to different end results. Nancy pointed out that the Board’s role is to follow the guidelines.
The new ordinances (voted in during June Town Meeting) have not yet been supplied to the Board.
Mr. Ordway asked how the application is handled upon receipt and when it is deemed complete. The statute says that when an application is received, a dated receipt must be given to the applicant and the abutters must be notified. He explained that in other towns the applicant brings in the application and gets a receipt, but that does not give them any legal rights. Once the Board starts to look at the plan, then the applicant has limited rights.
If the Board starts to offer feedback, then the Board has started some sort of substantive review. The statute says within 30 days of receiving the application, the Board must notify the applicant whether or not the application is complete, and what more is needed if it is incomplete.
Derrick indicated he is working on that issue and is creating a checklist to help applicants through the process.
After the Board has reviewed the application, it notifies the applicant and starts to review the subdivision. If the Board decides to hold a public hearing, it must be within 30 days of receiving the complete application. It must be properly advertised. The municipal reviewing authority shall, within 30 days of the public hearing (or 60 days of receiving the complete application and not holding a hearing), issue an order to deny, grant, or grant with terms and conditions. Many towns request an extension, or explain to applicants that they must deny the application if they can't have more time.
At the next meeting with Linwood Acres, the Board should ask the applicants for an extension.
Dick noted that the purpose of a public hearing is to protect the Board and show the public that the Board is considering its interests, and it helps the Board to spot issues of which it is not aware.
Nancy asked how to handle testimony or comment over a cell phone; Mr. Ordway felt that it was handled well at the previous meeting.
Mr. Ordway noted a recent finding whereby, if a subdivision is in more than one town, the Board needs to determine if it will unduly impact traffic in the other town.
Derrick told the Board that he is taking himself off the Board during the Morse subdivision review. Ron is also. Both cited conflicts of interest.
Mr. Ordway noted that a future issue may be that if someone does not participate in part of the approval process, the Board needs have the Board member review all minutes and submissions or to attain consent of the applicant before voting. Nancy noted that members should be at site walks and public hearings in order to vote. Members who are not present should indicate if they have reviewed the minutes relating to the event.
Mr. Ordway asked how the Board conducts site walks. Nancy explained that it is kept factual, it is explained to the public that it is not a public hearing, but is for fact finding only. It was noted that the Board has not been walking the entire site boundaries. Mr. Ordway explained that a site walk is not required to cover the whole property but the Board should be familiar with the plans and property lines.
Mr. Ordway then explained that the purpose of a public hearing is to gather information and give the public a chance to bring forth local knowledge. It is not necessary to have a public hearing, nor is there is anything that says more than one public hearing is required. Additional public hearings may be held if plans have changed substantially.
Nancy asked about the length of time for a public hearing, specifically if the Board is allowed to limit comments to a certain amount of time and tell people to move on. Mr. Ordway suggested reminding people that the Board is looking for new information. A good rule to follow is if the applicant and members of the public have been treated fairly, then the Board has done a good job.
Dick brought up the question of how the Board will set up agenda items. Jim noted that in many towns the CEO reviews subdivision applications first and either sends them back or sends them on to the Planning Board. Most towns require it to be submitted several days in advance of the meeting. Once applicants have sent in the required items, it is on a first come- first served basis.
Dick felt that the Board needs to decide how many people to review at a meeting; Nancy suggested setting a time limit for each applicant.
Mr. Ordway asked if the members have a way to get materials before the meeting so as to be better prepared. Ron noted that when the applicant comes to the Board, the application should be complete. Mr. Ordway suggested that the Board complete his previous recommendations. He pointed out also that there is a list of submission requirements in the ordinance, although it does not necessarily indicate a completed application. Section 8.2 tells the submission requirements. Section 5.3 notes that agenda time must be requested in writing, but the Board may not want to be that formal. The Board should clarify to applicants that if they want to be on the agenda, they must follow procedure.
After discussion the Board proposed the following items as Planning Board Procedures:
Sections 5.1-5.2
· Application submission deadlines: 16 days before the scheduled meeting
· All subsequent technical information and correspondence: 16 days prior to the next meeting date
· It shall be the discretion of the Planning Board to accept submissions after the deadline, provided that the Planning Board has the opportunity to review such submissions at least 7 days prior to the meeting
· One copy of the submission should be mailed or made accessible to each Planning Board member
· The Planning Board has established an informal limit of 2 substantive items for each agenda
· The agenda shall be created by the Chair approximately 7 days before the meeting date
Section 7.3
· The public may provide written information pertaining to projects where the Board does not require public hearings. The Board shall accept written information no later than 16 days before the date of the meeting, and copies shall be furnished to the applicant at least 7 days before the meeting.
The Board will vote on these procedures at the August 21 meeting.
Jim Roberts noted that state law says as many test pits can be taken as needed to determine soil suitability. He feels that at least two should be required. Ron felt it was not necessary to take a second if the first one had passed. Jim clarified that one should be taken wherever a septic system should be placed. Dick felt that having two shows that there is decent soil. Mr. Ordway noted that the form HE200, once stamped, certifies that a design is adequate for the system. Many towns require the HE200 for each lot as part of the submission. Jim explained it is hard to get the design at times, as it is based on the number of bedrooms. Nancy noted that two test pits are not in the zoning and the issue would have to go to the Selectmen and then to a town vote. Ron asked if the two pits should be a certain distance apart. Mr. Ordway noted that two test pits don't mean much if the design is not appropriate. Jim felt that a soil test is usually sufficient. He pointed out another problem
in that there may be two good pits that are located in the building envelope, so a septic can't be placed there. The Plumbing Inspector can enforce the test pit procedure. Rick noted that a test pit must be done when the design is done. Mr. Ordway pointed out that the person buying the lot and applying for a permit may end up with a lot that won't perc. If the Board has questions about what the soil scientist has done, it can always ask an engineer to test again.
Dick and Ron wondered if the Plumbing Inspector should be required to approve the test pit locations. Mr. Ordway noted that many towns have a consulting engineer and peer review before the board acts to deal with this issue. This is at the applicants’ expense. After discussion, members felt that the current requirement of "a minimum of one test pit" was adequate.
Dick brought up the issue of road standards. He felt that the decision has been made that every subdivision road will be 25 feet wide. Ron noted that the density and location of the subdivision should be considered. There is an assumption that someday Route 35 will have sidewalks. Mr. Ordway pointed out that the starting point is the zoning ordinance, and the only option is to grant a waiver of the ordinance. There is a requirement of a 20-foot wide paved area for a minor street; it is not up to the Board to decide what a subdivision needs. The Board can decide if there are conditions that exist to waive, reduce, or modify it. He noted that it is not really a 25-foot road; it is a 20-foot road with a five-foot sidewalk. If in the future developers wish to attach another subdivision, they take on the expense of widening the
road if it is then classified as an arterial. Mr. Ordway urged the Board to start with the rule and then consider exceptions based on the particular subdivision. It is important to follow the ordinance and be consistent.
If the ordinance regarding fire ponds were to be changed to require cisterns, the recommendation would need to go to the Selectmen. The Board can only waive fire ponds and ask the developer for an alternative. Another option is for the developer to put sprinklers in each house. Jim noted that the Fire Department should give recommendations. Nancy pointed out that the recommendations should be used as a guide, not the law. The Board has to stay with the zoning, although the applicant can suggest an alternative and the Board can decide if it is reasonable.
Inconsistencies remain in the issue of cul-de-sacs versus hammerheads. Members were reminded to bring information back to the Board in front of the applicants. If the Board wishes to recommend a change, this will also have to go before the Selectmen.
Board members felt there should be a person to ensure that subdivision applications have the required items before coming to the Board. The applicants should be told that there are 12 items in the zoning ordinance that must be in the hands of the Board before they can be on the agenda. (Subdivision Standards Sections 7.1 & 7.2.)
Nancy expressed concerns to Jim about having support from the CEO and Plumbing Inspector. Jim suggested that if she has concerns she should write a letter to the Selectmen. Jim clarified that he supports the Board and was only concerned that it appeared she was steering the Board during the previous meeting with the Linwood Acres applicants, and he felt that she should be only moderating instead of giving an opinion. Mr. Ordway pointed out that the decision should be made by the Board as to whether she was giving opinions or not. He clarified that Jim works as an advisor to the Board by providing comments, but he does not work for the Board. He serves at the pleasure of the Selectmen. He is responsible for providing services to the Board. It is up to the other Board members as to whether or not there is a conflict of
interest.
Dick noted that it is the job of the Board to protect itself from conflicts of interest. Jim can raise concerns, as can the public, and although the person who has been challenged does not vote, the rest of the Board can decide whether or not there is a conflict of interest.
Mr. Ordway advised that the Board could ask any public official to attend a meeting. If the person does not attend, it is possible to go to their boss and advise them of the situation.
The meeting adjourned at 9:20 PM. The next regular meeting will be Monday, August 21, 2005 at 7:00 PM at Dayton Town Hall.
TENTATIVE AGENDA FOR AUGUST 21:
Administrative:
Approve minutes from August 7, 2006 workshop
Vote on procedural changes
Applications:
Morse subdivision on Bickford Road
Ahern subdivision on Route 5
Frasier subdivision on Whispering Willows
535 Goodwins Road LLC subdivision on Route 35
__________________________________________________Date:_____________________
Valerie J. Cole, Secretary
__________________________________________________Date:______________________
Nancy Harriman, Chair
COPIES TO: Jim Roberts, Code Enforcement Officer; Selectmen; and Tax Assessor
THESE MINUTES MAY NOT BE TRANSCRIBED VERBATIM. SECTIONS MAY BE PARAPHRASED FOR CLARITY.
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