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Board of Adjustment Minutes 12/12/2007
DECEMBER 12, 2007

Case #213-Paul & Gwen Adams-Appeal From An Administrative Decision, Article II District R, of the Planning Board on 11/1/07 to approve the proposed Open Space Conservation Development/Subdivision owned by Frank & Sue Merrill, Map 10 Lot 2, located on Pleasant Street & Healy Pasture Road.

Members Present:  Edward Meehan, Chairman; Stephen MacCleery, ex-offico; David Dobson; Mark McIntosh; Richard Millette; Ben Brown.
Voting:  Edward Meehan, Stephen MacCleery, Mark McIntosh, Richard Millette, and Ben Brown.

Paul Adams, Applicant; Bradley Towle, Planning Board Chairman; Jamie Pike; Brandon & Katrina Giuda; Karen Lingner; Christine Addington; Frank, Sue & Carl Merrill; Gordon Jones.

Minutes were transcribed from the taped proceedings.

Ed Meehan presented a letter from Brandon Giuda pursuant to RSA 677:7, that Frank Merrill, Katrina & Brandon Giuda seek intervener status as a party in the above case, as their rights are directly affected by the appeal.  (On file)

Mr. Adams presented a large colored map of the Merrill development as well as his argument for this case, which is different from his argument submitted with the application.  (On file)  Mr. Adams states that this is a development in a swamp.  He has only made example of the worst portions.  The wetlands were identified by the developer and are shown on the map in orange.  He feels the problem for the developer is that there isn’t sufficient good soil in several lots to support the requirement identified in the zoning.  Lot #3, on map, only has about 25% buildable soil.  You can’t build in the wetland buffer either.  There are other lots that are the same way.  They don’t have sufficient good soil to support the requirement for building in the R/RA zone.  OSWL requires _ or _ acre.  The Planning Board is not allowed to approve a non-buildable lot, it’s in law, subdivision regs. & RSA.  Mr. Adams feels that lots 1-4 & several others on his plan are non-buildable lots by definition in the zoning.  The development shouldn’t have been approved because of the non-buildable lots in it, which is illegal.  The lots pointed out are 1.22 acres, .97 acres, .93 acres, & 1.33 acres.  If you take out the wetland and the buffers it will come in under the _ acre required by OS zoning.  Mr. Adams further stated the buffer is non-buildable.  The initial building code in Chichester states that if you have a 2 acre lot you cannot have more than 10% of it wetland, and it is the same for a 5 acre lot.  The OS zoning, which the developer has applied under, says lots will be _ or a _ acre.  The other problem is the type of septic systems.  Will they be going under the road to another lot?  The town attorney recommendations, when this OSWL was proposed, he said that the town should not consider putting any septic disposal systems in the wetland buffers.  He feels that the PB hasn’t addressed the septic system problem.
Ed Meehan asked if there were going to be individual houses, multi-family etc. on these lots.  Mr. Adams stated that they are approved as buildable lots.  What the developer puts on them is up to him.  The town approved the OSC ordinance, the developer took that consideration to make small lots.  He doesn’t have to have a 2 or 5 acre lot.  He can have a _ or _ acre lot, which is to his great advantage.

Steve MacCleery-Mr. Adams stated that you can’t put septic systems within buffers, buffers are not buildable.  According to our zoning, under wetlands, it is allowed.

Mr. Adams-The OS zoning says it is okay in the buffers.  I stated that the town attn. said that it was a bad idea.

Steve MacCleery added that the BOA has to go by the zoning the town has approved and septic systems, leech fields and other waste disposal facilities are allowed in wetland buffers.

Mr. Adams-The septic is a separate issue.  The main issue is there isn’t sufficient land to build on.  The septic problem with the developer was never addressed, but it is a big problem.

Steve MacCleery-When someone brings a subdivision to the town, test pits need to be done to prove that there is sufficient sq. ft. that will support a system.  The PB doesn’t get into approving where septic systems are.  The applicant has to prove that a system can be built on a lot.

Mr. Adams-It is quite obvious that a septic system can’t be built here.  The PB has to look ahead sometimes and do a little planning.  We will forget the system issue.

In Mr. Adams’ submitted argument “numerous lots” are referring to lots 1-4, 10, 13 & 14.

Bradley Towle, PB Chairman-The lots depicted on the plan are not individual subdivisions.  There is a main lot and a subdivided lot in the Open Space Conservation portion.  The lots outlined by Mr. Adams are areas that will have buildings on them.  These are technically not lots, just an area set apart.  It was confusing at first for the PB.  This development is divided into two lots.  That is where the 10% comes in; it is not 10% of the area shown on the submitted plan, but 10% of the whole lot that is considered.  The plans show a subdivision and a site plan, which wasn’t really required.  The only requirement was the subdivision portion.  There is another set of plans that went with these plans which show a 4,000 sq. ft. section for the septic system.  A single family only requires about 400 sq. ft.  Ten times the area required has been made available for the septic and leech field.  There is a squared off area that is not in the wetlands but may be in the buffer.  Even if they are, the 4,000 sq. ft., they say they don’t need it even for a multi-family, they can still use the 4,000 sq. ft.

Steve MacCleery-Do the _ & _ acre requirements as these divisions (lots) are shown, are those required?  Mr. Adams stated that lot #3 does not have a _ acre of buildable soil.

Brad Towle-If this was a separate subdivided lot.  Common land has been taken into consideration.

Ben Brown-Is it being stated that the outlines shown on the plan have not been approved by the PB, just the two major sections of this lot have been approved?

Brad Towle-It is possible for them to readjust the lines a little bit.  Essentially, the PB approved the subdivision but did consider if he divided the depicted portion up, can you put a house on it with a leech field & well.  A couple of them will have a shared well and the well radius expands from 75’ to 100’.  If it is serving four of them then it goes out to 200’.  All of that has been considered.

Ben Brown-The individual “plots” don’t require individual subdivisions/boundaries?

Brad Towle-Correct.

Ben Brown-There will be no deed for that particular area of land?

Brad Towle-You would have to ask the developer.  I do believe that they will have a designated area that they will own.  They will own the building and the common space between the buildings will be shared.  There is also age restriction homes in this development.

Ben Brown-What is the purpose of the drawn lines?  They seem to cause more confusion.

Brad Towle-Just for showing where they plan on locating a building.  On the other set of plans a leech field for each lot proposed is shown.  The PB was reminded that the lots were not the subdivision, just the area where buildings would be.  This was a 6 month process with the developer.

Ben Brown-The PB seems to be learning this and understanding it as they go.  Is this not particularly well defined in the zoning?  Is it based on what the landowner is describing to you or by what is in the ordinance?  

Brad Towle-This is the way they proposed their development.  
Condominiums are involved, that’s what makes it more difficult.  There are plans available that show where the leech fields would go.

Richard Millete-The lines on the plan are not lot lines?  I’m curious as to why the lots were laid out so accurately.  Will the person buying lot #3 consider these lines as part of their property?

Brad Towle-They are not traditional lot/subdivision type lines.  The house is the only thing they will own, the common area will be shared.  I would imagine that there will be property that they are responsible for but essentially, the only thing they are buying is a percentage and a building.  There will be a home association agreement.

Mark McIntosh-Will each building have its own septic system?  You mentioned a common well among a couple of homes.

Brad Towle-I think one has a shared well and septic because the well was in the right-of-way of the town road.  DES has to approve the locations.  Conditional approval was given pending DES approval.  Lot boundaries where not approved because the PB didn’t need to.

The board commented that this is a new concept in our zoning.  There are no firm boundaries.  This is a learning curve for everyone.  It was asked if the building lots would eventually be defined.

At this time Mr. Giuda interjected that the matter at hand was getting way off track and that a lot of technical questions were being asked of the PB Chairman that he could answer himself.  He would like to object on one thing; we are here, not on a planning issue, but on one point of zoning and this board has no authority to go into what they are asking him now.  We are here on whether the 10% applies and whether it has been violated.

Ed Meehan-I think we are trying to get at that issue.  Feel free to object, but we are looking at a theoretical.  Those aren’t the boundary lines that we are going to be seeing.

Mr. Giuda-With all due respect, the PB chairman has it wrong because you are asking him a lot of technical questions that he can’t answer.

Ed Meehan-You will get your opportunity to speak.  How many acres are involved in the project that involves the lots in question?

Mr. Adams-Lot #9 is 32 acres, which have 5.7 acres of wetland.  38 residences will be there.  About _ of the 32 acres will be open space.

Mr. Adams wished to rebut comments made by the PB Chairman.  At this time BOA Chairman Ed Meehan said that Mr. Giuda would now have an opportunity to speak because he is a party to this.  Mr. Adams wanted the board to realize that this lot has nothing to do with Mr. Giuda.  Mr. Giuda stated that he was representing Mr. Merrill this evening.

Mr. Giuda first of all would like to object to the plan submitted by Mr. Adams.  It is not the approved plans.  The approved plans have many pages with lot lines that are set.  He would like the BOA to keep the submitted plans because if this case goes to court these plans will be evidence that will be submitted by Mr. Adams.  He would like to talk about jurisdiction because pursuant to RSA 676:5 III, this board does not have jurisdiction over this matter.  There are two places you can appeal, and it is important for the board to realize because this is a technical topic where people get confused all the time, even attorneys.  The BOA has no jurisdiction over whether a septic system is designed correctly.  In part III of RSA 575:5 it states “however, that if the zoning ordinance contains an innovative land use control adopted pursuant to RSA 674:21 which delegates administration, including the granting of conditional or special use permits, to the planning board, then the planning board’s decision made pursuant to that delegation cannot be appealed to the board of adjustment, but may be appealed to the superior court as provided by RSA 677:15.”  What does delegate to the PB mean?  The PB makes the decision on this subdivision under innovative land use control it has to be appealed to superior court and not the zoning board.  RSA 674:21 has been submitted also to better explain.  “An innovative land use control ordinance may provide for administration, including the granting of conditional or special use permits, by the planning board, board of selectmen, zoning board of adjustment, or such other person or board as the ordinance may designate.  If the administration of the innovative provisions of the ordinance is not vested in the planning board, any proposal submitted under this section shall be reviewed by the planning board prior to final consideration by the administrator.”

There is no administrator.  The PB had the final say on approval of this and as such, under innovative land use control and RSA 676:5 III, this has to be appealed to superior court.

Ben Brown-Why is this innovative land use control?

Mr. Giuda-That’s what open space conservation zoning is.  That’s what this is.  It is very troubling when the thought it put forth that this is not an extremely well thought out and very defined ordinance.  Everything on the final approved plans, the PB Chairman was incorrect, it is a little confusing because the condominium comes into it, every one of those lines and every one of the septic systems is exactly where it is going to be.  It is not a subdivision, but there are different rights associated with it.
If the BOA does have jurisdiction, which he argues they do not, then the subdivisions have to be treated differently.
To appeal the decision of a subdivision the Adams’ have to be an aggrieved person.  Not just anyone in the town can appeal a subdivision.  To be an aggrieved person they have to show a direct definite interest in the outcome of the proceedings.  Mr. Adams brought the Giuda subdivision into this by saying; although they are not an abutter their wetlands impact our wetlands.

At this time Mr. Giuda submitted case law 139 NH 450; Nautilus of Exeter, Inc. v. Exter & Exeter Hospital; 656 A.2d 407, which shows you have to be an aggrieved person.  The Supreme Court of NH has made it very clear that an aggrieved person can’t be anybody.  You have to have a definite interest.  The Adams’ attempted to claim that they have a definite interest because their wetlands are impacted.  Mr. Giuda also submitted a letter from his wetland scientist which says that the Adams’ three lots are over 1,000 ft. from his and that the Giuda wetlands drain into Perry Brook, goes south not east, and has no impact upon their wetlands.  (Both submitted items on file)
Even if the board had jurisdiction, the first argument which we say it doesn’t, under the second argument, the Adams’ are not an aggrieved party to the Giuda subdivision and therefore they can’t appeal that.

At this time it was made clear that Mr. Adams is a direct abutter to the Merrill subdivision but not the Giuda subdivision.

Mr. Giuda-The Open Space Conservation ordinance itself, which I was on the committee that drafted this very good ordinance with a lot of town input, pertaining to the 10%-Mr. Adams is saying there is a stricter standard in the ordinance, 10% has to be buildable.  If you look at the ordinance and its density you will notice that instead of 2 acres it is multiplied by 1.8, 10% has already been taken out.  Instead of 5 acres it is 4.5.  There is no stricter standard, it is the same standard.  It has been put in this ordinance; you’ve already taken out the 10% because in an OSC ordinance you can group them in different areas as an innovative land use control to maintain what you want in your subdivision.  
Mr. Giuda referred to pg. 49 of the zoning ordinance under #5. c. Density.  The 10% has already been applied to determine the number of lots they can have.  Also, if the 10% hadn’t already been applied, and there were any conflicts, #4. a. under General Requirements would take precedence.  (pg. 48)

In this subdivision there are limited common areas and lots.  When you do an OSC ordinance and it’s a condo, you don’t have individual lots.  The lots have been exactly set.  Mr. Adams’ submitted plan is not the final plan and that is why Mr. Giuda objects to them.  The final plans are quite extensive and they show 4,000 sq. ft. as they’re supposed to.  The common areas will be owned by the association but they can only do limited things on it such as maintenance.  If any lines are going to be changed they would go back to the PB and ask to change them.  Septic areas have already been approved by the town but not the systems.  There will be shared septic and well areas.  This has been extensively engineered to save and preserve open space.  
You can’t take your 10%, even in the lots because it has already been taken out.  You have other open space that is being preserved.  You don’t just want to preserve wetlands, you want a good mix.  The 10% doesn’t apply in the OSC ordinance for that reason.

Steve MacCleery-It didn’t need to have the _ or _ acre?

Mr. Giuda-On the larger lots they do need the _ & _ but the 10% has been taken out.  Mr. Adams may have implied that lot #3 doesn’t contain _ or _ of an acre of buildable land, but it doesn’t have to.  It has to have _ or _ of an acre; otherwise you are taking the 10% out twice.  _ or _ does not have to have all buildable soil in it.  Mr. Adams is trying to apply his reasoning to a 2 or 5 acre requirement and it doesn’t apply to this.

Steve MacCleery-Your buildable soils end up common all over the development.

Mr. Giuda-The advantage is that you come up with huge areas that are going to be preserved.  Between the two projects 200 acres will be preserved.  Both projects are less than 10,000 sq. ft. of wetland impact.

Ed Meehan questioned the board as to the jurisdiction issue.  They feel they should get clarification from town council on this matter after reading RSA 676:5 & 674:21.  It is a waste of everyone’s time to go any further if this is not a BOA matter.  The second argument is whether Mr. Adams is affected by the other subdivision.  

Mr. Adams stated that he would like to speak before a motion was made.  Chairman Meehan said the board has to decide on this issue and feels a legal opinion needs to be obtained before we can continue.  If town council directs that the BOA can continue with this public hearing then Mr. Adams will be allowed to raise abutting comments.

Mr. Adams said 674:21, innovative land use, has been raised but not in total.  Early on Mr. Giuda was challenged that he hadn’t addressed all the factors in 674:21 and he chose not to.  The word “may” is a legal waffle.  The RSA states innovative land use controls may include, but are not limited to timing, intensity and use incentives, which he has been given.  He got cluster development, impact zoning, flexible & discretionary zoning, but when you get down to inclusionary zoning which includes the fact land use control regulations provide a voluntary incentive or benefit to a property owner in order to induce the property owner to produce housing units that are affordable to persons or families with lower or moderate income.  Inclusionary zoning includes, but is not limited to density bonuses, road control exemptions, and a streamline application process.

Ben Brown-Do you disagree that this development falls under 674:21?

Mr. Adams-The OSC ordinance says it is developed under 674:21.  I do not disagree with that.

Ben Brown-Do you disagree that under 676:5 that decisions based on 674:21 can’t be appealed to the BOA but can be appealed to the superior court?  The topic at hand right now is whether or not the BOA is allowed to hear this appeal.  Points need to be addressed to that issue and not other topics.

Mr. Adams-This appeal has nothing to do with 674:21.  It is the fact that these are non-buildable lots and when Mr. Giuda went and got permission for open zoning he took into account the wetlands.  His say so that the 10% has been taken care of is a lie.

Steve MacCleery suggested the board look at RSA 677:15 which explains appeal and court review of planning board decisions.

Mr. Adams added that they should look at 676:14 also which is what Central Regional Planning Commission said took effect over the OS zoning.

Steve MacCleery moved to continue this public hearing until January 10, 2008 at 7:00 PM so town legal opinion can be obtained concerning RSA 676:5 and the BOA’s jurisdiction in this case.  Ben Brown seconded.

Mark McIntosh – Yes
Steve MacCleery – Yes
Ed Meehan – Yes
Ben Brown – Yes
Richard Millette – Yes

Motion carries 5-0.

Respectfully submitted,

Holly MacCleery, Secretary

Edward Meehan, Chairman

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