Jane L. LaBelle & Stephen R. Beckwith, 355 Kearsarge Mt. Road, Warner, NH 03278. Map 18, Lot 19, R2, R3, OC-1 and C-1 Zoning. To create 1 new lot of 17.6 acres, with the remaining parcel and existing house equaling 20.0 acres.

Appearing before the Board: Jane LaBelle and Doug Sweet, Bristol and Sweet.

Ms. Annis stated that the Secretary had recused herself as an abutter.

Ms. LaBelle: Basically, it is a 37 acre piece that will be divided into two parcels (as stated above). In the preliminary discussion, the line dividing the properties was sharper and has been changed somewhat from the preliminary consultation.

Question: Mr. Pershouse: There is an indication on the plan that says, "250 feet and Right of Way".

Answer: Mr. Sweet: It is along the stone wall, a right of way. It’s not a continuous wall there, that’s all it means. The 250.00 is a straight line measurement between the new monuments that divides the two lots. And we found a ¼ inch drill hole that is the original property corner. The wall meanders just slightly.

Question: Mr. Pershouse: I’m sorry, but it’s just not clear to me.

Answer: Mr. Sweet: One is a curve, and one’s a straight line. That’s all. The actual line along the wall and right of way is a 10^th of a foot longer. Did I answer your question?

Answer: Mr. Pershouse: I confess, I don’t understand.

Mr. Sweet said that along the wall, showing the plan, is a tenth of a foot longer than the measurement taken from a line set from the monument. He said that the right of way refers to an assumption that the right of way to Kearsarge Mt. Road is the wall.

Ms. Annis asked the Board if they had had a chance to review the plan, and asked if they had any questions.

Question: Mr. Reeder: There are 4 different zoning districts on the plan. If the plan is approved, and at some future time could somebody extend the road a little bit farther and put a commercial business in there, thus creating this road that would have commercial traffic on it from a driveway?

The Board discussed where the various zoning districts appear on the plan.

Answer: Ms. LaBelle: Could I clarify? The intention is just for residential home. There is no commercial intention.

Mr. Reeder: I understand that that, but the problem that we’re not just looking what’s happening tomorrow, but what’s happening in 20 years. Let’s say that you have a nice home there, and somebody decides, "Hey, I have a commercial property."

Mr. Serell: I don’t know what the answer to the question is, but I think it’s the same whether or not we approve this. I mean, you’ve got a lot that has a back corner that’s in a commercial district. So whether we approve this or don’t approve this, that situation still remains.

Mr. Pershouse: It would be helpful to me if we could wind up with some more extensive information on abutters’ properties and other buildings in the general vicinity. There’s the corner of what says "house" but it only shows a house big enough for a dog. I think it would be helpful to know what the general footprint of that house is, and I don’t know where the other houses are in the neighborhood. But to get a perspective on the fact that whatever development takes place, it is helpful to have the adjoining information shown.

Mr. Sweet: The one you spoke of, you have the closer end of that house. Doesn’t that satisfy that structure?

Question: Ms. Annis: You’re talking 50 feet equals ½ inch, correct?

Answer: Mr. Sweet: Yes.

Question: Ms. Annis: So the house owned by Louise Brown is maybe 50 feet from the stone wall?

Answer: Ms. Brown: It’s pretty close.

Question: Mr. Pershouse: And what about the back line – from your house to the stone wall?

Answer: Ms. Brown: Approximately 75 feet or so.

Question: Mr. Brayshaw: Is that on the checklist, for a subdivision, to require houses on the plan or any type of a plot plan?

Answer: Ms. Annis: No. It is on the existing one – on the lot that you’re talking about.

Answer: Mr. Sweet: We’ve got all the structures on the property met. Jane says that the structures on the lots going up the road are approximately 200 feet from the lot.

Question: Is that Runaway Farm?

Answer: There is a lot, a new subdivision, between Jane and Runaway Farm.

Mr. Sweet: As far as I know, the only building close to the property line is the one that we showed the closest corners of.

Mr. Brayshaw made a motion to accept the application. The motion was seconded and passed by a unanimous vote.

Ms. Annis closed the Board Meeting and opened the Public Hearing.

Abutter: Sissy Brown, aka Louise Brown, 329 Kearsarge Mt. Road. Ms. Brown owns the property next door to Ms. LaBelle’s property, and she spoke in opposition to the subdivision:

Restrictive Covenant first appearing in the October 31, 1972, deed from Lionette to Moyer. Tract II, said to contain 14.7 acres, was conveyed subject to a restrictive covenant said to apply to Tract I, which would allow only one dwelling house, attached buildings, and prohibit mobile homes, trailers, etc. The covenant imposed on Tract I, which benefits Tract II, doesn’t specifically prohibit subdivision of Tract I, but my contention is that both Tracts I and II were conveyed subject to the restrictive covenant, and that it was the intent of the grantors to protect the "back land" from development by restricting the land bordering Kearsarge Mountain Road to "one and only one dwelling house." The covenant runs with the land and "shall bind the grantees themselves, their heirs, successors and assigns, and shall inure to the benefit of the grantors, themselves, their heirs, successors and assigns."

The restrictive covenant still appears in the deed granting the property to LaBelle and Beckwith. [copies of all Warranty Deeds attached]

Previous Decision of Planning Board, August 18, 1979. Subdivision of 73.3 acres located on the West side of Kearsarge Mt. Road [called Tory Hill Road on notices] and extending to North Road. Described on the application as "4 lots for sale, 5^th lot owner". The attached minutes of the meeting stated that the Moyers planned the subdivision and would retain 38+ acres for the home lot and offer 4 lots for sale. George Fletcher, who owned my home at the time, voiced his concerns for development of the area "in back of his house (area to be retained by Moyer)". Mr. Rukowicz, an abutter on North Road, also voiced his concerns for further development. The minutes show that the question was asked: If approved, would possible further subdivision be possible? The answer was NO. The minutes also state that after hearing the proposal, the abutters that had voiced their concern about further subdivision were "not in disagreement" and had "no concerns" with the subdivision.

If Mr. Fletcher had been told that further subdivision would be possible at some time in the future, I feel certain that those comments would have been recorded in the minutes, and that the discussion wouldn’t have stopped where it did. It was, and is, a valid concern and one that shouldn’t be dismissed by the current Planning Board. [Minutes of the Board meeting attached]

Letter from Peter Moyer

I spoke with Peter Moyer, who stated to me that he remembers the discussion at the Planning Board meeting, and reiterated that it was never his intent to further subdivide the property. He said that the 20 acres behind my house, Suzanne Bouchard’s land, and the land owned by Rick Davies and Tina Schirmer was to be left as a buffer between the existing homes and the newly created lots. A letter stating this is attached. He states that "The neighborhoods would not be well served to justify further subdivision. The decision by the previous planning board is the responsible decision."

Letter from Fran Brown

Fran Brown, a real estate Broker, represented the Moyers at the 1979 Planning Board meeting. She has provided a letter stating that "It seems clear from the minutes of the meeting that the subdivision was approved on the condition that the property was never to be further subdivided."

Discussion with Lynn Bean

Carther-Lynn Bean was at the 1979 Planning Board meeting. In a phone conversation with Ms. Bean, she stated to me that she has expressed concern in the past about further subdivision of properties that have already been subdivided, and that she frequently brought up the question and her concerns about further subdivision when serving as a Selectman and Planning Board member. She also stated that in 1979, the process was much more relaxed than it is today, and that there was no full time secretary. The minutes were very sparse, and even though plans should have been marked with conditions of approval when signed by the secretary, it wasn’t always done.

Town of Warner, NH Subdivision Regulations

Section I, Authority and Purpose:

1. Provide against such scattered or premature subdivision of land as would involve danger or injury to health, safety, or prosperity by reason of the lack of water supply, drainage, transportation, schools, fire protection, or other public services, or necessitate the excessive expenditure of public funds for the supply of such services.

Creating this lot behind the existing homes on Kearsarge Mountain Road would or could involve danger or injury to the health, safety or economic well-being of both the owner of the proposed house and the existing homeowners should a fire or emergency occur. Because of the configuration and length of a driveway to the proposed house, it would be extremely difficult – potentially impossible – for emergency vehicles to navigate that driveway.

2. Assure conformance with local zoning ordinances.

It is obvious on the plan submitted that the frontage for the proposed lot on Kearsarge Mt. Road is only to try to meet the zoning ordinance requiring 250-feet of frontage for subdivision. Granted, the frontage is there, but the tapering off of the property line to the width of a driveway next to an abutting property before accessing the "back land" does not conform to the intent of the zoning ordinance as voted on by the Town of Warner.

Section III, Procedures

A. General Information

2. "…no structure shall be erected and no land cleared, no fill placed, no streets constructed and no alteration of the natural state of the land shall be made before a plat of the Subdivision has been approved by the Board and recorded at the Merrimack County Registry of Deeds.

…Nothing in this paragraph shall be construed to prevent such preliminary ground surveys, marking by states, engineering studies, inspections, and testing (including test pits and borings) as may be necessary to evaluate the suitability of the land for subdivision, provided that such activities be accomplished with a minimum of disturbance or alteration of the natural state of the land.

There has been quite a bit of clearing done, trees cut down, and at least 4 test pits dug on the property.

1. …Such site visits will be preceded by notification of the applicant. The applicant will be responsible for adequately flagging all lot corners, lot lines, test pits, and street centerlines prior to on-site inspection.

House location and driveway contour should also be specifically noted and marked.

1. Application Procedures

1. Preliminary Conceptual Consultation

1. …Such review shall not bind either the applicant or the Board and time limits for Board action under RSA 676:4,IC(c) shall not apply. Statements made by Board members shall not be the basis for disqualifying said members or invalidating any action eventually taken on the application.

Section VI, Design Standards

1. Lots

1. Insofar as is practical, side lot lines should be at right angles to straight streets, and radial to curved streets.

1. Where there is a question as to the suitability of a lot or lots for its or their intended use due to the presence of such factors as rock formations, steep slopes, unusual surface configurations, tendency to periodic flooding, poor drainage, unsuitable soil or soils, and inadequate capacity for sanitary sewer disposal, the Planning Board may withhold approval of such lot or lots.

The proposed lot is impractical – flag lots and spaghetti lots have been discouraged by the Planning Board on numerous occasions. There are many large rocks and slopes, and several areas where the water flows and the ground is very wet many seasons of the year. I was told by Sam MacCreighton, who did the site work for the house that Peter Moyer built, that more than once, trucks had to be pulled out from the area behind the house where Ms. LaBelle lives, and that the building of the tennis court/basketball court was extremely difficult because of the water. I live on the top of the hill, and the sump pump in my basement runs quite a bit. The house where Ms. LaBelle lives had to have a French drain put around it in the past.

Town of Warner, New Hampshire 1999 Master Plan

Chapter II: Statement of Goals and Objectives

Goal 1: Conserve and Protect the Natural Resources of the Town

2. Encourage the use of sound land management practices for forest and land to promote diverse wildlife habitat.
3. Protect scenic ridgelines and hilltops, and encourage the responsible use of Mt. Kearsarge.

Goal 2: Provide For the Orderly Growth and Development of the Town

1. Avoid the premature subdivision of lands.
2. Provide for a balance between the use and the development of land and the preservation of open space.

Chapter V: Housing

Recommendations:

To maintain the rural character of Warner, new housing developments should be encouraged in residential areas, as identified in the Future Lane Use Map. These new developments should be directed to areas which will minimize the cost of expanding Town services while making more efficient use of existing services, especially the existing water and sewer systems.

Conclusions:

Based on the analysis contained under Housing Availability, a more than adequate amount of land has been set aside to accommodate the anticipated housing needs of Warner through the year 2020. For individuals and families who can afford market price housing and who do not have special needs in housing, Warner has allocated sufficient area for residences.

Chapter IIX: Natural Resources

Unfragmented Blocks of Habitat

Unfragmented blocks of habitat are those large pieces of land with no roads and few or no human structures. These blocks provide some of the most important long-term wildlife habitats. Within these areas contiguous natural habitats supporting a diverse array of native wildlife can usually be found, ensuring that species common to the area remain common. The variety of habitat conditions also support wide ranging species such as moose, bear, fisher, and bobcat, which cannot survive in a fragmented landscape.

Wildlife Travel Corridors

Wildlife travel corridors is a term used to describe a variety of different habitats that allow the movement of wild animals over both short and long distances. Wildlife often travel among feeding, watering, and resting areas along the same path. These travel corridors develop in areas where animals feel secure in their movements. For deer it may be a strip of pine or hemlock through a hardwood forest, for a rabbit it might be a row of shrubs between two fields. Medium and large mammals follow natural features like streams and ridge lines and generally take the path of least resistance, often using wood roads to move.

There is a large variety of wildlife in the area of the proposed subdivision. I have seen moose tracks, deer, bear, and fisher. After a rain, salamanders are abundant. There are also many Lady Slippers in the forest, and the mammals use the trails for travel. There are no snowmobiles in the woods behind the houses, so it is quiet and peaceful.

When planning to provide wildlife corridors, it is important to look at the distribution of conservation lands in the town and work on connecting these protected areas to support the movement of wildlife between these areas.

Because of the large lots below, that face on North Road, and the currently large lots along Kearsarge Mt. Road, there are no "houses behind houses" and the human impact on the land has been minimal, allowing the coexistence of animal and man to continue.

 

Chapter X: Future Land Use

Introduction

One of the major desired outcomes expressed during the master planning process, from community input from the survey and committee discussions, is the importance of preserving the rural character and natural resources of the Town.

Residential Development

…Concentrated high-density development should remain in the downtown village area, since this is where town water and sewer services are located. Medium density development should be focused in the immediate vicinity of downtown and along Route 103, where medium density development currently exists.

Low-density residential development should be located in all other areas of Town, but limited to existing road systems. To protect valuable unfragmented open spaces, conservation land, and wildlife habitat corridors, a 500-foot maximum set back from the road should be required for all low-density residential development. This will prevent the further fragmenting of valuable open spaces and wildlife habitat.

The proposed house would be well over 500 feet from Kearsarge Mt. Road, within "valuable open space and wildlife habitat."

Kearsarge Mountain Watershed

Existing Land Use

There is some low-density residential development along Kearsarge Mountain Road. More than half of this area, 3,630 acres, is conservation land under State, Town and private ownership.

Future Recommendations

Connect the conservation areas located within this watershed with the large amount of unfragmented lands in the southern half of Warner.

Protect ridgelines through ridgeline protection ordinances.

Protect the aquifer from over-development through an aquifer protection ordinance that minimizes impervious surfaces and limits the type of activities within the aquifer protection area to those which do not use hazardous materials.

More houses, more people and more cars and oil and propane and gasoline.

Appendix A: Master Plan Survey with Tallied Results

What are your greatest concerns for the future of Warner?

In order of number of votes:

1. Maintain present small town character

1. Future growth to be well planned, thought out, and controlled
2. Future growth will be out of control
3. Taxes – losing control of property tax
4. Loss of natural environment
5. Overcommercialization of village
6. Preservation of wild lands

I moved to Warner in September 2000 because of the house that I now live in – I didn’t know anything about Warner until I moved here. I fell in love with the house and its setting, and didn’t look any further. My love for the Town followed soon thereafter. No one, looking at the placement of my house and that of Ms. LaBelle’s house, pool and pool house would ever imagine that another lot would or even could be allowed between the two residences, especially in a Low Density Residential area of town. Additional light from a residence down the hill is a concern not previously addressed. A driveway so close to my house is a concern. Removal of stone walls to create a driveway is a concern. Removal of existing trees for the construction of the driveway and house is a concern – for their natural beauty and for the buffer that they provide. Clearing down the hill for the construction of a house would decrease the buffering of noise from I-89. Sounds travels in an upward direction, and noise from a house that close would come right up the hill. For these reasons and those stated elsewhere, it is my professional opinion as a licensed Realtor in Texas and New Hampshire that this would significantly decrease the value of my house as well as those of the other abutting property owners.

The reasons I have stated for the denial of the proposed subdivision by the Planning Board are based on deeds, Board decisions, Zoning Ordinances, Town regulations, and information taken from the 1999 Master Plan. This Master Plan was prepared by the Warner Planning Board and the Warner Master Plan Steering Committee, and was adopted following a Public Hearing.

Members of that Board and Steering Committee who are currently on the Planning Board are: Barbara Annis, John Brayshaw, Derek Pershouse, and Andrew Serell. That this Board would grant approval for this subdivision, in light of ongoing Growth Management meetings and the general concern for the future of Warner’s smart growth, would be very hard to understand or justify. I ask that you be able to justify the seeming disparity between the goals set out in the Master Plan and the subdivision plan before you tonight.

Abutter: Rick Davies and Tina Shirmer, 291 Kearsarge Mt. Road

Mr. Davies showed the Board, on the plan, where his property is located as well as the properties owned by Walter O’Neal and Suzanne Bouchard. He stated that the closest house to where there are some test pits on the second drawing is not an abutter, but it is Mr. O’Neal’s house.

Mr. Davies: I agree with what Sissy said wholeheartedly. I have gone over the Master Plan and agree with her findings. A further point is that a house behind multiple existing houses is inconsistent with the layout of the land as it comes out from Perkins to Gartrell to Davies to O’Neal, Bouchard, Brown, continues past Runaway Farm. The property layouts have been very straightforward and very systematic. The proposed lot has the appearance of being forced at every location to fit within the guidelines as interpreted by the applicant. Yes, there is frontage here. But then it immediately narrows down to a line that appears to be 75 feet and then gradually opens up. On the second drawing, which shows the test pits and some of the contours, the test pits are here. One of the test pits isn’t measured here, but I can pace off 24 feet from our common boundary stone wall. It’s about 24 feet from my land. This is about 1500 lineal feet, as I scale it, from here up to Kearsarge Mt. Road. The raise in elevation is from 700 feet, the area of the test pits and the vicinity where I assume the house would be, to 820. It is about a 120-foot differential – very substantial. It is about a 2000 foot long piece of land, and at about 500 feet from the road it narrows to 75 feet in width. That, in my point of view, is forcing it – to look at this as a subdividable piece of land.

Other points made by Mr. Davies:

1. Opposed to the subdivision of the land

2. Wildlife corridor: bear, moose, deer, fisher, hawks nesting in the area

3. Wetlands and vernal pools – salamanders

4. Test pits – there are 4 shown on the plan. There appears to be ledge, and close to the area where the test pits were done is an area where it drops about 60 feet and stays wet most of the year. Concern about disruption of existing underground water.

5. Proposed plan inconsistent with his survey plan. In his opinion, it is an incomplete drawing.

6. Extreme cost associated with a 1500 foot driveway, bringing in electricity, cable TV, and the cost of working with the existing ledge.

7. 500 foot setback mentioned in the Master Plan – the test pit area is approximately 570 feet from Kearsarge Mt. Road

8. Concerns about fire safety. No good way to get fire equipment into the area. Should be checked out with the Fire Chief because of prevailing winds and potential for forest fire.

Summary: Forced lines of this proposed subdivision aren’t consistent with the area, aren’t consistent with the guidelines as set forth in the Subdivision Regulations that encourage perpendicular lot lines, and very inconsistent with the intention of the Board so that they don’t get into spaghetti sites – which I interpret this to be. It does widen out, but it’s use it just to circumvent the proper subdivision procedures for the Town.

Abutter: Tina Shirmer, wife of Rick Davies.

Opposed to subdivision. Reiterate that this is a large piece of green area, and that the Town has been very concerned with growth and the future expansion of green spaces. This is basically an uninterrupted green space that continues all the way up to Mt. Kearsarge.

Abutter: Suzanne Bouchard

I feel the same as Tina. I’m very concerned about New Hampshire because I love it dearly and I hate to see all of that beautiful green spaces overdeveloped. I’m also a great lover of wildlife and domestic animals and didn’t realize that this was such a wildlife area before discussing it with my neighbors.

Abutter: Mary Phillips

Opposed to subdivision. Green space shouldn’t be developed.

Abutter: Tom Baye

Opposed to subdivision. Agree with what has been said by other abutters.

Member of the audience: All of the lots that were subdivided by Peter Moyer, that face on North Road, have the same deed restriction/covenants that state that they can have only one house on each lot.

Ann O’Neal: Daughter of Walter O’Neal, who live on Kearsarge Mt. Road.

Opposed to subdivision. Where else can you look out of your kitchen window and see 12 deer that have just come from the place where this house is proposed? It is a beautiful area. In the winter, when the leaves are off of the trees, we will see that house.

Walter O’Neal: The wildlife will disappear if this is allowed to be developed.

Ms. Shirmer: I find it ironic that people from the same neighborhood have the same ideas and concerns that they did over 24 years ago. The people that live in Warner want to live here because certain things are important to them. Obviously, the open space was important to these people 24 years ago and it is still important to all of us who live up there now. I think that we have to consider the feeling of the town and why people live here.

Mr. Davies: In listening to abutters’ comments and those of others, people nearby are all opposed to this proposed subdivision for the stated reasons.

Ms. Annis closed the Public Hearing and reopened the Board Meeting.

She read letters received from abutters and neighbors that were not present [copies of letters attached].

Response from applicant:

Ms. LaBelle: It is not my intention to build on the front 6.32 acres of my property. I would also be more than willing to put in a clause that no commercial development ever be allowed on that property. That would have a significant impact. As far as the test pits, Mr. Sweet can explain why there were four done. It was certainly not with the intent of building multiple dwellings, meaning multiple septic tanks. It was finding the right place.

Mr. Sweet: It was soil conditions at the site where the sites are shown. It was somewhat shallow to ledge, as the information shows. It was 4 feet, 51 inches and 58 inches. We did three more pits uphill from the 3 that we show – I just called them ledge quotes. The soil conditions are adequate for a sewage disposal system. I’ve been designing the systems for over 30 years. The requirement that used to be 8 feet above bedrock is now 4 feet above bedrock. I think that in a residential district, R2 and R3, where the lots are required to be 2 and 3 acres, that it is acceptable to combine a 17 acre lot and a 20 acre lot. That’s not exactly overcrowding. There was testimony that Mr. Moyer said that he might not subdivide the property, but I don’t anything on the plan that says that the 37 acres can’t be subdivided into lots. As far as a long driveway, some people like very short driveways and some people prefer much longer driveways. There is certainly not a length that is desirable or undesirable. Sometimes to get to a site that you might want to place your house, which is away from the road and in the woods, requires a longer driveway. The restriction to building only applied to the 6.32 acres of land which is basically from that north/south stone wall on the westerly side of Jane’s house to the road. One of the lots that was subdivided in the 1979 plan was subsequently subdivided into two pieces. I think it was 8 acres. It is the southerly of those 4 original lots. It may be that there is a slight impact with the deer coming up so close to the houses on Kearsarge Mt. Road, although I doubt it. But I think that there is quite a bit of corridor left. It is some distance from the site that Jane has picked out and the houses on North Road.

Ms. LaBelle: Another thing that was brought out is what was described as the sight line, and some concern about seeing the roof of the house. I did very carefully walk the land when the trees were bare. I don’t want to look at somebody else’s house anymore than they want to look at my house. I am taking that into consideration. I’m not planning a tall building, but one that is very low profile and one story and somewhat dug down into the slope so that it’s not going to be a 2.5 story thing with towers – it’s going to be very low profile very fitting with the woods, sort of along the Frank Lloyd Wright philosophy of stone and fitting in with the environment. Another thing that I’m definitely considering is the fire issue. It will be stone with a steel roof. Where the house site is planned, there is a significant amount of land left. Concerning the deer, they are often right on my walkway, chewing on my bushes. They don’t seem to be affected by coming too close to houses.

Mr. Sweet: I think that there was some mention of concern about forest fire down in this section. This driveway will provide an access for the fire fighting equipment to get down into that section.

Ms. LaBelle: I think that there was some mention about the clearing that has been done – that clearing was done specifically so that we could get down in there to do the pit tests. The man that was looking at the clearing is also the man who does the plowing, so he is very aware of the best routes down and that it’s not too steep. I have a question – somebody mentioned a 500 foot setback. What was that in reference to?

Mr. Serell: It was a quote from the Master Plan: "To protect valuable unfragmented open spaces, conservation land and wildlife habitat corridors, a 500-foot maximum setback from the road should be required for all low density residential development."

Ms. Annis asked the Board if they had any further questions.

Question: Mr. Reeder: To Sissy or the abutters: On that 6.32 acres, or Tract I, where is that in relation to the subdivision?

Answer: Sissy: I think that it is the front portion of Jane’s lot.

Question: Mr. Reeder: To the Board: If we decide to let this subdivision go through, Tract I becomes not a tract at all because there has been subdivision. Because that is no longer a tract of land, do those restrictions that are placed on it also vanish?

Answer: Mr. Serell: I don’t think so. Whether that portion is described as a tract or not, whatever those restrictions are in the deed run with the land. My understanding is that they cannot build another house on that front section.

Question: Mr. Reeder: Also, on the next part of land –

Answer: Mr. Brayshaw: I think that the only way that you can get around a covenant or release a covenant is by 2/3’s ownership of the original covenant that was established at a given point.

Mr. Sweet: I’m not sure what percentage of original ownership you need. I’d like to pursue your question, but I’m not sure…

Mr. Reeder: You have the original 6 acres, which is Tract I, and you have a restriction that you cannot build on that. We’re subdividing that Tract I, and now it is 4 acres or so. Because it is being cut up or changed from what was the intent of the original landowners, are the covenants that were placed on it now void? Or, because you have also split it up and now the other piece of property – because you are adding on to it or annexing onto it, does that new piece of property take on the covenants of the property?

Mr. Serell: However that 6.32 acres was originally described is still subject to the original covenants. They cannot build more than one house on those 6 acres.

Mr. Sweet: This gentleman is correct. It does not prohibit subdividing the land, but if you were allowed to subdivide it, it doesn’t then increase the area covered by those covenants.

Mr. Reeder: The main access to the land, or the only access from that land to the road, goes through that land where there is some sort of covenant that goes along with it. Are there problems there, or are we looking at something that might bring up problems in the future.

Mr. Sweet: I don’t think there is a problem. There’s a prohibition on building another dwelling in that area.

Question: Mr. Brayshaw: If the plan was approved, would you consider giving the Town of Warner a conservation easement on the remaining property?

Answer: Mr. Sweet: On what remaining property?

Answer: Mr. Brayshaw: Beyond the house lot.

Answer: Ms. LaBelle: I would consider it.

Mr. Serell: The house lot has to be on the back section.

Mr. Brayshaw: Would you consider doing a conservation easement on the back of both lots? I’m just throwing it out.

Ms. LaBelle: I would consider it.

Mr. Serell: Just to get the ball rolling on our discussion, I would be disinclined to approve the subdivision for the following reasons: I think that if you are going to prohibit further subdivision, it should say that on the plan. I don’t think that the minutes are that clear. However, I do think that the proposed lot is inconsistent with the spirit of our ordinance. There is language in the ordinance that the lot, as far as is practical, should have lot lines that are perpendicular to the streets. This isn’t even close to that. It really is a flag shaped lot, which under just about any circumstances I would disfavor that type of lot being created. I think that even more important is the language in the Master Plan that was cited, and that I referred to earlier in answer to your question, which is we have set forth in the Master Plan a suggestion that in order to protect open spaces and conservation land, there should be a maximum setback of 500 feet. It looks like any type of residence that you are going to put on this lot is going to be at least 500 feet from the nearest road. I think that was put in there for that reason – we are trying to protect open spaces in this town to the maximum extent possible. By creating a lot of this size where, by necessity, you would have to put the house more than 500 feet from the road is inconsistent with what the Town is trying to do. If we didn’t have the restriction on the front 6 acres and you could put a house on that front part, I think I would be a little bit less concerned about the application as a whole. But with that restriction, you absolutely can’t build a house on that front part. And if you put it on that back part, it’s got to be more than 500 feet from the road. Those are the reasons why I’m not in favor of it.

Mr. Brayshaw: In backing up on that, too, it says that areas of low density should be located in all areas of town but limited to existing road systems. I wonder if that was for Class VI road development.

Mr. Pershouse: You mean limiting that to Class VI road?

Mr. Brayshaw: Yes.

Mr. St.Pierre: Have you given any consideration to subdividing the opposite end? To me, you’ve heard the concerns of the abutters and it seems to me that it is already open and clear to the north, for quite a ways.

There was discussion between Mr. St.Pierre and Ms. LaBelle, while looking at the plan.

Mr. Serell: I think that would, to some extent, addresses the angle issue, but it wouldn’t address the 500 foot issue.

Mr. Orbacz: I think that it is forcing a lot.

Mr. Wallace: I’m inclined to agree that it is forcing a lot.

Mr. Lennon: I have a question – the front yard which is now being cut in half by the proposed line – is that all grass?

Answer: Yes.

Mr. Lennon: Personally, I think the more intelligent lot would be to put a driveway in the little skinny section between the stone walls to gain access to your back and ask for a variance from the 250 foot frontage requirement rather than creating such a bizarre front edge of that lot. And although I, as much as anyone, don’t like the idea of pork chopping, I tend to think that putting one house on a lot hat size, if the original tracts and stone walls can be more or less conformed with, is in fact more or less consistent with many of the discussions we’ve had about putting housing in closer to the village rather than further away from the village with retaining our existing character of the way the streets look. I think that having a house on a big chunk of land that far removed from the street would not interfere with wildlife, would not interfere with people’s use and enjoyment of land. What I really dislike about this is slicing up that yard to create an artificial line to get to 250 feet, which I think is dumb.

Sissy Brown: Can I say one thing about your suggestion? That is the only buffer of trees between my land and her land, and if you’re going to cut those trees down to put in a driveway [between the stone walls], there won’t be any buffer at all between my house and where you’re suggesting that the driveway go. They might as well come onto my property.

Mr. Lennon: I don’t think that it is necessary to cut all the trees to put a driveway in.

Ms. Brown: If you see it, you’d understand. That is the buffer, right there.

Ms. LaBelle: The variance wouldn’t necessarily dictate where the driveway would go. The driveway could go in one of two places, in any case. In other words, on one side of the rock wall or the other.

Mr. Lennon: I’m not suggesting that anyone else on this Board would have any ghost of support for a variance. But that’s my thought – that it would more sense rather than slicing a front yard which now conforms to the existing stone walls and the old tract layouts.

Mr. Brayshaw: I’d almost be for granting a road easement, off of a common driveway. It looks absurd, really. I hate to say that, but it really doesn’t conform to any lot I’ve seen around town.

Ms. LaBelle: One thing that I really want to make clear is that whatever covenants or clauses or restrictions that need to go in, I want that front meadow left the way it is. I don’t want someone in the future to come in and decide that they want to put a row of trees right along that property line. I would put in a clause that the front meadow is to stay as it is, to look as it is. It is certainly not my intention, and I wouldn’t want in the future for that line to be visible.

Mr. Brayshaw: What is wrong with coming off of a common driveway and squaring off a lot here, and keeping that as conservation land?

Ms. LaBelle: It is a possibility, although it is sort of an unnatural land for the existing land to have it jump over to here, but I do see your point.

Mr. Pershouse: I’m interested that we’re pursuing an alternative solution, and I’d comment that if there is to be a subdivision, going over to the other side would create some new problems, but it would certainly be the lesser of two evils. It puts a greater burden on the applicant in developing the site, but it does answer the issue of this very strange lot and one that I would have a difficult time supporting and apparently so would a lot of other people.

Ms. LaBelle: Even considering that there would be restrictions to keeping that front meadow as it is?

Mr. Pershouse: I understand that restrictions would protect the visual component that we’re all discussing tonight, but from the zoning and the Planning Board and the Master Plan point of view, and all of the elements that have been presented tonight, I think that it is really important – for the Town’s sake – to protect the intent of the configuration of building lots. I’m not in favor of that lot configuration, and I gather that others here are not as well. And if we’re looking at an alternative, that might be a solution for the Town and the owner. I don’t know, but that is a whole new issue that we need to explore.

Ms. LaBelle: One thing that I think of right off is that if you were to go in from the Runaway Farm side and across, you would actually be impacting those deer trails more rather than less because the driveway would be longer running across the back there.

Mr. Pershouse: We’ve heard both sides, and either way you’re going to have interruption of the land.

Question: Mr. Reeder: Is there a reason why the house has to go in that position, where you have the test pits done now?

Answer: Ms. LaBelle: It is a good spot. It’s low enough that it’s not impacting the other houses. It gives a bit of a view, it is quiet. So there are aesthetic reasons.

Question: Mr. Reeder: I have a feeling that the whole property is going to be quiet. Where you have lot 1, the 20 acres there, if you take 6 acres off of there and you split the remaining in half – are there buildable places on the lower half? That way, both properties have enough acreage?

Answer: Ms. LaBelle: It does drop off there, doesn’t it?

Answer: Mr. Sweet: You have about a 20 foot drop, where the R3 and the conservation line is.

Mr. Reeder: It seems to me that you could build in that lower area and you would have less opposition from the abutters because you’re not putting a house in back of their houses – only in back of your house. And it helps maintain the character of stone walls and open fields. Deer don’t have a problem with crossing driveways.

Mr. Pershouse: I think that the Board should consider prioritizing the issue of a no further subdivision that came up and whether it is technically valid. I think that we should go down that route before to looking at alternatives because if we need to take that into consideration in respect to the intent of former owners I think that needs to be number one before we look much further. I would suggest that the Chair consider a motion to continue this to the next meeting and I would also suggest that the Board conduct a Site Visit between now and the next meeting.

Mr. Serell: What was the first part of your statement?

Mr. Pershouse: The intent of the former owners; in other words, whether or not it is on the print. I think that needs to be a consideration and I think that needs to be put to rest before going into other issues such as alternative ways of subdividing or accessing the current subdivision.

Mr. Serell: What would we do to put it to rest?

Mr. Pershouse: If the intent of the former owners wasn’t documented in the form that we do it now, on the print or in the words of the decision and so on, I don’t think that necessarily invalidates that intent. To me, it is significant and shouldn’t be dismissed as, "Well, it’s technically not correct and we can’t consider it."

Mr. Serell: Are you suggesting that we need to do more inquiries into that? Because we have a letter stating what the intent of the former owners were, so I don’t know what more we need to do.

Mr. Pershouse: I’m wondering if we, as a Board, should weigh that issue before we more any further. I also think that we’re running out of time here. And I think that a Site Visit would be very helpful to all parties.

Ms. Annis: I know that times have changed and ideas have changed. Doug, you being in the surveying business know as well as I do that you went by the spotted tree and you went by the old hog den in deeds, and so forth. I’m just questioning – and I haven’t gone back and researched this – but many times things were done and not required to be on site plans and not required to be on subdivisions. It was in the minutes and that’s the way it was. Now, we have to have the minutes verbatim because of all of the things that are going on. So I’m just wondering that because it’s in the minutes that it shouldn’t be further subdivided and that it is not on the plan that it shouldn’t be further subdivided, if that is the way things were back in 1979. I don’t know. But I think that should be taken into consideration because times do change.

Mr. Pershouse made a motion that the issue be continued until the next meeting and that a Site Visit be conducted between now and then.

Mr. St.Pierre asked if the Town attorney should be asked if the minutes of a former Board are binding or not. Mr. Pershouse stated that would be part of his motion.

Restated: Mr. Pershouse made a motion to continue the discussion on the subdivision application until the July meeting, conduct a Site Visit before that meeting, and have the Town’s attorney state whether a decision stated in the minutes of a former Planning Board are binding if the plan does not state that decision. Mr. Wallace seconded the motion. The motion passed by a majority vote.

A site visit was set for Saturday, June 14^th, at 8:30 a.m. at 355 Kearsarge Mt. Road.

Mr. Sweet requested a copy of the comments/presentation given by Ms. Brown, and was given a copy.

The Board took a 5 minute recess.

Bob Carpenter, T.F. Bernier, Inc. and Mark Feenstra for R.A.W. Investments, P.O. Box 596, Newport, NH 03773. Construction of 2 office buildings, one on Lot 4-1 (1.484 acres) and 1 on Lot 4-2 (1.647 acres), Map 35. Property located on Route 103, West Main Street, Exit 9 off of I-89.

Mark Feenstra, R.A.W. Investments

Ms. Annis: Before we get started, we have a problem that we need to address. It came to light at a meeting between the Board of Selectmen, Conservation Commission, Parks and Recreation, Planning Board, and the Zoning Board of Appeals. A member of the Conservation Commission asked if we had received an easement on the property. The
Assessing Clerk said that one had been received and retrieved a copy. It says very specifically that RAW would give a conservation easement on Lot 3. The easement that we have in hand and that the Board of Selectmen has signed is from Warner Development, LLC. It was signed by Mark Feenstra for RAW Investments, Inc. That is crossed out and written in is Warner Development, LLC. I will admit that somebody signed the subdivision with the understanding that an easement had been signed with the understanding that an easement had been granted to the Town of Warner by RAW. We have no records that they fulfilled their obligation, thus making it a legal subdivision. My question is how we can address something that may not be legal. Who is Warner Development?

Mr. Carpenter: This has been explained at some length, and I’m not sure that it is relevant to the application.

Mr. Feenstra: It was basically done for tax purposes.

Ms. Annis: It was specifically stated that the subdivision requirement was that RAW give a conservation easement. Why the Board of Selectmen signed an easement from Warner Development, LLC, I don’t know.

Mr. Feenstra: It was discussed with the previous Chair, and he drew up the previous document and everybody signed it. Why is it an issue now?

Ms. Annis: Because I am the Chair now, and because I could give an easement….

Mr. Feenstra: An easement is an easement, regardless of who gives it.

Ms. Annis: The Conservation Commission Chairman is here now, and he is very upset about this.

Richard Cook, Chairman, Conservation Commission: The easement has to be granted by the landowner, and we have no indication that the ownership of the land has changed. So the easement as it is written now is not valid, in my estimation.

Ms. Annis: If the easement is not valid, then how can the subdivision be valid?

Mr. Serell: Who owned the land at the time of the subdivision?

Mr. Feenstra: It is one and the same.

Mr. Serell: We need to get the documentation, but I assume that RAW owned the land at the time of the subdivision.

Mr. Feenstra: Correct.

Mr. Serell: Then RAW transferred their interest in the land to Warner Development.

Ms. Annis: They didn’t.

Mr. Serell: That’s what we need to see.

Ms. Annis: It’s Lot 3 that we’re talking about. They can’t transfer any of the land until the subdivision has been approved. And the subdivision can’t be approved until RAW gives an easement, and they haven’t – someone else gave an easement.

Mr. Serell: What you’re saying about not being able to transfer until it has been approved – I don’t know if that’s true or not.

Ms. Annis: It was a condition.

Mr. Serell: But they could sell the entire parcel of land to another entity without there being any subdivision approval. The real issue is who owned the land at the time the easement was granted. If we don’t have adequate documentation on who owned the land at that time, then we need to get it.

Ms. Annis: I know that RAW owned the land and still owns the land – they’ve never transferred it – yet we have an easement under the Warner Development, LLC name.

Mr. Serell: Then we don’t have a valid easement.

Mr. Feenstra: It was done for tax purposes only. One’s a corporation and one’s an LLC. For it to pass through, I gave the easement through the LLC for a tax write off.

Mr. Serell: Does the LLC own the entire parcel of land?

Mr. Feenstra: No. RAW just granted over to Warner Development, LLC. We were going to change everything over to Warner Development, LLC anyhow.

Ms. Annis: But that’s not even what is on the Site Plan.

Mr. Feenstra: We’re just waiting until we get all of this done. It is the same ownership. Nothing changes. It is for tax purposes.

Mr. Serell: We either need an easement from RAW, or we need documentation showing that Warner Development, LLC now owns the entire property.

Mr. Carpenter: My understanding – and correct me if I’m wrong – when I spoke with Derek about this earlier, is that RAW had granted the easement to Warner Development, LLC, who subsequently granted the easement to the Town of Warner.

Mr. Reeder: But we don’t have any record of that transfer from RAW to Warner Development, LLC.

Mr. Serell: I don’t think that works. I think that the entity that owns the land needs to give the easement. I don’t think that the entity that owns the land can grant an easement to a third party who then gives the easement to us.

Mr. Carpenter: In law, it’s protected either way.

Mr. Serell: I don’t know about that.

Mr. Carpenter: If I gave you an easement over anything that I own right now, you can do as you choose. You can reconvey that easement to somebody else.

Mr. Feenstra: I checked it out with my CPA and my attorney, and he said that this is the way to do it.

Ms. Annis: This [Mr. Serell] is an attorney that you’re talking to now.

Mr. Feenstra: My attorney is the one who directed me to do it this way.

Mr. Cook: I believe state statute limits the holding of Conservation Easement to either a state agency or a non-profit organization. He can’t give a Conservation Easement from RAW to Warner Development, LLC, because it’s not a state agency or a non-profit organization. It has to be from the landowner to a non-profit or a state or municipal agency.

Mr. Serell: That makes sense to me.

Mr. Brayshaw: Didn’t Steve Virgin work with Ray Wentzel on this? I worked with Steve Virgin to get that conservation easement into the Selectmen’s office and Steve was still working out the details with Ray Wentzel.

Ms. Annis: But you, as a Selectman, just signed an easement from somebody that didn’t own a piece of property.

Mr. Feenstra: But we did. That piece was just transferred.

Mr. Serell: But an easement is not a piece.

Mr. Feenstra: It is a piece of.

Mr. Serell: And easement is a restriction put on property.

Mr. Feenstra: So we won’t develop it. You guys have a right of way to walk down in there.

Mr. Serell: But RAW could not transfer that piece of property to another entity before the subdivision was approved – I agree with that part.

Mr. Feenstra: Which we didn’t.

Ms. Annis: You did.

Mr. Serell: And I don’t think that you can grant a Conservation Easement to a non-governmental entity. So I think that RAW either had to give us the easement directly, or they could have transferred the entire parcel of property to another entity who could then, in turn, grant the easement to us.

Mr. Feenstra: Would you rather we do it that way? How do you want it done?

Ms. Annis: I think we have another complication. Ed Mical is the FEMA Director for the Town.

Mr. Mical: And I’m also one of the Selectmen. In the Notice of Decision, October 16, 2000, it specifically states that the applicant complete and file a Special Flood Hazard Permit with the Building Inspector of FEMA. I checked with the FEMA office this afternoon, and there is no record of anything being done. So, in the eyes of FEMA, this is still in a Special Hazard Area and you must do everything to comply with a Special Flood Hazard Area for this property. Unless it’s been forwarded to the office in Washington…

Mr. Carpenter: I believe we have a letter from LOMA that addressed that, and the procedure that you’re referring to, FEMA, only permits correction of an inaccurately mapped area.

Mr. Mical: No, this changes it out of a Special Flood Hazard Area. That still is considered to be in the Special Flood Hazard Area. The idea of putting the fill in was to raise it above that. They don’t have a record of it being raised.

Mr. Carpenter: When they have defined that, it is based on a certain elevation – that’s why it was raised up above that. I know that there was conversation – I wasn’t personally involved, so I can’t say exactly what was involved, but I know that it was pursued with FEMA, and the response that came back was that there was not a methodology in order to do what you’re talking about.

Mr. Mical: That’s funny, because there was another entity, on Waterloo Street, that came in with the same idea, and that one is on record with the Region 1 office. When I talked with that office in Boston this afternoon, they have nothing on record for the Exit 9 area.

Mr. Feenstra: Is there a building on that lot?

Mr. Mical: Not yet, but there is going to be.

Mr. Carpenter: You’re bringing up things in the approval that were believed to have been met, and the subdivision went through on that basis.

Mr. Feenstra: And Provan & Lorber, the people that you hired, accepted that as well. We researched that – I remember discussion, being here.

Ms. Annis: I’m new in this position, and so…

Mr. Mical: Do you have documentation of the submittal to FEMA?

Mr. Carpenter: I can’t answer that. As I told you, I know that there was conversation with them. To my recollection, from having seen a letter at some point, I believe that the response came back that that was not the appropriate action.

Mr. Mical: I have to call them back tomorrow and tell them what is going on.

Ms. Annis: I have a suggestion for the Board tonight. It’s not going to be my decision; it is going to be a Board decision. Under the circumstances, do we proceed to hear this tonight? One of the things that you have to keep in mind is that if you hear this tonight, the clock will start running. If we hear it and we accept it, the clock will be running. I don’t know how you feel it and what you want to do.

Mr. Reeder: I have a problem with both issues that have been brought out. One is about the Conservation Easement and that the proper documentation that has not been passed or is not proper. I would like to get confirmation from some attorney that it is proper. I feel that it probably isn’t proper. The other issue with FEMA, I’m not sure what all it entails.

Mr. Carpenter stated that the plans are complete as submitted. The original plans still needed some additions, but they were submitted and the ones before the Board are complete.

Mr. Feenstra: If you build a building in the flood plain, then you have to have flood insurance. Once a building is in place, then you have to have flood insurance. When we start to build, I believe that is when we have to file with LOMA. We’ve discussed this in great detail with Provan & Lorber. It was said that it wasn’t required until the building physically went on the site. Once we establish where the building is going to be, then we file the elevations that show that the building is clearly out of the flood plain. That was my understanding when Tim Bernier was here, prior to Bob. Everybody agreed on that. Now you’re going back and saying, "No, we don’t want it that way. We want it this way." There has to be some consistency here. It seems like you make one decision and then overturn it two months later. That’s not consistency.

Ms. Annis: Are you saying that it should be in the minutes of our meetings?

Mr. Feenstra: We had checklists. We hired Provan & Lorber. We had checklists and we went over those checklists three or four times.

Ms. Annis: With Provan & Lorber?

Mr. Feenstra: And the Board.

Mr. Pershouse: Those checklists are the final determinator on whether it was complete.

Mr. Feenstra: You guys must have those in your file. It was in December or January.

Mr. Pershouse: We were working on it in December, and it wasn’t approved until January.

Ms. Annis: I don’t have one. I don’t have a final report from Provan & Lorber – I don’t have anything.

Mr. Brayshaw: I know that Provan & Lorber did submit it in conjunction with CVL out of Manchester.

Mr. Carpenter read from a letter dated November 2002 from Provan & Lorber, pertaining to Item 3 which deals with LOMA. It stated that "the applicant has provides sufficient comment that this item is complete for the current level of site development." The letter states that, "The LOMA application is only applicable to existing structures or parcels of land that have not been elevated by fill. Therefore, the condition was met and no action on the FEMA is required."

Mr. Serell: I thought it has been elevated.

Mr. Feenstra: It has been, but if we were to build a building in the flood plain, that is the time that we would file with LOMA so that we could get flood insurance. I run into this in residential lots all the time, on lakes. They always ask for flood certifications. If they come back and are in a certain zone, then they are required to have flood insurance.

Ms. Annis: Ed, you might want to have a copy of this letter dated October 16^th from Mike Todd, who worked for Bernier, and it went to Michael Duffy of Provan & Lorber. "The Letter of Map Amendment, LOMA, as requested in the Notice of Decision dated October 16, 2000, does not apply to this project at this time. The LOMA application is only applicable to existing or parcels of land that have not been elevated by fill."

Mr. Mical: All we have is a letter from FEMA stating that the existing structure or parcel of land that has been elevated by fill would not be inundated by a base flood.

Mr. Feenstra: There is no existing structure.

Mr. Mical: No, but according to the guy I talked to, this is still considered to be in the flood plain – whether you filled or not. Their information indicates that it is in the flood plain unless documentation is submitted to them stating that it is no longer in the flood. That is where a Letter of Map Revision would come in.

Ms. Annis: So whose responsibility is that? Is that up to the developer?

Mr. Mical: They should have gone through it.

Mr. Feenstra: As soon as we decide where the building is going to be, then it is my understanding that is when we file it showing that the building is not in the floodplain.

Mr. Annis: So that still leaves the question of the Conservation Easement and the fact that it was not from RAW.

Mr. Serell: The real question, to me, isn’t that it wasn’t from RAW, or that they couldn’t transfer the property to someone else who could have granted the easement to the Town. The real issue is that the only entity that could grant the Conservation Easement is the real owner of the property. The new entity, Warner Development, LLC – if they didn’t own the property at the time, they couldn’t grant the easement.

Mr. Feenstra: So if we change the entire property over to Warner Development, LLC, would that be ok?

Mr. Serell: If it was done in a deed.

Mr. Feenstra: If it were done in a deed, would that confuse anybody?

Ms. Annis: Yes.

Mr. Feenstra: The reason we didn’t do it is because we didn’t want to confuse anybody.

Ms. Annis: Because it is a condition of the subdivision that RAW gave the easement.

Mr. Carpenter: As this gentleman pointed out, the entire subdivision could be sold to somebody else. The subdivision approval runs with the property, not with the applicant. RAW could have sold the entire parcel to somebody else, and you wouldn’t get an easement from RAW.

Mr. Pershouse: But at the time that the subdivision was being approved, RAW was, in fact, the owner and it is my understanding and the new corporation…

Mr. Feenstra: But there is a lag there because we gave you an easement and you didn’t like the wording. We gave it to the previous Chairman, who took it and you guys revamped it completely and changed it to Warner Development, LLC.

Ms. Annis: The Town of Warner changed it?

Mr. Pershouse: We didn’t change it – you wrote it in.

Mr. Feenstra: I wrote it in, but you guys retyped it over for me. You should have brought it up at that time and I would have said, "Fine" and reverted back to RAW. Here we are in June, six months later, bringing it up now? That’s inconsistency.

Mr. Serell: It is you guys that are giving the easement, and you should know who owns the property.

Mr. Feenstra: It is one and the same.

Ms. Annis: I’m not going to apologize – I’m a stickler. I’m a detail person.

Mr. Feenstra: That’s good, but you should have been a stickler back in January, not June.

Ms. Annis: I agree.

Mr. Serell: But it’s more than being a stickler. If you own the property, you should know the name of the entity that is the legal owner of the property and that should be the entity that grants the Conservation Easement. We need the full property to convey the easement.

Mr. Feenstra: We didn’t do it that way – we just did the easement portion of it.

Mr. Serell: I don’t think that you can do that.

Mr. Feenstra: If that’s the case, then I was instructed wrong by my CPA and attorney.

Mr. Pershouse: We really need a simple solution that answers it for all time, whatever that takes. I think that we need a clear-cut statement, on the record, that he is going to do whatever with the easement document, when he is going to do it, and then we make a decision.

Mr. Feenstra: If you want that easement done over from RAW Investment Trust, Inc.? I can do it tomorrow.

Ms. Annis: Yes. And it will be in the Selectmen’s Office for them to sign under the correct title, and it will be recorded before the next Board meeting in July.

Mr. Feenstra: Yes, I will.

Mr. Cook: If this parcel has a mortgage on it, it is also required that the bank sign a release.

Mr. Feenstra: There is no mortgage on it.

Mr. Serell: I would also like to add that when he brings us that new easement that he also brings us a copy of the existing recorded deed showing that RAW owns the property?

Mr. Feenstra: That’s fine.

Ms. Annis: OK. Please proceed, Mr. Carpenter.

Mr. Pershouse: I think it would be helpful for all parties if you would write a letter to the Town or to the Planning Board – just a very simple letter stating who Warner Development, LLC is. I personally would like to see that on record so that we don’t have to go through this again in the future.

Mr. Feenstra: Once we get this approval in place, is it ok to then put this into an LLC? RAW owns several properties, and we were instructed by our attorneys to separate each individual property into separate names in case of lawsuits, etc. That is why we chose Warner Development, LLC. When can I turn that over to the LLC? Should I wait until approval of the building before I turn it over? Because it is one and the same owner.

Ms. Annis: Are all of the parcels going to be under one name? Because the application is under RAW.

Mr. Feenstra: Then I’ll wait until the buildings have been approved.

Mr. Pershouse: That is consistency.

Mr. Feenstra: It wasn’t done to be misleading or anything on my part; it was just for tax purposes.

Mr. Pershouse: But you will send us a letter just stating who…

Mr. Feenstra: Yes, it is on record with the state.

Mr. Carpenter: Mr. Wentzel has decided to build 2 buildings on this property, on Lots 4-1 and 4-2, which is located at Exit 9 across from the Park and Ride. Lot 4-1 is 1.48 acres, and Lot 4-2 is 1.647 acres. The site is in a C1 commercial zone and is on West Main Street, also known as Route 103. We have municipal utilities, including water and sewer, that are in the vicinity and which will serve the site. There will be 10,000 square feet in each building, and they will have full basements. Each building will have 1 tenant that will take up a half of each building. Each building will look the same. Front of the buildings will be at road level. Basements will be used for storage for tenants. The buildings will share a common driveway. They will share the access and routing areas, which are down in back of the buildings. The front of the site will be brought up to approximately the curb level of the road. Elevation: 433 feet. It will then drop down to a full exposed basement in the back, which will serve as a loading area for the buildings.

Information presented on the proposed buildings:

1^st building: 1 office space of 5,000 sq. ft., 2 office spaces of 1,230 sq.ft. each, 1 office space of 2,500 sq.ft.

2^nd building: 1 office space of 5,000 sq.ft., 2 office spaces of 2,500 sq.ft. each

• Lot 1 – parking in front, 32 parking spaces. 17 spaces in the rear
• Lot 2 – 34 parking spaces in front, 4 in the rear
• Sewer lines extended to the building, stubbed off for Lot 3
• Sewer line will run parallel to the building junction, go out and pass under 103 and follow 103 to the Town’s pump station by MacDonald’s
• Gravity feed system
• 6-inch service line to buildings
• sprinkler systems in buildings
• Grading: sloped down, 4 to 1 grade with a swale
• Swale will run behind Lot 2 and into the riffraff for treatment area
• Could have up to 8 tenants total
• Pitched roof
• Shared basement access
• Driveway centered between two buildings for better access for trucks to get to the back of buildings.
• Trees and shrubbery will be used, but visibility will be major concern and focus when planning landscaping
• Trees mix of deciduous shade trees: locust, maple, ash and pear.
• Ornamental trees: crabapple, Hawthorne, Japanese tree lilac and possibly birch
• Low perennial plantings spread around for contrast
• Lighting will be done in conjunction with the landscaping, but using a "shoebox" type of structure.
• Light standards centered at the pavement areas and directed onto the sight
• Lighting under covered walkway will spill out and help to provide additional lighting
• Light poles in the rear area placed in appropriate areas – 5 poles at the current time
• Signage: one master sign board to serve both buildings
• Soft down-lighting on sign
• 4-lane driveway, 2 in and 2 out to provide directional flow
• No central median proposed
• Need 2 permits from the State, and are in process: driveway permit from DOT, and Site Specific Permit

Question: Mr. Pershouse: I don’t think that the walkway is going to be effective. People will have to step down off the curb to get around. What type of lighting will be in the soffets?

Answer: Mr. Carpenter: That hasn’t been decided yet, but I don’t think it will be florescent.

Question: Mr. Pershouse: Can we have a serious discussion about the walkway? I have recently looked at some other buildings for the purposes of design, and the 10-foot walkway works well. There is room for doors to open and for people to pass, and protection from snow that blows in there. I know it increases the roof line. I think that cutting into the rentable space is offset by the convenience of having the 10-foot walkways.

Answer: Mr. Carpenter: I’m not responsible for the design of the buildings, but I don’t see this as a high pedestrian area.

Answer: Mr. Feenstra: This is a destination area, and shoppers will be coming directly to the stores and then leaving.

But we will look at that.

 

Mr. Lennon: Our first formal action is whether or not to accept this plan as complete, and I see at first glance several places where it’s not complete. So instead of getting into technicalities moving toward approving the plan, I would like to go through the areas that we see as incomplete so that we can tell you what to come back with that would make it a complete plan.

What is not complete:

1. Landscaping plan – native species, and what they are. Deciduous state trees are good, but we only have 5 months of shade around here and perennial, evergreen shade trees would be better.

Mr. Carpenter: I think that your regs actually discourage that and encourage deciduous trees. Also, we had the discussion at the preliminary, which is part of the reason that we didn’t go farther with this – there was some discussion that this was retail space and that visibility was important in retail.

Mr. Lennon: That’s fine – I don’t want to get into the technicalities of it. My point is that I don’t see a complete plan here, and so if you have a complete plan and your plan includes deciduous trees of certain species and the rational for those trees is visibility, that’s fine. But that’s not here now. So we can’t discuss the merits of your landscaping plan or your choice of trees because we don’t have a choice of trees. Also, you mentioned putting perennial beds around and the locations of those beds is part of the landscaping plan.

2. Erosion control Plan: I think that you did a good job in the final plan, but our Site Plan Review regulations require the plan for how you’re going to control erosion during construction. On that site, it is going to be non-trivial.

3. Parking Lot Design: The design that you propose is explicitly not desirable from our Site Plan Review regs. Again, that’s not to say that it can’t be done, but I think that we need a description of why.

Mr. Carpenter: We discussed that last month. Were you here last month?

Mr. Lennon: No.

Mr. Carpenter: It was discussed extensively.

Mr. Lennon: I don’t disagree that it was discussed, but it is part of the Site Plan Review so the discussion.

4. Lighting: Again, I think that you gave a good verbal description of what you plan to put in, but our Site Plan Review regs require more detail than that.

5. Exterior Building Façade: One specific piece that is required is an elevation of all four sides in color. You are 3/4ths of the way there. But you need to turn on the color on your CAD machine.

Mr. Lennon: Bottom line, I could not vote on the plan as complete. But, then, I’m not voting.

Ms. Annis: Good points, though.

Question: Ms. Annis: You were having difficulties locating the sewer lines. Did you ever find somebody that has plans?

Answer: Mr. Feenstra: No, there are no plans.

Answer: Mr. Carpenter: We’re just going directional. We know where the pumping station is and we’re going for it.

Question: Ms. Annis: You talked about the swale and treatment down in back, and runoff. Is this going to be the same type of treatment for runoff that is down at DeMoulas, with the reeds?

Answer: Mr. St.Pierre: Cat tails.

Answer: Mr. Carpenter: No.

Ms. Annis: You have an awful lot of glass showing. Can we break it up? It looks like great big panes of glass. I know that it is retail, but…

Mr. Carpenter: I think that one of the things that helps address that is having it recessed with columns out front. It will break it up quite a lot.

Ms. Annis: And one of the things that I agree with Mark on is the color. We would like to see the color.

Mr. Feenstra: It will be blended in.

Mr. Pershouse: When might you be able to get the landscape plan to us, so that we can run it by a local landscape design person before the next meeting, so that we don’t have to reinvent the wheel.

Mr. Carpenter: Your regulations are very extensive, and require a lot of detail that we can’t just do in a couple of hours. There was some informal discussion at the last meeting that the number of trees out front was too great.

Ms. Annis: I don’t remember that comment, but I do remember the comment about watching for turning traffic.

Mr. Feenstra: You wanted low shrubs. That’s exactly the kind of input we need from you. We said that’s fine, and we’ll do it. What type of trees? Do you want deciduous trees? Do you want evergreens? Do you like that type of layout? Do you have any preference for buildings in the area? New London or Newport? We could drive by them and see.

Mr. Lennon: A combination of evergreen and deciduous trees and shrubs.

Question: Mr. St.Pierre: Do you have an area for a dumpster out there?

Answer: Ms. Annis: There are two areas.

Answer: Mr. Carpenter: Out back. They will be in a stockade enclosure.

Answer: Ms. Annis: Very well hidden.

Question: Mr. St.Pierre: Have you figured out snow removal or storage?

Answer: Mr. Carpenter: Largely, it will be plowed. If we have another winter like this one, we will have to move it. We could use some of the parking area for storage of the snow.

Question: Mr. Orbacz: Will there be any planting around the propane tanks?

Answer: There won’t be a structure around them, but we plan to screen with landscaping.

Question: Mr. Pershouse: I know that it is more expensive, but is there any reason why we’re not going to have underground propane tanks?

Answer: Mr. Feenstra: These are behind the buildings, so they won’t be noticed. We’re going to be in a floodplain area out back.

Question: Mr. Pershouse: Then you could bury them out front. We have an applicant for a propane filling station, and we haven’t approved that yet. They already have a tank farm down there [by Market Basket] and they’re rusted and don’t look good.

Answer: Mr. Feenstra: That’s something to look at, and we’ll check into it. We do have quite a bit of fill out front, so we could do it.

Answer: Mr. Carpenter: We will have enough landscaping that you wont’ see them.

Mr. Lennon: When you come back with your lights, make sure all of the lights point down. That includes those that are out back.

Mr. Feenstra: We know that is a concern, so we will definitely take that into consideration.

Mr. Pershouse: I know that you said that the light poles will be metal. Again, take a look at the wooden ones at Market Basket. They are more appealing.

Mr. Pershouse made a motion to continue the process until the July meeting. Mr. Serell seconded the motion.

Mr. Feenstra asked if they should be part of the process at the work session. Mr. Lennon, Chair of the Growth Management Committee, stated that they were welcome to come to the session if they had specific suggestions because it is a formal meeting of the Planning Board. But it doesn’t have an agenda. Mr. Feenstra said that they could present them with information. Mr. Lennon said that they could have not more than 10 minutes of the meeting.

The next Work Session was scheduled for Monday, June 23^rd, at 7:00 p.m. at the Town Hall.

The motion to continue the Site Plan Review until the July meeting was passed by a unanimous decision.

8. Preliminary Consultation: Site Plan Review

Tim Skillings, Roadhouse Restaurant. Purchase of Cricenti’s building. Change of use.

Mr. Skillings did not attend the meeting.

9. State Building Code – Drew Serell

• The Town Building Code is not in violation of the State Building Code.
• Suggested that the Town Building Code be amended – the BOCA code should be spelled out more
• Should be stated that "The State Building Code is hereby incorporated" by reference
• Someone should look at the Town Building Code and compare it to the State Building Code and see if there are any inconsistencies between the two

Question: Ms. Annis: Do you take it that the State Building Code applies to single family dwellings, commercial, everything?

Answer: Mr. Serell: It says it applies to all buildings. Building is defined as: as defined by the International Code Council’s International Building Code 2000. I don’t know what that says that a building is. I am going to have to find out what that is.

Question: Ms. Annis: So what has to happen is that the Town Building Inspector needs to get a copy of these codes so that we know.

Answer: Yes.

Question: The Town Building Inspector, at this time, is Richard Cook?

Answer: Ms. Annis: Yes.

10. Growth Committee Report – Mark Lennon

• Committee met two weeks ago

• Minutes of the meeting are available
• Currently addressing two areas

1. How to manage growth to maintain Warner’s character

2. How to deal with the potential imbalance between commercial and residential development. If residential development is not balanced by commercial development, it will lead to ever increasing tax rates.

• Upcoming meeting will focus on the residential growth management measures
• Look at measures to deal with the commercial/residential balance issue

11. Outside Consultation and Assistance with Growth Plan – Derek Pershouse

• Copies of document from Hopkinton: Hopkinton Tax Based Diversification Strategy Summary Report
• Would like to see the possibility of Warner doing a similar study
• Independent assessment of the Town in terms of economic growth over the next decade
• Dealing with future growth and tax issues – dealing with it now at growth management meetings – and would be helpful to have some work done along these lines
• How to pay for the study and getting outside help can be discussed at the work sessions if the Board feels that this would be of value

12. Update on Gamil Azmy property in Warner/Webster – John Brayshaw

• Selectmen have sent letters to the Webster Board of Selectmen re: review of what was done at meeting and schedule to get together with their Board
• Some people are still complaining, weekly
• Complaints are about inconsistencies – unregistered vehicles on property; large sign on truck parked out front; differences in Site Plan submitted to Town of Warner and what is actually being done on the property – too many driveways, too many signs, storage of raw materials on the property, apparent use of commercial vehicle for wholesale uses
• New construction – difficult to tell whether he is in Warner or Webster because Town boundaries haven’t been established
• Warner Building Inspector went to see the wetlands and didn’t see any evidence of backfilling

Mr. Mical: The State has amended their driveway permit so that it is not in agreement with the Site Plan that was approved.

Ms. Annis: Are you going to call them on that – you’re the enforcer – so that Gamil has to come back before this Board?

Mr. Mical: We are planning to wait and get together with Webster to see if there are any other issues that need to be addressed in a letter, and send one letter for everything.

Ms. Annis: I know that his parking area isn’t as approved on the Site Plan.

13. Possible Joint Meeting with the Zoning Board of Adjustment

Mr. Lennon: Because of some of the inconsistencies that appear to have arisen between the Planning Board and the Zoning Board, which both Boards have often learned about after the fact to both of our chagrin and disappointment, perhaps it is time to schedule a joint meeting of the Planning and Zoning Boards so that we might take up some of such issues and air out any perceived or actual differences and procedural or decision-making matters that may have or may at some future time arise between the Zoning and Planning Boards.

Ms. Annis: We’re in the process of growth issues. We’re in the process of possibly changing the Zoning Ordinances and frontages and setbacks and all of those matters. Do you think that it would be productive to speak with them and see how they will support these changes?

Mr. Reeder: I think that we need that mutual agreement because we’re working toward the same thing and we sometimes go in different directions. As Mark said, there are some things we don’t find out about until it is embarrassing to all of us.

Mr. Pershouse: If we have a Joint Meeting with the Planning Board and the Zoning Board, I think that it is an overriding issue – and I don’t have an answer for a process to get some of that resolved – but there has been criticism of decisions voiced by members of this Board, and that is a philosophical issue and, perhaps, a political essence of a discrepancy that I think that we need to get beyond before we can talk about solutions. I believe it is an accurate statement that the Planning Board perceives a number of the ZBA’s decisions to be too liberal, and I’m not sure how we can get that resolved in a joint meeting or whether that should be part of that meeting. That is my question – perhaps a meeting with the Selectmen, the Planning and ZBA members or Chairs – to talk about that as a separate issue, apart from the changes that we are making in the Zoning Ordinance.

Mr. Reeder: I would like to meet with the ZBA because I don’t know who some of the members are, and I’d like for them to know me.

Mr. Lennon: I think that if we are going to meet with the Zoning Board, we should have an agenda. I think that Derek has said the right thing, that there is apparently some discrepancy between what the Planning Board believes should go into some Zoning Board decisions and the results of some of those decisions. If that, in fact, is the agenda then I think that we should have that as the Planning Board’s reason for asking for such a meeting. But I think Derek is right in that there is no reason for having a meeting if there is no agenda.

Mr. Wallace: I just don’t want the Planning Board to go into the Zoning Board blindsiding them. I think that they should know what the meeting is going to be about.

Mr. Pershouse: For the record, we as a Board have received some criticism from the ZBA because there was criticism of individual decisions that went on record at one of our meetings. That is what we need to deal with, and we can’t say that without saying it. We need to get everything up front and on the table, and the concern of the ZBA was that the criticism came as part of our regular meeting, not as part of an editorial end-of-meeting discussion as this one. Some or more than some individuals were unhappy with the choice and we were told that it was inappropriate.

Mr. Wallace: There have been a lot of comments from the public over some of the decisions that have been made.

Ms. Annis: I would like to meet and find out where they’re coming from or why they’ve made the decisions that they’ve made. Are they going to uphold the vote of the Planning Board and the vote of the people of the Town? If they’re not, why aren’t they? I’d like some input from them so that maybe it would help us. They’re looking it in a different way – are they looking at the Master Plan and following the Master Plan? Do they look at the Capital Improvements Program and see how that reflects on their decision? I don’t know.

14. Communications & Miscellaneous
15. Adjourn

A motion was made and seconded to adjourn the meeting, which passed unanimously. The meeting was adjourned at 11:30 p.m.

 

Minutes approved: July 7, 2003