Swanzey Zoning Board of Adjustment Minutes

SWANZEY ZONING BOARD OF ADJUSTMENT MINUTES

OCTOBER 3, 2005

[Note: Minutes are not final until reviewed and approved by the Board. Review and approval of minutes generally takes place at the next regularly scheduled meeting of the Board.]

The special meeting of the Swanzey Zoning Board of Adjustment was called to order on Monday, October 3, 2005 at 7:05 p.m. by Chair William Hutwelker. Members present: William Hutwelker, Elizabeth Nieckoski, Keith Thibault, Bob Mitchell and alternates Bob DeRocher and Marty Geheran. Town Planner Sara Carbonneau was also present. Consideration of the minutes from September 19, 2005 and September 26, 2005 was deferred until the end of the meeting. The agenda for the evening’s meeting was read and the following matter was addressed:

1. Public Hearing (Special Exception Application) – Larry Koch requests a special exception pursuant to Section IV.A.2.c. to construct multi-family housing (74 housing units) on property situated off California Brook Road. The property is situated in the Rural/Agricultural Zoning District and is shown at Tax Map 79, Lot 6. Continuation of public hearing. Seated were: Hutwelker, Nieckoski, Thibault, DeRocher and Geheran. Present on behalf of the applicant were: Larry Koch and Michael Bentley, Esq. Interested members of the public were also in attendance. Public hearing opened.

Carbonneau provided the Board members, Attorney Bentley and Koch with copies of an updated summary of findings prepared by David Saladino (RSG, Inc.) dated September 30, 2005, together with a copy of the Swanzey Sewer Ordinance. Bentley provided Board members with an updated draft agreement regarding the sewer system.

Bentley stated that he did not recall Doughty stating that the Route 10/California Street intersection was dangerous, as stated in the September 26th minutes. Board members disagreed.

Bentley reviewed the revised RSG report, stating that he did not understand the significance of the Route 10/California Street accident data. In addition, Koch stated that the discussion in the report regarding dead end road length was not applicable, as he felt that the proposed development was not on a dead end road. Koch stated that the second means of egress from the proposed new 1200 foot town road was via a private unpaved access lane through California Brook Estates.

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Koch stated that the Glenn Page, Chair of the Swanzey Sewer Commission, is “fine” with the proposed sewer connection. Board members noted that Page’s prior testimony was directed to the capacity of the waste water treatment plant, line size and to the sewer lines crossing the wetlands area.

Koch stated that he will need to make modifications to the existing pump system in order to accommodate the proposed project. Koch stated that the two pumps will increase from 7.5 hp to 15 hp; the electrical system will be upgraded from 220 3-phase power to 460 3-phase power and a “new control panel with all the bells and whistles” will be installed. Koch stated that he would need to obtain a wastewater discharge permit from NH-DES, but did not believe that he needed to obtain any permits from the Swanzey Sewer Commission.

Bentley provided an updated agreement regarding the sewer system maintenance and allocation of costs. Minor corrections were noted by the Board, with Bentley agreeing that the suggested changes would be made to any final agreement. It was also specifically noted that the agreement would need to include the private lines to the point where they connect to the public sewer system on the east side of Route 10 at the last manhole.

Water supply was discussed. Nieckoski expressed continued concern that the wells were located off site, when the opportunity to include them on the condominium site was available (as the land had yet to be subdivided). Thibault asked Koch to explain why he did not want to locate the wells on the condominium parcel. Koch stated that to obtain road frontage for development of the proposed third lot, he could not include the wells on the condominium parcel.

Koch stated that the location of the wells and the uses of the property within the protective well radius were heavily regulated and monitored by the State. Koch stated that with reference to the sewer connection, the State will need to grant the initial discharge permit, but there is no follow-up monitoring by the State.

Koch stated that prior to applying to the Zoning Board of Adjustment, he met with the Fire Chief, Police Chief, DPW Director, Glenn Page and the Planning Board, who all indicated that the plans were fine.

Nieckoski stated that she did not believe that the special exception application met the test of being connected to the “public sewer,” as there was at least 1 mile of private line through which the project would need to connect to. Koch stated that Page indicated that this was not an issue. Mitchell stated that shared utilities are not uncommon in other areas and the benefits from being connected to sewer outweighed the negatives.

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Board members expressed concern about the density of the proposed project. Thibault noted that if this project was not connected to sewer, only 20 multi-family housing units would be permitted. Hutwelker and Nieckoski also stated that they felt that the density was excessive. Koch stated that he arrived at the 74 unit number after he met with the Fire Chief who indicated that a 50 foot separation between units was required. Koch also stated that he was limited by the wetlands surrounding the property.

Board members inquired about the status of the condominium association and association documents. Bentley stated that there was a “chicken and egg” situation here and that association documents cannot be approved by the Attorney General’s office until local approval is received. Bentley further stated that it would be a financial hardship to draft association documents ahead of time, in the event that the project was not approved.

Koch stated that he did not state at the September 26th meeting that he felt as if he was being “singled out.”

Koch indicated that he had spoken with NH-DOT earlier in the day regarding the scoping study. He further stated that problems with the Route 10/California Street intersection should have been resolved by the Town and the State before this point and that he should not be responsible for correcting the problem. Public hearing closed.

Board members discussed the criteria for granting a special exception. Nieckoski stated that she did not believe that the property was connected to public sewer as there would be over 1 mile of private sewer line bringing sewer to the site. Nieckoski stated that if the property was not served by public sewer, then the applicant could not be seeing approval for 74 units. Hutwelker agreed with Nieckoski. DeRocher, Geheran and Thibault stated that they did not see this as an issue, as the effluent eventually ends up in the municipal sewer system.

Board members were divided as to whether the use was “similar to one or more of the uses already authorized in that District and is it an appropriate location for such use.” In addition, Board members discussed if the district specifically referred to the Rural/Agricultural Zoning District or to West Swanzey, in general. DeRocher noted that the condominiums were similar to other uses in the district, but not exactly the same. Hutwelker disagreed stating that Haley Park, Riverbend and Evergreen Knolls were differentiated by their direct access to Route 10 and proximity to public sewer and the West Swanzey Water Company. Hutwelker also felt that Perry Lane was not similar because that project was primarily single family homes. Nieckoski stated that she did not feel that California Brook Estates was similar as it is less densely developed (approximately 1.25 building units per acre) than the proposed project.

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DeRocher, Geheran and Thibault felt that the proposed project was similar to other existing uses, i.e. multi-family housing, and was in an appropriate location, noting that the definition of the Rural/Agricultural Zoning District specifically states that the district “is considered to be the future growth area for the town…” Thibault noted that the density was greater than what he would prefer. Nieckoski noted that growth does not necessarily mean housing, but also refers to open space areas, recreational areas, etc.

With reference to the criteria “will such approval reduce the value of any property within the district, or otherwise be injurious, obnoxious, or offensive to the neighborhood,” Board members were divided. Nieckoski felt that the doubling in traffic along California Brook Road and California Street would diminish the quality of life and would be a nuisance. DeRocher and Geheran felt the project may help raise property values in California Brook Estates and would resolve an unresolved wetlands issue.

With reference to the criteria “will there be a nuisance or serious hazard to vehicle or pedestrians,” all Board members felt that there would be such a nuisance or serious hazard, noting that the testimony received indicates that the Route 10/California Street intersection is dangerous and that doubling the traffic entering the intersection from California Street would make this situation worse. Hutwelker stated that the Koch and Bentley stated at the last meeting that they wanted the Board to proceed with making a decision on this matter prior to receiving information from NH-DOT, making any approval subject to whatever requirements that NH-DOT may set forth. Hutwelker stated that the Board could not defer to the State on this matter, citing Tidd v. Alton.

Nieckoski noted that she felt that the design of the parking area and travel lanes within the proposed project were not safe, as there was no sidewalk provided for pedestrian use. Board members concurred that the design of the project as originally proposed was preferable to the project as currently designed. However, most board members felt that safety on-site was adequate but not ideal.

Board members discussed criteria 2d: “will adequate and appropriate facilities be provided for the proper operation of the proposed use.” With reference to water supply, Board members felt that there was no need for the water supply to be located on another parcel of property, potentially under the control of another entity. Board members felt that since the property had yet to be subdivided, Koch could reconfigure the condominium lot to include the wells, but chose not to do so. Nieckoski stated that having the wells on another parcel requires easements and agreements and that there is no reason that this needs to be done in the case, as the applicant has the option of reconfiguring the lot to include

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the wells. DeRocher and Thibault disagreed, stating that while the provisions for water were not ideal, they were adequate.

With reference to provisions for sewerage disposal, DeRocher, Geheran and Thibault felt that the proposal was adequate. Geheran stated that the Agreement proposed by Attorney Bentley addressed his concerns. Hutwelker and Nieckoski disagreed, stating that the 1 mile plus of private sewer line was not appropriate and did not meet the intent of the ordinance regarding connecting to public sewer. In addition, Nieckoski again expressed concerns about needing easements in order to provide for adequate utilities, when other options are available.

With reference to drainage, DeRocher, Thibault and Geheran felt that it was not a problem that revised drainage plans had not been provided to the Board after the project was reconfigured. Geheran stated that statements from the applicant’s engineer at the last meeting indicated that prior drainage plans would be more than sufficient, as the changes were “minimal.” Hutwelker and Nieckoski disagreed.

With reference to fire protection, Board members stated that Fire Chief Karasinski submitted a letter stating that he had reviewed the plans and felt that they met all of his requirements.

With reference to parking, Board members felt that enough parking spaces were provided, the plan was adequate but that the configuration of the parking area and the lack of sidewalks was less than ideal.

Hutwelker noted that no provisions had been made for recreational opportunities. It was noted that these opportunities can be made available at a later time if needed.

Motion by Geheran to deny the application for special exception based on the following:

1. The Board determined that there would be a nuisance or serious hazard to vehicles or pedestrians at the intersection of Route 10 and California Street based upon testimony received and due to the projected doubling of vehicles utilizing California Street as a result of the proposed project; and

2. The Board determined that adequate and appropriate facilities would not be provided for the proper operation of the proposed use, specifically finding that the water supply for the proposed project was not located on the same lot as the proposed condominiums and that the opportunity to site the water on site was available.

Seconded by Nieckoski. Vote in favor of the motion: Hutwelker, Nieckoski and Geheran. Opposed to the motion: DeRocher and Thibault. Motion carries.

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Bentley requested that all of the tapes from the ZBA meetings regarding this matter be retained.

2. Minutes from September 19, 2005 and September 26, 2005. Motion by Thibault to approve the minutes from September 19, 2005 as submitted. Seconded by Nieckoski. Vote: All in favor.

The minutes from September 26, 2005 were discussed. Carbonneau was asked if she recalled if Koch specifically stated that he felt that he was being “singled out.” Carbonneau stated that she could not recall if he used those specific words. Motion by DeRocher to approve the Minutes of September 26, 2005 as amended as follows: change the first sentence in the first full paragraph on Page Four to read “Koch stated that her felt there were other developments along Route 10 that did not have this level of scrutiny and, in his opinion, had less than adequate curb cuts along Route 10.” Seconded by Thibault. Vote: All in favor.

Motion by Mitchell to adjourn. Seconded by Geheran. Vote: All in favor. Meeting adjourned at 10:45 p.m.

Submitted by,

Sara H. Carbonneau

Town Planner