Town of Walpole, NH 03608

Planning Board Meeting

April 11, 2006 7:30pm Town Hall

Unapproved Minutes

Members Present: Jeff Miller, Ch., Bob Miller, Eric Merklein, Dave DeCoste, Henry Fletcher, Sheldon Sawyer, Ben Daviss, Ray Boas, Alt., Pam Aslinger Alt.

Presiding: Jeff Miller, Ch.

Recording: Pamela Aslinger, Secretary

Note: The meeting was tape recorded, the tapes will be kept on permanent file with the records of the Board. These minutes are NOT a verbatim transcription of the tapes.

These minutes will be reviewed at the May 9, 2006 meeting.

All notices were posted and the public notified for all hearings.

The meeting was called to order at 7:36pm. All regular members were present, no alternates appointed. There were 80 +/- persons present, a PA system for the chairman employed.

Ch. Miller welcomed new member Bennett Daviss.

Ch. Miller, at the request of Sheldon Sawyer, took up Election of Officers from Agenda item VIII. B. scheduled towards the latter part of the meeting by moving it to the beginning of the meeting.

Ch. Miller called for nominations for Chairman. Ch. Jeff Miller was nominated. A motion to elect Ch. Miller was made and seconded, being no further discussion the Board voted unanimously in favor to re-elect Jeff Miller for Chairman for one year.

Ch. Miller called for nominations for the Vice-Chairman. Bob Miller was nominated. A motion to elect Bob Miller was made and seconded, being no further discussion the Board voted unanimously in favor to elect Bob Miller for Vice Chairman for one year.

Sheldon Sawyer nominated Fred Dill to fill one of 3 alternate vacancies. A motion was made and seconded to appoint Fred Dill to fill a 3 year term of alternate to the Planning Board, seconded, with no further discussion the Board voted unanimously in favor to appoint Mr. Dill as an alternate to the Board.

Ch. Miller nominated Dave Edkins to fill one of 2 alternate vacancies. A motion was made and seconded to appoint Mr. Edkins to fill a 3 year term of alternate to the Planning Board, seconded, with no further discussion the board voted unanimously in favor to appoint Mr. Edkins as alternate to the Board.

Both appointees were reminded to be officially sworn in.

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Mr. Sawyer suggested the final vacancy to be filled with a nomination from North Walpole at a later date.

REVIEW OF APPLICATIONS SUBMITTED

A. Ch. Miller began review of the William and Grace Therrian proposed 3 lot subdivision located on Stevens Lane and County Rd. in the Rural Ag. Zone, Map 5, Lot 44. The proposal results in Lot 1 of 18.18 acres, Lot 2 of 11.64 acres, Lot 3 of 11.39 acres. Lot 2 fronts on Stevens Lane with the existing house. Lots 2 and 3 front on County Rd. The ZBA granted a variance to the Therrian’s to allow for the non-conforming frontage requirements on Lot 1.

With the Secretary reporting all application materials in order and abutters notified, a motion to accept the application as complete was made and seconded, being no further discussion the Board voted unanimously in favor of the acceptance.

PUBLIC HEARING OPENED 8:00

Mr. Therrian presented the plans, describing the proposal and reason for the variance granted on 2/15/06 meeting, to allow for a more desirable configuration due to the steep terrain restrictions between Lot 1 on Stevens Lane and Lot 2 and 3 on County Rd.

Mr. Therrian noted they had received one curb cut for Lot 2 and 3, (State permit is on file in Therrian folder) stating they felt one driveway between the 2 lots was less of an impact. He said the final survey markers have been put in place. He said the frontage on each of the 2 lots on County Rd. had been purposely made under 300 feet, to avoid any possible future re-subdivision.

A Board member asked if the Town had any responsibility for Stevens Lane, answer was no, Stevens Lane remains a private road.

Jerry Galloway commented he thought the same County Rd. frontage had been used in the past to grant previous subdivisions. He did not attend the ZBA meeting on the Therrian proposal but had read the minutes and decision. He stated that prior owners of the property had been granted a variance/subdivision because of available frontage on County Rd. He wondered how many times frontage could be used to allow subdivisions and grant variances.

Ch. Miller suggested the Planning Board ask the Zoning Board for further consideration.

Mr. Therrian said he had thoroughly researched the Stevens Rd. issue. He said the subdivision of Coyle and Fraunfelder and Alan was done on the basis that the road would be improved and taken over by the Town. He could not answer to any previous agreements by Boards and Austin Stevens, that through his deed research prior to buying his property no restrictions are shown or documented. He suggested the information given to Mr. Galloway was not accurate, that he has the legal documentation supporting the terms of his property.

Mr. Galloway said he thought they were talking by one another, Mr. Galloway just wants clarification of whether the frontage on County Rd. has been used in the past to allow subdivision on Stevens Lane and Taggert Rd. He mentioned 3 separate lots subdivided in the 1970’s around ’76, ’79. He suggested going back to the minutes of the meetings.

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Mr. Sawyer said the BOS struggled with allowing the Fraunfelder subdivision on a private road, but agreed to allow it based on Walpole’s Class VI and Private Rd. Resolution and State Regulation #471.71 allowing development on an existing private road. He thought that subdivision had no bearing on the Therrian proposal.

Mr. Galloway was satisfied that there was no past recorded history, his concerns were answered.

Mr. DeCoste said the PB rejected this proposal before, sending it to the ZBA for a variance since lot 1 did not have frontage on a Class V or better road.

Mr. John Stevens said that some years ago either the Planning or Zoning Board in return for allowing a subdivision on Taggert Rd., a thrown up road, his brother Austin gave up his rights to develop County Rd. road frontage, he wanted to know why it was being used now. He said why was the PB agreeing to swap these two frontages when his brother was not allowed to? He objects to the subdivision and development.

Ch. Miller explained the Therrian’s had obtained a variance from the Zoning Board to waive the frontage requirements on Lot 1. Their review process did not raise any issues regarding any deed restrictions. He said in the past, handshake agreements were sometimes not recorded creating a lack of documentation for future reference.

Mr. Stevens asked if any restrictions were on the deed.

Mr. Therrian said there were none.

Mr. Galloway asked if minutes were available for review? Mr. Stevens provided a hearing date of 12/9/1975. Ch. Miller said minutes were not as good back then, P. Aslinger offered to recover the minutes if the Board could take a brief intermission.

P. Aslinger provided the minutes of the meeting, they were read into the record but did not provide any information regarding agreements between Mr. Austin and the Board, other than approval for a subdivision.

Mrs. Jan Galloway-LeClerc, Zoning Board member said the ZBA granted the variance with the understanding that Mr. Therrian would not be re-subdividing the 2 lots on County Rd. because if one person bought both lots the frontage would be over 700 ft. thus allowing a possible 3 lot subdivision. The ZBA thought the Planning Board should ask Mr. Therrian to add to the plans, no further subdivision allowed. She said if a restriction was not added, the variance could be in question.

Mr. Therrian stated he did not see the need to restrict the lots, that he would not market them to one person, that he purposely did not divide it into 3 lots because it is not desirable for he or the neighborhood.

The Board discussed various ways of honoring the ZBA’s terms of the variance and providing Mr. Therrian with a suitable solution.

Mr. Hanna suggested on behalf of Mr. Therrian that a note could be added to the subdivision plan stating the subdivision was granted as a result of the variance and recorded at the Registry of Deeds, in effect for someone to come back for further subdivision they would have to modify the previous variance. He suggested not going back to the ZBA since the 30 day appeal period had elapsed. He said Mr. Lawrence, surveyor, could make the notation on the final plan.

Being no further discussion the Public Hearing was closed at 8:30pm.

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B. Ch. Miller reviewed the next application for James Stack Trust proposed 2 lot subdivision located on North Rd.(formerly Cemetary Rd.) in the Rural Ag. Zone, Map 10, Lot 6-1. The proposal results in Lot 1 of 6.67 acres and Lot 2 of 1.78 acres. David Bergeron of Brickstone Masons presented the application, describing the lots, showing the test pit locations, submitted a letter from Tom Forest of Forest designs stating both lots will support on site sewage systems. (on file) He said state subdivision approval has been applied for. He has met with the Town Road agent who agreed to both driveway locations.

He was reminded that Cemetary Road is incorrect, that it is North Road. The lots cannot be re-subdivided. Sec. Aslinger noted the plans showed an incorrect abutter she had hand delivered a copy if the Hearing notice to the John and Carol Hubbard who were aware of the subdivision but did not receive the certified mailing.

A motion to accept the application was made and seconded, being no further discussion the Board voted unanimously in favor to accept the application.

PUBLIC HEARING OPENED 8:25pm

Ch. Miller called for comments, being no further comments the hearing was closed at 8:20pm and he re-opened the regular meeting.

ACTION ON APPLICATIONS SUBMITTED

A. William and Grace Therrian - proposed 3 lot subdivison - Mr. Daviss made a motion to approve the application as presented with the condition a notation be made to the plans stating “the subdivision was passed on condition with a variance of the Zoning Board of Adjustment on Feb. 15, 2006”. Motion was seconded, being no further discussion the Board voted unanimously in favor to approve the proposal with the condition as stated.

B. James Stack Trust - proposed 2 lot subdivision - A motion was made to approve the subdivision as presented. The motion was seconded, further discussion added a condition that NH State subdivision approval be granted. Being no further discussion, the Board voted unanimously in favor to approve the subdivision with the condition as stated.

The Chairman suggested mylar and maps be signed later in the week once corrections were made and notations added. He said to contact the Secretary to set up a time.

Chairman Miller asked for a motion to approve the Minutes of the March 14th meeting.

So moved, being no further discussion the Board voted unanimously in favor to approve the minutes as presented.

NEW BUSINESS

Ch. Miller called for new business.

A. Bill Lawrence presented a plan for a lot line adjustment on Alstead Center Rd. The original subdivision was approved in 1999. One lot belonged to Richard Prentiss the second lot belongs to Ron and Stacy Gay. Mr. Prentiss’s son has purchased his lot, both

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parties agree to changing the center dividing line from a “L” shape to a straight line thereby allowing the owners of each lot, more privacy. He said he could drop off the application, fees, maps, and abutter list on Monday April 17th. A motion was made to schedule a Public Hearing on the proposal for the May 9th meeting pending receipt of the application, seconded, being no further discussion the Board voted unanimously in favor of scheduling the application for review and Public Hearing for the May 9, 2006 meeting.

B. Secretary Aslinger presented the Board with an application for a 2 lot subdivision as submitted to her by Mr. DiBernardo. The proposal is on behalf of John and Carol Hubbard located on North Rd. and Old Drewsville Rd. Map 10, Lot 7 in the Rural Ag. Zone, resulting in Lot 1 with the existing house of 2.76 acres and Lot 2 of 9.31 acres. Minor changes were noted on the plan such as changing Cemetary Rd. to North Rd. and to inform the applicant that State subdivision approval may be required on Lot 1. A motion was made and seconded to schedule a review and Public Hearing for the May 9th meeting. Being no further discussion the Board voted unanimously in favor to schedule the proposal for review and Public Hearing at the May 9, 2006 meeting. Sec. Aslinger will notify Mr. DiBernardo of the required changes.

Being no further new business Chairman Miller directed the Board to Unfinished Business.

Sheldon Sawyer asked to address the Board prior to the next Hearing to discuss the disqualification of newly elected Planning Board member Bennett Daviss. Mr. Sawyer read from the RSA regarding disqualification of a member #673:13. He said Mr. Daviss had said things and sent out letters in the past, prior to his election to the Board that might show he could not sit on this application so he should voluntarily disqualify himself.

Mr. DeCoste stated he had no objection to Mr. Daviss sitting on the Board, he was duly elected by Townspeople that knew exactly where he stood on issues.

Ch. Miller asked Mr. Daviss to comment.

Mr. Daviss said since he was new, he would be happy to take the decision of the Board whether they think he can be objective or not. He said the letter Mr. Sawyer was referring to was an e-mail circulated to the entire Board on April 4, 2006, in response to another Board member’s question to clarify his understanding of 40,000 sq. ft. issue that was passed in 2000. He said he did explain his understanding of the ordinance but he did not mention any particular project other than Walmart being a big box retailer and did not mention any multi store shopping centers. He did not urge the Board to go in any particular direction, asked the board to face the 40,000 sq. ft. issue directly to make a decision one way or the other so future applicant’s would know exactly where they stand. He also pointed out that Mr. Tim Traynor has stated in a public forum that Mr. Daviss is one of the most considerate people he’s met in Walpole, so if Mr. Traynor doesn’t object or think that he is impartial he is happy to sit on the hearing. But he would be happy to take the decision of the Board.

Ch. Miller said he would respect Ben’s decision to stay if he can be impartial.

Mr. Davis thanked Mr. Sawyer for bringing up the issue and commended him, that there should be no question about a member’s ability to make impartial decisions. Ch. Miller said if the Board makes no motion to have Mr. Daviss recuse himself he would like to

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move forward with the Berkshire proposal. Being no motion, Ch. Miller moved on to:

UNFINISHED BUSINESS: PENDING APPLICATIONS

A. Walpole Properties, LLC - Site Plan Review, continued review

Ch. Miller turned to Warren Stevens of MW Soils, an independent engineer hired by the Planning Board (as agreed at the March meeting), to review the stormwater management/

drainage study in relation to the Town’s Aquafir and River well.

Mr. Stevens read from a report he had prepared expanding on a couple of issues.

(The report is on file and copies distributed earlier to Board members.) They did not find anything wrong or have any objections with the design of the stormwater system. The system includes adequate safeguards to handle sediment and oil collection according the Best Management Practices. The inspection process was also adequate. He said he would be concerned if the systems were not kept cleaned, wondered how it would be enforced and suggested contracted maintenance be a condition of an approval. He noted the system has a large number of catch basins. He mentioned flooding at times in the N. Meadow plaza saying the run off traveled through an existing culvert that goes under Upper Walpole Road into Blanchard Brook. He noted the groundwater pitches towards the east-southeast and Blanchard Brook away from the Town well. He recommended the Board ask Wagner to add an emergency spillway to the detention pond. Mr. Stevens said as long as the system is properly maintained there should not be any chance of contamination. Development would not detrimentally effect the Town well.

Austin Hunter asked where runoff from automobiles would go. Jennifer Rzepka described the flow over the tar into catch basins where it would be processed through a series of filtration before the water would end up in the detention pond.

Ch. Miller asked if Conservation Commission had any questions, Ch. Gary Speed said most of their questions had been answered by Mr. Stevens report, and they had no further comment other than what they submitted to the Board earlier. (copy of questions in file).

David Evanway asked about the maintenance schedule. Ms. Rzepka said property owner does the maintenance and described the weekly, monthly, quarterly inspections, a logbook will be kept, they have not designated a specific company yet.

Mr. Evanway asked if it is currently being done at North Meadow Plaza. Ch. Miller said no, not to his knowledge.

Mr. Daviss asked if the maintenance is done by the property owner, would it become a transactional obligation, a condition of an approval?

Mr. Traynor said existing systems at North Meadow Plaza are cleaned and inspected in Spring and Fall, if they back up they have a company that uses a high pressure water treatment that extracts the oil and salt, it is 1980 technology. He conferred with his engineer about the type of system being used on the new proposal, a baffle type system.

Mr. Stevens suggested the Board set up a way to review the logs periodically on an annual basis. Ch. Miller suggested the Conservation Commission could review. Mr. Traynor said he would suggest the Board set up a procedure to review.

Mr. Merklein asked how would the Town be protected if ownership changes far in the future and something goes wrong Mr. Traynor suggested bonding and agreed to provide

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bonding even on Landscaping. He said on the two water quality structures, by assigning a 10K bond on each the Town would be protected, whomever owned the property.

Mr. Stevens said the catch basins in the bottom of the retention system should be considered too.

Mr. Merklein asked about life expectancy of system, Jennifer said 20-30 years depending on how it is maintained. Mr. Merklein asked what if it fails in 20 years, who replaces it? Mr. Traynor said through leases and financing they are required to have reserves of funds to cover any large scale maintenance, repairs and other things. Usually the amount is based on sq. footage by a dollar figure and monies are set aside in an escrow account. He is aware the useful life of the North Meadow Plaza is almost up if not beyond. They will be renovating the North Meadow Plaza and expect to update some of the systems.

Carter Lake he asked if an operating permit was going to be required in addition to the building permit to cover the actual equipment.

Ben Daviss asked when would the detention center become overtopped?

Mr. Stevens said he thought the system was designed for a 50 year flood, but certainly a 100 year flood, like we had last fall, would cause it to overflow.

Mr. Merklein asked if they would respond to the overflow potential. Ms. Rzepka said they could design an emergency spillway that would more adequately handle the problem

of overflow.

Mr. Stevens was thanked for his review.

Ch. Miller called for any other comments, being none moved to the SWRPC review from the 3/14 meeting and Wagner’s response. A written response from Wagner Engineering had been provided to the Board although Kevin Russell of SWRPC did not have adequate time to review the materials because they were submitted to the Board 4/7/06 and he did not receive a copy until late on Friday. He did not come to the meeting instead e-mailing the Board explaining why. (copy on file)

Ch. Miller asked Mr. Hannah to begin review of their response, although Ms. Aslinger felt it would be better if Kevin could be present to respond as well. Most of the Board had spent time over the weekend reviewing the materials, but 3 reports from other agencies were only available and distributed tonight to the members and the applicant.

Mr. Hannah submitted an original copy for the record of the Wagner response.

Ch. Miller called for Board questions on Wagner’s responses.

Mr. Decoste asked for an explanation of where the cross connection right of way stands, that it is shown on the newly submitted plans, where does it actually stand.

James Keogh stated that a preliminary agreement had been reached with Walpole Savings Bank but they had not finalized or signed an agreement.

Mr. Hanna said they have a conceptual letter agreeing from the Bank, that the Bank would be willing to accommodate the cross connection through Bank property, however it would be better to have a more finalized plan for the Bank to consider before they sign

an agreement. The Bank needs to have their lawyers review the documents, which has not been done.

Sec. Aslinger asked to have a copy of the letter for the record.

Ben Daviss asked if he could ask a series of questions he had prepared from his own review of the plans and documents, Ch. Miller agreed.

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He asked if the proposal would place too large a demand on the Town water system.

Mark Houghton stated it was not a significant amount. Currently the Town is operating at about 20% of its capacity, so it is not an issue.

Mr. Daviss asked about two issues previously brought up at the March 14 meeting regarding clarification of the building height and traffic signal both were typo errors.

Mr. Daviss asked about the water and sewer connections plans. Ms. Rzepka stated she had met with Mr. Houghton today and some modifications to the plans were going to be made, a copy of his report would be made available to the Board. Mr. Houghton has given them a preliminary approval based on the modifications, once those are made he will sign off on it.

Mr. Daviss asked if the landscaping would be maintained beyond the one year guarantee by the property owner?

Mr. Rzepka stated that was correct.

Mr. Daviss said he was confused on the Traffic numbers. Nick Sanders of VHB explained that the numbers Ben was confused about were discussed at a previous planning meeting, someone from the audience had asked how many trips there were between N. Meadow Plaza and the proposed new site, the numbers represent those trips.

The second set of numbers clarify that those first numbers are not the total number of trips for the new facility, ie the section of road between the 2 plazas.

Mr. Bob Miller asked if Mr. Keogh can say they have all the approvals for the cross over road way at this time.

Mr.Bob Miller said he needed clarification on the size of the building at being 65K sq. ft. Mr. Rzepka stated it was closer to 73K including the loading areas and second building.

Mr. Bob Miller asked what happened to the Walpole regulation that states we have a limit on buildings to 40,000 sq. feet, and why their plans exceed that amount.

Ch. Miller clarified for Mr. Hanna that Mr. Miller was asking why their plans exceed the 40,000 sq. ft. per building according to his interpretation.

Mr. Hanna addressed Mr. Bob Miller saying he thought he(Bob) understood their position on this, and it has been ratified by this Board, although the Board may say that didn’t happen. Mr. Hanna’s stated his position saying this is a threshold zoning issue that when the Board accepted the plan, it was obvious that from day one the square footage has been the same and from day one, (members of the audience began saying wrong and cut Mr. Hanna off) Chairman Miller restored order. Mr. Hannah continued saying their position had been clear from the beginning that this is a building that is in the high 60’s.

As far as from a legal issue goes that’s what we’re talking about that it is in violation of the 40K sq. ft., wasn’t that the issue Mr. Bob Miller is raising? Mr. Hannah said they had never indicated that this was a building, under the current zoning ordinance it is establishments and businesses that are constrained to a gross floor area of 40K sq. ft. and that is their position, is a fairly straightforward position. He said if the zoning amendment had passed with effort to clarify that and make it clear the word was building then they would be subject to a whole different ordinance. But back in 2000 as in 2006 the zoning ordinance had a definition of building, if any one had wanted to limit the sq. footage to buildings it would be easy to do that, the persons who drafted the amendment didn’t use the term buildings to accomplish the objective in 2000, essentially a Wal-Mart action, so that’s their position. That position has been established by the Board by

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accepting the application and 10’s of thousands of dollars have been spent since the hearings.

Mr. Bob Miller said the intent of the 2000 amendment was not specifically aimed at Walmart, the intent was building size.

Mr. Hanna said it was apparently Mr. Miller’s own position, but is not his(Mr. Hanna’s) opinion and not in his view a good reading of the ordinance. He said you don’t look at the intent of the voters if the wording of the ordinance is clear on its face. The definition of building is shown (in the ordinance) but not used in the paragraph, a court would not look at the intent of the voters, but at the language and what it means.

Mr. Boas read from the Planning Board minutes of January 24th showing Mr. Traynor as stating his opinion about the 40K limit when he was discussing the second petitioned amendment regarding parking lots. Mr. Boas read from the minutes which show a comment by Mr. Traynor saying: “They came here and understood that there was a limitation of 40,000 sq. feet on the building and it isn’t problematic for them, but they are concerned with the proposed parking amendment”. Mr. Boas said they did acknowledge at that meeting they understood the limitation, why do the plans show otherwise.

Mr. Traynor responded saying he tried to say that there was a restriction on the size of business and when they first came they proposed a rather large grocery store and over the course of a year he listened very intently to public input regarding the size of the store and what he heard was the intent of this “Wal-Mart rule”, mentioned in many public hearings, that John (Hansel) made the point that the Walpole Group got together to fight Wal-mart and now they are here to fight Berkshire. He said it was Wal-mart who brought it to the forefront and now it’s Berkshire.

(Ch. Miller asked for order in the audience.)

Mr. Traynor said his intent of what he said at the Jan. 24th meeting was to talk about the size of business. They’ve read the language and made their presentation, that the Board will make a decision and may be challenged either way. He said he would like to have the Board get on with the review and to take their time, thoughtfully, to possibly ask for an extension of time.

Ch. Miller said his preliminary research has led him to think the final say on the 40K sq. ft. issue is not necessarily with the Planning Board. That since the Town doesn’t have a Code Enforcement Officer, it’s possible the Selectmen or Zoning Board would be involved.

He advised that the Planning Board not take up this issue at this time, since it may not be in the purvue of the Planning Board to make this determination at this time. He said he would like the Board to have the time and ability to pursue the proper channels of making a correct determination.

Ch. Miller said this would be a good time to discuss the need for a 90 day extension from the Selectmen to waive the 65 day decision period. He said there is still a great deal of material to review outside of the 40K sq. ft. issue and we should allow both the Board and the applicant time to present discussed changes or raise new issues. To proceed so that the Board is moving forward meeting its obligations and to minimize some challenges. He asked for the support of the Board.

Merv Stevens asked to address the 40K sq. ft. issue. Ch. Miller said he did want to spend more time arguing the point, discussion is not appropriate to proceed on this issue

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without the Board clarifying the issue. He asked to keep comments directed to the review of the Berkshire application.

Merv Stevens said he didn’t think it was an argument but a clarification. He was the one to make the motion at the meeting to have 40,000 sq. ft. in January 2000, based on the discussions that took place in the Fall of 1999. He said there was discussion of “building” being the nucleus and agreed that while Wal-mart was the catalyst, the discussions went way beyond Wal-mart, it was about all buildings that would be in Walpole of any size. They discussed sizes from 200,000 sq. ft. to 20,000 sq. ft. and agreed to 40,000 sq. ft. which was voted on by 76% of the voters at the 2000 Town meeting. He said the term establishment was used but the term building is synonymous, they mean on e and the same thing. That was what was said at the meeting held at the Congregational Church in January of 2000 that determined the wording for the warrant article.

Ch. Miller said he would take one more question from Dave Edkins.

Mr. Edkins said he was also an active participant during what he termed the “Wal-mart scare”. He disagreed saying the word establishment was intentionally used rather than building for a very good reason, the group wanted to prevent the existing North Meadow Plaza from becoming non-conforming, which it would have been. He said there was no intention to zone out a use like the North Meadow Plaza or those kinds of developments. He said it was clearly and specifically the word establishment as opposed to building because it didn’t want the existing North Meadow Plaza a non-conforming use. So it was an intentional use of the word establishment and a conscious decision made by the group.

Mr. Hansel said he was flabbergasted that this issue has not been determined. That he did not agree that it should be shuffled off to another Board, that State Law is fairly clear on how to handle this. He urged the Board to seek legal counsel.

Ch. Miller said that is essentially what he is proposing to do, and would like to move forward and on to other matters.

Ben Daviss agreed, we need to separate the 40K issue from discussion of Berkshire’s plan, it is too big an issue and should not coincide with one another. He asked to end discussion the 40K issue and take it up at another time. He asked everyone to respect Tim (Traynor) and his point of view and for everyone else to please behave civilly.

Ch. Miller asked for other questions from the Board.

Eric Merklein asked to approach the map, he asked about the cut through the plaza and is concerned about traffic safety, pedestrian traffic and adding green space in that area.

He asked if they would consider looking at a re-design and incorporate SWRPC’s suggestion to tie the second building by sidewalk to the main building as well as provide a walking access between the 2 plazas.

Mr. Traynor said they would consider a raised sidewalk. They would consider addressing those concerns being mindful of the orientation of one of the side stores needing front parking. He agreed the internal traffic circulation numbers were significant, between 100-140 trips per peak hour. He feels the inter connection is very much needed.

Mr. Merklein said he was also concerned about the orientation of the new proposal and how the back area faces the existing plaza, that by rotating the building could they make

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the centers look related like a suite, even with trees and fence they still are looking at the back of the new building. Mr. Traynor said the building was oriented as shown mainly to allow for the loading docks, but they would go back and see if it could be rotated.

Mr. Merklein said he thought the exit was dangerous because 3 lanes have to be crossed to make a left hand turn. Mr. Traynor asked his engineers if any comments had been made by DOT regarding left hand turns out of the new proposal.

Mr. Nick Sanders gave an update of DOT status of application, saying they had not received any comments on the preliminary design yet, that the plans were currently being reviewed in that phase.

Ch. Miller asked as a follow up whether any improvements were being considered for the existing North Meadow Plaza.

Mr. Traynor said yes they will improve the existing entrance/exit , discussed the incline, he thinks that could be corrected by shimming the lot and have the incline take place on either side of the entrance. He is aware of the concerns by people using the Plaza.

Ben Daviss said he thought the volume of traffic and direction of traffic may require a traffic light or 3 way stop on the cross-connection road since the Bank’s drive through intersects at that point leading to fender benders and a stop of traffic flow.

Mr. Sanders said he didn’t think a light would be warranted by the volume, but agrees about the converging traffic that the design does need to address those issues and to avoid confusion.

Mr. Traynor said he would do an “exploded” interior circulation plan to show the number of cars in either direction, and how they are going to address that spot. He said it is difficult when there is uncontrolled movement in front of a building.

Mr. Ben Daviss said its one thing to talk about the space but to actually drive it at 5pm gives a better understanding of how it works.

Mr. Traynor asked if an actual study of the interior traffic had been prepared.

Mr. Sanders said only collected data at the entrance of North Meadow Plaza.

Mr. Merklein asked if an independent quality control planner/engineer could be hired to over see the construction and report to the Board, to help the Board to understand some of the technical aspects of the construction, for instance testing for 300lbs per square inch concrete.

Mr. Traynor said under AIA there is a contract overseen by Architect of record and civil engineer of record who designs and comes up with specifics of construction. He said they have independent inspectors that monitor and certify different aspects of construction. They file reports with Berkshire and while they come under contract for Berkshire they are independent of Berkshire. Berkshire has no interconnection with them and they report on the construction. Those records could be reviewed by the Building Inspector but since the Town does not have building inspector he would have no objection with the Board hiring an independent and would fund it.

Mr. Merklein had one final comment, he was concerned with the contention being generated over this project and wondered if Berkshire would consider creating more “people space”, that it isn’t them, but the scale of the project that has people concerned, Would they consider loosing some building space and adding more people space, he understands the dollar per sq. foot, but with more people space they could perhaps charge a higher dollar amount per sq. foot.

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An audience member said they were told the Town would have 20% green space in the plan although the Master Plan calls for 50%, but in the minutes of the last Planning meeting is says 15%, she asked for clarification.

Ms. Rzepka said 15%, not 20%.

Mr. Hansel said one of the tenants has stated they do not want the interconnection.

Mr. Cooke asked who is presently in control of the Plaza, who calls the shots and the access between the two lots?

Mr. Keogh felt it was not pertinent information for the Board review.

Ch. Miller attempted to clarify his knowledge of ownership of the Plaza and other areas saying it was a unique situation.

Mr. Cooke said so there is no overall control of the existing Plaza?

Mr. Keogh said Berkshire has been hired by various entities, short answer is Berkshire is

acting on behalf of the various owners.

Mr. Cooke said there didn’t seem to be any inter-connection roadway between the two plaza’s, on his plan.

Ch. Miller said the new plans do show the preliminary connection, that he feels without the interconnection the plan is not viable, that this new development should not be considered as two separate entities but as one for the purpose of planning and assessing total impact of the project. He is concerned about improving the safety of the existing entrance and exit.

Carter Lake referred to the plan with a technical questions regarding the newly proposed entrance/exit, he is concerned that there is a deceleration lane but no acceleration lane and feels with the 7/8 cars per minute volume, it would be warranted.

Ms. Rzepka said the off site road designs are preliminary at this point and are still being reviewed by DOT, they will address the final plans according to DOT’s recommendation.

Ben Daviss asked about the Wagner report page 10, he asked about the status of the conditional use permit regarding the water.

Dave Edkins said the condition use permit would be part of an approval, they would be tied together, the Board has not set up an exact procedure. Mr. Houghton said it would be tied in with the Water use report.

Mr. Daviss has serious concerns about the safety, interconnecting, entrance and exit.

He mentioned the possibility of 2 large apartment buildings, we could see 200 more cars in the next year, he said he didn’t feel we had the infrastructure in place to handle the increased traffic that will be generated by this and upcoming proposals.

Mr. Traynor asked if Mr. Daviss and/or the Board place credence on what the State Dept. of Transportation would recommend.

Mr. Daviss said he realized the DOT has the ultimate control over Rte. 12.

Mr. Taynor said they would be re-looking at the plan, that good comments were raised they would be addressing green space, cut down parking, the cut through and by pass, the incline at the existing plaza and tie those improvements to what’s being proposed, that it is appropriate to tie them in. He said to rely on the ordinance and what is says, and not eliminate what the State has to say and to wait for their report.

Ch. Miller said yes, we should lend credence to the DOT recommendations but warns that the State allowed what is there now and agrees with Ben on the potential of the increase in traffic for that section of Rte. 12.

Walpole PB Minutes 4/11/06 page 13

Mr. Traynor said in 1980 it probably did work, 26 years later traffic has changed, they will follow the standards the State sets.

Ben Daviss said he was still is unclear about the agreement on the cross connection, does the intent to agree mean they will do this?

Mr. Traynor said the Board will have a copy of a letter between the Bank and Berkshire showing the status of their agreement. He said the Bank agrees that it will be advan-tageous from a marketing standpoint and provides a pubic service by increasing safety.

Mr. Don Tisdale, Walpole Savings Bank President, stepped forward and confirmed the agreement thus far, it is just as they(Berkshire) have described.

Ch. Miller thanked Mr. Tisdale for his clarification.

Ch. Miller said since it was past 10pm he thought the Board should move to ask the Selectmen for a 90 day extension to review the application.

Mr. Hanna said typically the Board asks the applicant for a waiver of the 65 day decision period and asks them for an extension. They are willing to give a 30 day extension.

The board discussed needing more than 30 days, siting the volumes of information still to be reviewed and the need for revised information to be submitted at least 10 - 15 days in advance of the next meeting. The newest materials were not submitted in time to allow the Board and SWRPC adequate time for review. Sec. Aslinger stated she had to personally hand deliver some of the materials to the members so they could review it over the weekend, that SWRPC did not get a copy of the revised plans and only had one day to review the response from Wagner.

Mr. Hanna said that 90 days is excessive and requested that the Board ask them for the extension directly, that they would grant 30 days. The Board said 90 days was suggested by SWRPC or to have them waive the 65 days entirely, that 30 days would not be adequate. Mr. Hanna said they would grant a 65 day extension. The Board agreed and said they may need to ask for additional 30 day increments.

Mr. Hanna said they will waive the 65 days and gave the Board an additional 65 days.

A motion was made to accept the applicant’s waiver of the 65 day rule and granting the Board an additional 65 days, seconded, without further discussion the Board voted and the motion carried.

The new deadline will be by the June 18, 2006 meeting.

The Board recessed for 15 minutes at 10:30pm

COMMUNICATIONS AND MISCELLANEOUS

Ch. Miller suggested the Board continue having Kevin Russell from SWRPC help us review the Walpole Properties/Berkshire proposal, that his input and guidance has been very helpful. The Board agreed, noting the applicant would be billed for Kevin’s time as agreed. Ch. Miller instructed Sec. Aslinger to see that Kevin gets copies of all the new plans and minutes, to be kept informed throughout the rest of the process.

Ch. Miller asked the Board for their permission. to allow him to contact an Attorney to advise the Board on the 40,000 sq. ft. issue for clarification on how to proceed as well as

Walpole PB Minutes 4/11/06 page 14

the interpretation, he said he had considered contacting Peter Heath a former Attny. General for the State, who had helped the Board on another legal proceeding in the past. Mr. Boas asked about his background and if he was the best choice. Mr. Sawyer and Mr. Miller said they considered him the best choice he has background in land use and municipal issues.

Eric Merkein asked if the Board would retain an Attorney to write any bonds, performance agreements etc. when we reached that part of the review process. Ch. Miller said SWRPC may be able to help us on that.

A motion was made and seconded to allow Ch. Miller to contact an Attorney to advise the Board on the 40,000 sq. ft. issue and the appropriate action. With no further discussion the Board voted, the motion carried.

Sec. Aslinger mentioned she had collected the ballot information on the 2006 zoning amendments and asked if any member would like to review the information, all members were aware of the results, no further discussion took place, Sec. Aslinger will file the ballot documents in the Board files.

Ch. Miller mentioned he had received a call about a conditional use on the telecommunications tower on Fall Mountain. Sec. Aslinger said she had provided information to a representative from Verizon 4/11/06, she gave her copies of the ordinances, applications and copies from the 1998 folder when the tower was first installed. Ms. Aslinger said she also provided minutes from meetings, one set of related minutes showed where Ch. Miller has said a site plan review was not required since Voicestream was just adding to the existing tower but recommended they contact the Board when they were ready to proceed. They will follow whatever is required and outlined in the ordinance. Mr. Sawyer mentioned there were some problems regarding taxation on tower related matters. Buck Taylor had provided Ch. Miller with a copy of an article that appeared in the paper stating Verizon would be adding to the Tower.

Sec. Aslinger said Mr. Taylor will provide the Board with a copy of all the corrected street names so we can compare it to plans as they come in, he noted that on three of the proposals tonight there were a few incorrect street names. Ms. Aslinger will notify the surveyor’s to correct the plans prior to signing the mylars.

Ch. Miller asked if all Board members had seen Mr. Taylor’s report, answer was yes they all had been provided copies.

Sec. Aslinger asked to make a comment regarding the Board’s acceptance of applications, that the criteria for accepting an application is simply filing an application form, fees, abutter list and 3 sets of plans, just the basic information so we can begin working to review the proposal, it does not constitute an approval of what they have given us. She disagreed with Mr. Hanna implying that because the Board accepted their application they have approved of what they submitted. She said it is important that the Board not feel stuck with exactly what they’ve presented just because the Board has

Walpole PB Minutes 4/11/06 page 15

accepted it, it is only accepted for review. She said every handbook, law book regulations and even our ordinances spell it out very clearly. When it gets down to the review of an application, then the Board can make changes, she said she thought the Board was doing a great job of negotiating with the applicant. The Board agreed, but Sheldon cautioned that the Board should review projects so there is no violation to the zoning ordinance first so an applicant would know up front. Ch. Miller said the Planning Board wouldn’t be held accountable for its procedures. Secretary Aslinger agreed, in the RSA’s certainly the board is required to follow proper procedures and should make every possible effort to. If an issue comes down to only a poor procedure, Boards cannot be made to reverse decisions based on that alone. She sited the example of the way the Berkshire application was accepted, that it contained procedural flaws, Vice Chairman Dave Edkins opened the Public Hearing before the application was accepted, the application was handled as an expedited review, an incorrect procedure for a major site plan review, the Board did not vote to hold a Public Hearing. According to SWRPC even though our procedures were not precisely followed, the application has been accepted as complete. She asked the Board to study the Office of Energy and Planning Handbook, proper procedures are well defined.

The Board continued to discuss general procedures on applications, siting the Therrian approved subdivision, requiring the reference to the Zoning Board variance as being a good safeguard, that because of past handshake procedures, vital information does not become fully recorded.

Eric Merklein thought the Board should refrain and ask audience members to refrain from commenting on Wal-mart, specifically. All agreed.

Ray Boas said he was beating a dead horse but by removing Wal-mart from the 40K issue, then the whole thrust would seem to be about building size instead of trying to keep one entity out. If the business model is for one who wants a small store of 40K sq. ft. that would be fine. It wasn’t Walmart per se, but an issue of building size.

Ch. Miller said he was on the Board at the time of the 2000 amendment, he said to refer to the Master Plan where it showed the Town didn’t want strip development on Rte. 12, he agreed with Mr. Edkins only to the extent that the word establishment has evolved into store over time. He said he thought the Berkshire proposal was one step towards what the Master Plan was trying to prevent in terms of strip development on Rte. 12.

He is very concerned about safety situation in that area, and remembers the expansion of Pinnacle View and how having an existing entrance and exit helped. He mentioned various developments that have taken place along Rte. since 1985 when the Master Plan was done, and how the Master Plan’s intent was not to have so many cuts in the Commercial area, not to limit commercial development but to have a limited number of cuts, since Rte. 12 is a “limited access highway”. He said he is struck by the fact the current proposal is being viewed as two separate entities, he said it is not, it is one development. The entrance should be interconnected and limited to one entrance and exit although he wonders how safely the existing entrance and exit can be expanded.

Mr. Boas agreed, if the new building could be rotated, a safe interconnected road designed he wondered if the additional cut on Rte. 12 would be needed.

Mr. Sawyer said he thought 2 cuts were safer, to rely on the DOT recommendation.

Walpole PB Minutes 4/11/06 page 16

Mr. DeCoste asked if Rte. 12 is a limited access highway, why would they allow another cut?

Ch. Miller said, in general a proposal is submitted and if the numbers and guidelines meet standardized rates then it gets State approval, just like a person applying for a septic system on ledge, if they design it they get an approval.

Mr. Sawyer said he thought the State was only going to allow one more access on Rte. 12 for the Town of Walpole.

Sec. Aslinger said she understood that DOT would take input on these plans from the Planning Board, that they’ll attend one of the meetings if we ask.

Ch. Miller said he would contact Mr. Wilke, DOT administrator in Keene.

PLEASE NOTE: the tape ended at this point.

The Board decided against holding a Work Session for April but agreed to return to holding regularly scheduled work sessions after the Berkshire proposal was finalized.

All agreed the Board needed time to review regulations and begin work on the Master Plan revisions.

Mr. Sawyer reminded members about the tax base in the Town, that growth has been predominately in housing and the loss of Hubbard’s enterprises will have an effect.

Ms. Aslinger asked if she could present for clarification to SWRPC if the Walpole Properties/Berkshire proposal may require subdivision for the second “restaurant” building site. The Board agreed.

Members discussed other impacts of the development, whether an additional Police Officer would be required,or improvements to the emergency services. It was mentioned that not knowing what tenants are planned has an impact on determining accurate numbers of parking spaces and traffic. For instance a grocery store vs. a furniture store wouldn’t have the same numbers.

Due to the late hour, the Chairman called for a motion to close the meeting.

A motion to close the meeting was made and seconded, being no further discussion the motion carried.

Meeting closed at 11PM.

Cc: All PB Members, ZBA Ch., CCC Ch., Select’s Office, Town Clerk

Cc: SWRPC, Mr. Hanna

Posted: Town website www:walpolenh.us, Town Hall, Burdick’s Market