Town of Walpole, NH 03608

PLANNING BOARD MEETING

June 13, 2006 7:30pm Walpole Primary School

Unapproved Minutes

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

Absent: Fred Dill, Alt., Dave Edkins, Alt.

Presiding: Jeff Miller, Ch.

Recording: Pamela Aslinger, Secretary

These minutes will be reviewed at the July 11, 2006 meeting in the Town Hall at 7:30pm.

- Notice of the meeting was properly posted.

- The meeting was called to order at 7:30pm. All regular members were present, no alternates designated.

- Ch. Miller passed over the minutes of 5/09 and 5/23/06 meetings. (these will be put on the July 11, 2006 meeting)

REVIEW APPLICATION SUBMITTED

Eric Merklein asked to be recused from participation on the Hubbard application since he is an abutter. Ch. Miller appointed Mr. Boas to act in his place.

Ch. Miller asked if the application was in order. Sec. Aslinger reported all application materials, fees etc. had been received, that all abutters were properly notified.

Ch. Miller called for a motion to accept the application, so moved and seconded, vote passed unanimously.

Ch. Miller asked Mr. Dibernardo to bring forward and present the John and Carol Hubbard Lot Line Adjustment located on Old Drewsville Rd. Map 10, Lot 7 in the R-Ag. Zone. Mr. Dibernardo explained the purpose is to annex .48 acres to Lot 1 to the existing Hubbard homestead, removing .48 acres from Lot 2, resulting in Lot 1 of 3.24 acres, and Lot 2 of 8.83 acres.

CLOSE MEETING/OPEN PUBLIC HEARING

Ch. Miller called for public comment, being none, closed the hearing and reopened the meeting.

ACTION ON APPLICATION SUBMITTED

Ch. Miller called for the Board’s action on the Hubbard Lot Line Adjustment. Sheldon Sawyer moved to approve the application as presented, Henry Fletcher seconded, being no further discussion the vote was taken, motion passed unanimously.

Ch. Miller and Vice-Ch. Miller signed the maps and mylar.

OLD UNFINISHED BUSINESS

Ch. Miller announced that Vicky Gohl of Sunoco Station/Sandri Oil had submitted a letter received by the Board earlier in the day regarding the final contingencies of the Site Plan approval granted last fall, being a landscape plan and handicap parking. The letter stated she had met with the Road Agent about placement of a hybrid elm north of the fountain, that it would not include a curbing surround. Jason Munn was present representing Ms. Gohl, he distributed drawings for the Board’s review, describing the location of two hybrid elms, one on the apron without the curbing, one behind the store, a stand of 4 sycamores on the NW corner of the building delineating the parking area, additional plantings near the sign and an attached 20 x 25’ bed to the existing bed on the south side of the building. All beds would be granite curbed. He stated the handicap parking was moved to the front side of the building and would include a insignia when the parking lot was striped.

Mr. Merklein asked if there were any plans to reduce the size of the Sunoco sign, Mr. Munn said he could not answer that.

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Ch. Miller called for a vote to accept the plans as meeting the contingencies of the prior approval.

Mr. Jasse asked if it was possible to grandfather the sign but reduce its size?

Ch. Miller suggested Ms. Gohl be contacted unofficially regarding the sign.

Motion was restated, seconded, vote passed unanimously in favor.

NEW BUSINESS

Ch. Miller called for new business.

1. Mr. Dibernardo had earlier requested the Mort preliminary 3 lot subdivision be tabled.

2. Mr. Kermit Zerr, representing Cellco Partnership dba Verizon Wireless brought forth an application for Site Plan Review for a proposed new 134’ telecommunications tower to be located along side an existing tower of 150 feet on Fall Mountain, owned by Mr. Brown. He said originally they (Verizon) were going to apply for an addition to the existing tower, but found it was already filled to capacity. He said Verizon had done a build out coverage study to determine the necessity for the new tower. Indicating on the plans, he said the new tower would be the same as the existing tower, a slim triangular shape. He said the existing chain link fence enclosure would be expanded to include an additional 12 x 30’ equipment shelter, the new enclosure would be security contained and enlarged by 3800 sq. ft. with the total footage to be 7500 sq. ft. He said an ice bridge would be constructed on the new tower connecting to the equipment shelter. He said they will use the existing access and roadway to the site. He said the height was determined by a number of factors including frequency requirements.

Ch. Miller called for questions: A question from the audience if the tower would be lit, it will not be lit. Mr. Sawyer asked if Verizon would work with the Town tax accessor to fully access the existing tower, that there were deficiencies. Mr. Zerr said they would suggest and do whatever they could but only have a lease relationship with Mr. Brown. It was noted that Adelphia owns the present tower. Asked if they would provide for co-location they agreed noting the regulations require it and they would provide it. Asked how soon the new tower would be at capacity, Mr. Ken Kelley of Verizon stated they expected the tower to be filled in 3 to 5 years depending on demand, their studies were indicating Walpole may need a smaller third tower in the future, currently there is no service in the Walpole and West Cheshire network. Asked if they would consider a disguised tower, Mr. Zerr said they opted for a “slim guide tower” like the existing tower, it would be less obvious that way and due to the height of the location, it was the best design. The structure itself will serve it’s purpose for years to come. Asked if it was being built on spec, answer was no, Verizon will be using it. Mr. Jasse asked about technical review and economic losses borne by Verizon regarding the present tower.

Ch. Miller closed the question period siting this was just a preliminary discussion, further questions should be part of the Public Hearing to be scheduled. He asked for a vote to place the application on the agenda for July 11, 2006 and schedule the Public Hearing for July 11, 2006.

Was so moved, seconded, vote passed unanimously in favor.

UNFINISHED BUSINESS

Walpole Properties LLC, Berkshire Development - Site Plan Review Route 12, continued review.

Ch. Miller invited Mr. C.R. Willeke, P.E. District Engineer from NHDOT to attend the meeting to discuss the pending Berkshire state application. Mr. Willeke said he came to get a sense of what the Board and Town’s input is on the situation. He does not have the results of the study but can draw some conclusions based on what they have so far. Ch. Miller asked Mr. Willeke to share his conclusions with the Board, the Board would comment as appropriate.

Mr. Willeke said the proposed “grocery store” as described in the plan would cause impacts to the existing plaza driveway, Dearborn Rd., Upper Walpole Rd. and the new proposed entrance. He said the way the report goes, is they grade the level of service on the entrance to Rte. 12 on an opening year and 10 years into the future. He said the opening year service is

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bad. He said a bad level of service could be accommodated through design but he

questioned whether the waiting time for persons exiting onto Rte. 12 ie; waiting for a gap, if it would be worth putting citizens at risk, that safety must be carefully weighed. He said one way to solve the concern is to put a signal in, up to three signals might be required. He said “access management” such as sharing the existing entrance is possible but understands lease agreements are a problem between the properties. He suggested a possible median strip to prevent left handed turns and a turnaround, it might keep through traffic moving on Rte. 12, although he said it could be excessive. He said or they could just put the driveway in and live with the poor level of service, if it becomes a problem hold the developer with an agreement that they put in a signal later.

Ch. Miller said his main concern has been about the existing entrance being unsafe, especially because of the grade, misjudgement of speed, the accidents and more times than not the waiting period seems to grow longer and longer, it’s unsafe existing, how can we handle the additional traffic with another large scale development, a large unsafe cluster. He doesn’t agree with a traffic light, persons stopped will be hit from behind in both directions.

Mr. Willeke said sight lines and projected cues would need to comply. He said Rte. 12 should be built to handle the cues.

Mr. DeCoste said it is not the cue line, but more trying to see over the crest. He asked if the State was thinking of a light?

Mr. Willeke said the recent study of the existing plaza showed that it is very close to needing a signal, but that isn’t the only solution, that lights can cause problems as well. He said with the new proposal it would be more likely to cause traffic signals to be required.

Mr. Boas asked if not knowing the specific types of stores going in the new proposal, would that cause the numbers to be conflicted.

Mr. Willeke said Berkshire used the standard methodology to determine worst case, overly conservative numbers based on an accepted manual. He said they mentioned a fast food restaurant numbers in one of the buildings and a grocery store. He said if they made a drastic change they would need to re-look at the figures. Ch. Miller noted the applicant did not mention fast food at all or drive-thru.

Mr. Merklein asked if they look at both shopping centers as one since the existing plaza is likely to undergo some tenant changes once the new proposal comes in.

Mr. Willeke, said no, it would be considered a change in use for the existing plaza, they use current figures. If the existing Plaza undergoes a change in use, the State would require them to do a new traffic study to reflect current and or projected uses if they are large enough to warrant that.

Mr. Merklein said it should be looked at as one whole center.

Mr. Willeke said the State could not require the existing owner to be part of the new proposal but he is here tonight to say that the access to the two plazas should be combined.

Mr. Merklein said both are being managed by the same developer and they should be answerable to NHDOT as a combined effort, that the developer has promised to spruce up the existing plaza dependant upon the approval of the new proposal. He reiterated the point that both the existing and the proposal must be looked at as a single unit of development.

Mr. Hansel, audience member stated a point of order that no public input was allowed?

Ch. Miller agreed saying this review was for the Board only.

Mr. DeCoste asked when Berkshire submitted the study, did it only address the new proposal, that it did not include the existing plaza?

Mr. Willeke said he was reading from the study which stated “for analysis purposes the combination of a super market, general retail and fast food was selected to provide a conservative worst case analysis”. They count the cars at all intersections then add their proposed use numbers and growth of the Town. By way of counters in the road NHDOT has determined a historic growth rate such as 2% per year.

Mr. DeCoste asked if just one entrance is recommended, will there still be a signal needed.

Mr. Willeke said yes, because the numbers are showing the need for it to avoid a poor level of service. He would rather not see signals personally.

Mr. Daviss said if DOT is recommending the existing entrance be used, then only one other signal would be necessary?

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Mr. Willeke said they would propose three signals, one at existing, one at proposed new driveway and one at Upper Walpole Rd. However he doesn’t agree with the proposed new driveway.

Mr. Daviss asked if NHDOT had the power to say no to the newly proposed driveway.

Mr. Willeke stated since the new site is a separate lot of record the State cannot deny them access to Rte. 12. They can regulate Berkshire’s use if it impacts the highway, they can say how but not no access. He said if Walpole is happy with that area as being their commercial corridor, then signals may not be such a terrible thing. But from a highway standpoint DOT wants to see traffic kept moving through a regional arterial like Rte. 12.

Ch. Miller said it is a limited access highway.

Mr. Willeke said it appears that this is where the Town is growing, by what is already in place.

Mr. Daviss asked what access management might address.

Mr. Willeke said it might include one driveway but incorporate an internal roadway system to reduce the traffic on Rte. 12 by internalizing movement within the centers. He said it is much safer and better for the highway and Town, by limiting the number of driveways onto a high speed highway.

Ms. Aslinger asked if the plans submitted for review showed any internal roadways?

Mr. Willeke said they did show an easement, but it was not adequate for what the State would consider an internal roadway access system, that is was very minimal and inconvenient.

Ch. Miller thanked Mr. Willeke for his time, Mr. Willeke said he was looking for the Town’s input, he would like to keep the Town informed before a final decision was made.

Mr. Boas asked about how long until the review would be complete.

Mr. Willeke said 30 days or so would be realistic, they would come back to the Board at that time for more input and the Board could put their comments in writing also.

Cont’d review of proposal

Ch. Miller stated he had received a letter from Mr. Hanna, Sec. Aslinger handed out copies to members who had not received it.

Ch. Miller read the letter, asking the Board to delay further action and to agree to an extension until July 18th due to a technical legal issue surrounding the internal connector agreement between the plazas.

Ch. Miller said he felt the Board had been reviewing this proposal since February, he thought the Board was ready to take action and not delay.

Mr. Sawyer said he thought Berkshire had bent over backwards to accommodate the Board’s wishes, that they should be granted more time to work out this legal glitch and the Board should allow them the time to see if they can guarantee access between the plazas, that we shouldn’t vote on something that isn’t guaranteed. He feels we should give them the time to address the issue, it gives both an opportunity to get it right, and reminds without the transportation, he said he wouldn’t want to vote on the proposal without the transportation permit. Mr. Sawyer moved that the Board grant the 30 day extension.

Henry Fletcher seconded the motion. Ch. Miller called for discussion.

Eric Merklein said he disagreed, that the Board had asked time after time for Berkshire to present a plan designed so the back side of the building didn’t face the present plaza, the issue of traffic safety had not been addressed, request for additional greenspace had been ignored, as was requests to reconstruct the size and scale of the project, that they hadn’t answered the Board’s concerns. He said they did only the minimum with the interconnector, that it was poorly designed.

Ray Boas said the Board has heard a lot of testimony, a lot of opinions both pro and con. He said the biggest issue that has come up regards the interconnector roadway and it is now in question. He said Mr. Willeke also showed concerns with the interconnector being a minimal effort, also indicated one entrance/egress is optimum. He said there have been a number of revisions to the plans since February, that he is uncertain at this time of what the Board would be actually voting on. He said he did not wish to grant an extension, not that the Board wouldn’t consider future proposals, but at this time the Board should call an end to what has been proposed, and when the concerns can be addressed come back with a better plan. He said an extension at this time for 30 or 65 days would not correct some of the issues that have

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been raised especially in light of the NHDOT discussion, an extension would not serve any purpose.

Ben Daviss agreed with Ray, he said the changes the Board requested have been met with minimal changes, that by granting an extension it would only serve Berkshire, and not the Town. He said to allow additional time to work out a tiny pass through between the two shopping centers would not result in a serviceable solution to the now more apparent traffic and safety issues. He said there is nothing to be gained by allowing an extension.

Mr. Merklein said he had talked to Shaw’s about whether they would be considered for the new space, he said he wasn’t knowledgeable about the exact agreement Shaw’s has but noted if a competitor is placed in the new space Shaw’s would be pursuing legal avenues.

Mr. Miller said he did not feel this was appropriate to be discussing at this time and asked Mr. Merklein to refrain from further discussion.

Mr. DeCoste said he is very concerned how things have not really come together at all, that the inter connector is very big issue to him. In addition the structure hasn’t been set up to be a whole shopping area, although he said he’s not saying Berkshire shouldn’t come back with a legitimate change.

Ch. Miller restated the motion to grant a 30 day extension and called for a vote by show of hands. The motion was defeated 4 against, 2 in favor.

Ch. Miller said he would like to state an issue and possibly call for a vote.

Attorney Thomas Hanna interrupted against Ch. Miller’s wishes and submitted a letter to the Board.

Ch. Miller read the letter which stated: On behalf of Walpole Properties LLC and Berkshire Development, I hereby withdraw the Site Plan application pending the board. Thank you for the hard work. I regret that having to withdraw the application has become necessary. Letter was dated 6/13/06 signed by Attorney Thomas Hanna.

Ch. Miller accepted the letter and thanked Mr. Hanna.

Ch. Miller returned to the issue he would like to address regarding an unanswered question in the Planning Board minutes of January 11, 2000. He said a lady had asked a very important question regarding the 40,000 square foot limitation, whether it meant a building or an establishment. He said he would like the Board to come to a conclusion because the indecision of the Board was leading to confusion and internal conflicts regarding analysis of certain projects. He said it would be wise for the Board to come to an agreement and perhaps the ambiguity in the zoning ordinance could be addressed through the amendment process in 2007. He said back in 2000 the intent was clear; to mean a building, but as time has passed it has become unclear.

Mr. Sawyer asked if he had the 2000 warrant article voted on by the Town, that he felt it reflected the correct intent, he thought it meant a 40K sq. ft. establishment, not building.

Ch. Miller said he had polled many people and had been a part of the process in 2000, that it is more clear to him the 40K sq. ft. applied to the building size. He said he thought the existing Board can decide this issue and move forward, at least until March 2007. He said if the Board can settle the matter, if it is challenged then there is an appeal process in place to address that. He said the Board can decide, offer the position to give direction to an applicant, if they don’t like the interpretation, they can appeal it, but for now the Board needs to move beyond this issue.

Mr. Sawyer asked if Ch. Miller thought the Planning Board was within their right to interpret the issue. Ch. Miller said yes it was well within the right of the Board and it was well within the right of an applicant to appeal the decision through the courts. Once the Board’s interpretation would be made, it is up to the court to uphold that determination, if the court

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doesn’t agree then the Board would have to reverse their interpretation, he was comfortable with the process. He felt having the Board avoiding the issue is not helpful, that a direction is very important.

Mr. Merklein said he wanted to avoid another application coming in that exceeds the limitation right at the start.

Mr. Daviss said he thought there were two questions, 1) are we talking about whether a building is a retail establishment, 2) does the ordinance say that 40K sq. ft. limit applies to all the businesses inside a building or each business inside the building.

Ch. Miller said he thought it was very clear that the only question was whether it is a building or establishment. Is it a gross floor area building or per establishment.

Mr. Daviss said he thought there were two separate questions still. Thirdly, he had been told by three separate municipal lawyers that it is improper for the Planning Board to be make a general ruling of the ordinance outside of the application process. He said we could take a sense of the Board but not make an actual ruling. He said it should be on the record that it is not a legally binding vote being taken. Mr. Daviss said he would like to hear from everyone.

Ray Boas said he thought the warrant article addressed only one question whether 40K sq. ft. applied to a building or retail establishment.

Bob Miller said there was absolutely no question that the 40K sq. ft. pertains to the size of the building. If developer B came in next week and proposed a 100K building, but then said don’t worry each store or establishment won’t exceed 40K sq. ft. He asked is that what Walpole wants?

Mr. Daviss said if he reads the ordinance he sees that building and establishments are two separate issues by the way the ordinance is written. But when he reads Article VI section B he sees that 40K sq. ft. in gross floor area applies to all the retail establishments in a building not each one. Because building and retail establishments are treated as two separate things, therefore two separate questions.

Ch. Miller said when the next application comes up, we answer the question at that time.

Dave DeCoste said he wasn’t part of the 2000 amendment, he thought the 2006 amendment must have tried to say that the ordinance wasn’t clear that it was a building being limited to 40K sq. ft. That he cannot see where it is applied to a building, but to him it says shops, restaurants and establishments.

Ch. Miller said to go ahead of that statement under Article VI. B., the first two words are “a building” and the following items can take place in a building.

Mr. Boas said obviously there is a disparity in the wording, that some additional work may be needed, so it leaves no room for interpretation.

Ch. Miller said this issue could be taken up when the next application is presented.

Ms. Aslinger brought up the wording in the Master Plan. That while the Master Plan is only an advisory document, efforts were made to include the Goals and Objectives in 2000. The amendment was created from the suggestion in the Master Plan to specifically: “Discourage the development of Walpole into a regional economic center.” Under Item #1 “To restrict the size of commercial buildings - for instance not permit any building area to be larger than 40, 000 sq. ft.”. She said they talked right there about limiting the size of commercial buildings to 40K sq. ft., what happened after that was the zoning amendment to reflect the intent of the Master Plan. She said while the Master Plan isn’t a regulation, the Zoning

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Ordinance is our regulations, and it clearly reflects that a commercial building should be limited to 40K sq. ft., she thought that was clearly the intent.

Mr. DeCoste said but they said “for instance”.

Ms. Aslinger said yes, but they actually put it in place, actually made it happen in the amendment to the Zoning Ordinance in 2000, the amendment came after the Master Plan.

Mr. Sawyer argued that even if it is determined that 40K sq. ft. if per building a developer could still have more than one building on a lot therefore not making a difference.

Ms. Aslinger said no, only one building per lot is allowed, more than one building would require a subdivision. She said the way she had looked at the issue is that the 40K sq. ft. limit on building size only makes sense if the original intent was to scale down the size of buildings for the Town. By having it worded in the Master Plan the way it was and then followed up by the Zoning amendment, its obvious to her that whomever worked on this issue was trying to limit the size of buildings. It doesn’t make sense to limit the establishments, to end up with a huge shopping center well over 40K sq. ft. made up of ten 40K sq. ft. stores so you end up with a 400K sq. ft. building. She said some people argued that limiting the building to 40K sq. ft. zones out shopping centers. She said it doesn’t zone out shopping centers, it limits and brings the scale down to 40K sq. ft. You can still have a shopping center as long as its only 40K sq. ft. You can have multiple establishments as long as it’s within a 40K sq. ft. building.

Mr. Sawyer said with so many subdivided lots how would that many permits be allowed for entrances and exits on Rte. 12.

Ch. Miller said that is where the interconnecting roadways become critical. He said he thought without the interconnection of the two separate entities combined as one on the Berkshire plan was showing how a project could not be cohesive for safety and other issues.

Eric Merklein suggested the Board heed the Master Plan regarding planned controlled growth, one of the prime ways to do that is to limit the size and scale of buildings. He requested to follow the suggestion of the Chairman to finalize a policy otherwise the issue would continue to be a trouble area for the Board. He cautioned about arguing the semantics he asked the Board to take a vote, he’d like it settled.

Ch. Miller said Ben is right, it should be dealt with when an application is presented, all opinions have been heard and we should move forward.

Mr. Daviss said he thought there was a common opinion on the Board and would like to introduce a resolution that could be voted on, he read: “Resolve that it is the understanding of this planning board that no single retail building shall encompass more than 40,000 square feet.” He said it’s not proposing an amendment to the ordinance rather just providing a statement of understanding and it is on the record when people come to the Board.

Ch. Miller said isn’t that what he asked originally asked? Mr. Daviss said he still thought what was originally asked was two separate questions on two other issues. He re-read the resolution. Mr. Sawyer asked if it was just in the commercial zone, answer was yes.

Mr. Fletcher asked if it would limit agricultural buildings, answer was no.

Ch. Miller asked Mr. Daviss if he would like to make a motion to adopt the resolution.

Mr. Daviss so moved, it was seconded by Mr. DeCoste. Vote by show of hands, 5 in favor, 2 with no vote. The motion passed.

OTHER

The hearing for the CIP was scheduled for the July 11, 2006 meeting to be held in the Town Hall.

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Board received a Drinking Water Protection Plan in the Cold Water Rivershed, Sec. Aslinger said it protects the drinking water of the Fall Mountain School area, that it only effects that part of Walpole, it will be on file if members want to read it.

The DOT is holding a meeting to review the design of the new bridge over the Cold River, meeting is set for Wed. June 28, 2006 at the Town Hall. Sheldon said it won’t be exactly the same but one design uses the fake stone with a double arch and one without the double arch.

Ms. Aslinger passed out her away schedule noting Regina Borden will be covering for her from June 19 - Aug. 5ish. She is available by cell phone and e-mail once in Montana.

Mr. Jasse said he thought it was disingenuous for Mr. Hanna to submit a withdrawal letter.

Ch. Miller said an applicant can submit a withdrawal at anytime and the withdrawal was accepted.

Mr. Merklein asked for the Board to think about revision of Zoning regarding building permits, he asked to form a committee of Board members and Townspeople to address the housing issue. Mr. Sawyer said he would like to research the housing figures for the last 10 years, he’ll have it for the July meeting.

An audience member asked if two commercial buildings could be built side by side only one foot away. Ch. Miller said no, subdivision is required and the lots would be subject to all the setbacks, frontage and sizes. Sec. Aslinger read the commercial district lot requirements.

Ben Daviss asked to have the Board work on revision of the Zoning Ordinance to better reflect the Master Plan. Ch. Miller agreed suggesting we begin with revision of the Land Use section of the Master Plan since it has been several years, possibly contact SWRPC and budget for it for 2007.

Dave DeCoste made a motion to adjourn the meeting, seconded passed unanimously in favor at 9:10 PM.

Cc: all PB Members, Select’s Office, E. Vose, ZBA, Town Clerk

Posted: Town Hall, Lobby, Burdick’s Market, Town Website