Unapproved minutes by Levone


									Page 1 of 14 unapproved minutes of July 10, 2007
Planning Board

                                                                   Unapproved minutes
                                                                See minutes of 08/14/07
                                                               For corrections/approval.

                               PLANNING BOARD
                             RYE, NEW HAMPSHIRE
                           MINUTES OF THE MEETING
                                  July 10, 2007

Members Presents:     Donald Cavallaro, Chairman; Mark Galvin, Vice-Chair; William
                      Zechel; Priscilla Jenness, Selectmen’s Rep.; Samuel Winebaum;
                      Mel Low; Jaci Grote, Clerk; Bob Brown, Alt.; Martin Zivic, Alt.

Also Present:         Michael Donovan, Attorney; and Kimberly Reed, Planning
                      Administrator and Cyndi Gillespie, Stenographer.

1.     Meeting was called to order at 7:00 P.M.

Chairman Cavallaro called the meeting to order at 7:00 p.m. and requested everyone state
their name loudly for the tape.

2.     Approval of Planning Board Meeting Minutes of June 12, 2007: Action

Priscilla Jenness requested the following corrections. Page 2, third paragraph from the
bottom the word “questioned” to be “question”. Page 4, fourth paragraph from the
bottom, remove the comma in the sentence. Page 6, fourth paragraph from the bottom to
have “concerned” be “concern”.

Samuel Winebaum requested the following corrections.. Page 5, third paragraph, “Mike
Donovan’s” to be “Attorney Donovan”. Page 8, fifth paragraph, “This lot was there
determination as to where to build the RCD.” To read “This lot was SERVE’S
determination as to where to build the RCD.”

Motion by Mark Galvin to accept the minutes for June 12, 2007 as amended.
Seconded by William Zechel. All favored. Motion carries.
Page 2 of 14 unapproved minutes of July 10, 2007
Planning Board

Public Hearings: Action Required.
       1. Site Review for Michael O’Donnell Tax Map 10 Lot 1, to operate a
          seasonal farm stand located at 355 Lafayette Road. File 09-07;

Chairman Cavallaro opened the hearing for Michael O’Donnell.
Michael O’Donnell presented his request for a Farm Stand and discusses his application.

Discussion followed regarding the information submitted in the application for the
structure size and design.

Attorney Donovan stated there is a 60 foot zoning set back requirement from Lafayette
Road that must be met.

Priscilla Jenness questioned the width of the right of way on Lafayette Road.

Michael O’Donnell stated that it is 45 feet from the edge of the existing grass and the
road is about 50 feet. However, he does not know the width of the right of way. He will
be willing to move the tent back with parking in back. (Kim Reed is requested to refer to
the Malcolm Smith Plan for the information.)

Chairman Cavallaro questioned if and what the liabilities are with approval of this farm

Michael O’Donnell stated none.

Samuel Winebaum questioned if there is a requirement for a port-a-potty.

Michael O’Donnell stated no, this is a temporary use and the stand is not serving food.

Mark Galvin stated that a more detailed site plan is needed.

Mark Galvin stated that this is the first meeting for this application and a more detailed
plan is requested for the file. There is a conceptual plan from last December in the file.

Chairman Cavallaro opened the hearing for any public comments or questions. Hearing
none, this portion of the hearing was closed.

Mark Galvin again requested a more detailed site plan and more detailed information.

Motion by Melvin Low to accept jurisdiction of this application for Michael
O’Donnell Tax Map 10 Lot 1, to operate a seasonal farm stand located at 355
Lafayette Road. File 09-07 . Seconded by Jaci Grote. One opposed- Mark Galvin,
Motion carries.
Page 3 of 14 unapproved minutes of July 10, 2007
Planning Board

Motion by Jaci Grote to accept the waivers as requested in the application for
Michael O’Donnell Tax Map 10 Lot 1, to operate a seasonal farm stand located at
355 Lafayette Road. File 09-07 . Seconded by Sam Winebaum. One opposed- Mark
Galvin. Motion carries. (See attached list of waivers)

Mel Low recommended that we pass this application. He stated that time is of the most
importance when it comes to vegetables.

Motion by Chairman Cavallaro to accept the application with condition of a new
sketch plan and the chair and planning administrator would check and sign off on
it. Motion fails for lack of a second.

Mark Galvin commented that he does not like the idea of the Chairman and Planning
Administrator checking this, he wants more of a formal review.

Mark Galvin stated no approval for a site plan was ever done on the first meeting with
this board and requested a continuation. Traffic flow and other effects need to be

Discussion followed about the setback, parking and about roping off the area of the tent.

Samuel Winebaum stated a site walk may be beneficial to the Board with an on-site

Melvin Low agreed.

Jaci Grote stated Monday July 16, 2007 at 11 am is when the Board would conduct the
site walk.

All agreed with the site walk time and date.

Motion by Mark Galvin to continue the application for Michael O’Donnell Tax Map
10 Lot 1, to operate a seasonal farm stand located at 355 Lafayette Road with a site
walk scheduled for Monday July 16, 2007 at 11 am. File 09-07. Seconded by Jaci
Grote. All favored. Motion carries.

       2. To amend the Subdivision Plan of Whitehorse Farms and condition #4 on
          the Notice of Decision dated May 22, 2002 to remove the driveway
          restriction from Tax Map 11, Block 15, Lot 13 and Lot 14 to allow for a
          different driveway location at 10 Whitehorse Drive. File 08-07;

Chairman Cavallaro opened the hearing and stated that the applicant has requested a
continuation to the Board’s August 14, 2007 meeting.
Page 4 of 14 unapproved minutes of July 10, 2007
Planning Board

Motion by Jaci Grote to continue the hearing for the requested amendment of the
Subdivision Plan of Whitehorse Farms and condition #4 on the Notice of Decision
dated May 22, 2002 to remove the driveway restriction from Tax Map 11, Block 15,
Lot 13 and Lot 14 to allow for a different driveway location at 10 Whitehorse Drive.
File 08-07 to Planning Board August 14, 2007 meeting. Seconded by Mark Galvin.
All favored. Motion carries.

       3. Continuation of a Major Subdivision Plan for Rickert Investment Real
          Estate, LLC for the property located at 160 Lafayette Road, Tax Map 10,
          Lot 15 to subdivide 57.05 acres into 4 lots with associated paving, grading
          and drainage; File No.: 06-07;

Chairman Cavallaro opened the continued hearing.

Melvin Low recused himself and Chairman Cavallaro seated Bob Brown in his absence.

Kim Reed handed out large plans and smaller colored versions to the Board members.

Attorney Brown represented the applicant and stated that the proposal is to divide the lot
into four lots, the very back lot to Conservation, lot 3 to be for an RCD, leaving the two
lots in front. In approving this proposal the Board would be helping two important
committees. The two main changes requested are to reconfigure the lot line for Lot 3 to
be bigger and the drainage easement to be on this lot and the over flow parking to be
further from the street toward the Conservation lot for setback requirements. Also, since
June a request for a Waiver was submitted, for the dead end street length greater than 600
feet, to allow a street of 1150 feet +/- to the start of the proposed cul-de-sac.

Attorney Brown stated that a memo from Bud Jordan stated the street in question at the
last meeting was built to specifications back in 2001.

Steve Oles, Engineer of AMES, MSC, discussed the proposed plan with revisions.

Attorney Donovan questioned the status of the drainage as reviewed by OEST.

Kim Reed stated that OEST provided an estimate and the applicant is aware of this and
they are waiting on the approval of the waiver for the road.

Attorney Brown agreed that they have received the estimate and decided to wait to see if
the application proceeds and if the waiver is accepted.

Bob Brown questioned if an Escrow Account has been established.
Page 5 of 14 unapproved minutes of July 10, 2007
Planning Board

Kim Reed responded “no”.

Attorney Donovan stated the drainage will be needed before the Board can accept the
application and he questioned the status of engineering work on the drawing changes to
the cul-de-sac as discussed at the last meeting and the small revision requested.

Steve Oles stated that is part of the Waiver requested and would be addressed.

Sam Winebaum asked about a fence and recommended a split rail fence to block the
conservation land.

Chairman Cavallaro discussed the previous meeting concerns as follows:

Attorney Brown discussed the proposed parking area. The parking calculations were part
of the old plans approved by the Planning Board and they are specific with the notes on
those old plans.

Mark Galvin requested that the proposed paved parking area be shown on the plans of
what he sees/reads is requested for about 60 spaces. There is plenty of parking it just
needs to be shown on the plan. He requested the parking calculation to be carried over
from the old plans onto this plan.

Attorney Brown stated that this is part of his Waiver request.

Attorney Brown discussed the waiver request under section 900 of the regulations.
Brown stated he felt it is safe to say that this Board under the safety regulations and their
concerns for the proposed plans have been addressed and should have the Board’s
approval. As far as the Hardship request, this also has been shown & proven by the
applicant to the Board by its unique location. (Copy of Attorney Brown’s request is
attached to these minutes)

Chairman Cavallaro opened the hearing for any public comments or questions.

Priscilla Jenness questioned if this road is to be a town road or private driveway.

Attorney Donovan stated that the road can become a town road only by a Town Meeting
vote to accept it as a town road. This is typically routine once a Planning Board has
approved a subdivision plan showing a road that meets all requirements. The next
opportunity for such a vote would be the March 11, 2008. The standard warrant article
used by the selectmen for such votes includes the condition that the acceptance is subject
to the approval of the Public Works Director, Town Engineer, Board of Selectmen and
Planning Board. (See Article 19 of 2007 Warrant re: acceptance of Winslow Way and
Attorney Donovan’s July 10, 2007 letter to the Planning Board).
Page 6 of 14 unapproved minutes of July 10, 2007
Planning Board

Attorney Donovan continued, if the Board approves the Rickert Subdivision. He
suggested that the Planning Board require the following note to be placed on the plan.

" ________ Road is currently a private driveway. It is approved by the Planning Board
as a town road (subject to town meeting acceptance) only if an RCD is developed on Lot
No. 3. Otherwise, it shall be a private road."

Attorney Donovan further stated that if the Board approves of the RCD Site Plan. The
approval of a site plan for the RCD must be conditioned upon acceptance of ____ Road
as a town road because Section 401.4 (C) of the zoning ordinance requires that an RCD
have frontage on a town road or street. Also, needed is a Contingency. If the Planning
Board approves a site plan for an RCD on Lot No. 3 but the town meeting votes not to
accept the street as a town street, then the Housing Partnership will have to obtain a
variance from Section 401.4 (C) to allow the RCD to have frontage on a private street.

Attorney Donovan stated that an alternative could be that the Planning Board placed a
zoning amendment on the 2008 ballot allowing the frontage requirement for an RCD to
be met on a private street. With these recommendations, the subdivision, if approved, has
legal status either way. The street ends up a public street if the RCD is built and if the
Town Meeting votes acceptance. If the RCD is not approved or approved but not built
and if Mr. Rickert records the plan, the four lots will be created, and the road is private

Jaci Grote questioned why the Conservation lot needed to be separate.

Bob Brown replied that if the subdivision did not proceed, then a lot line adjustment is
necessary and the Conservation Commission would have a deed to this lot.

Philip McDonough of 5 Random Road, stated that he represents a member of Senior
SERVE and he is in favor of the subdivision and of the RCD.

Jim Raynes stated he is also in favor of this and of protection for the Town of Rye.

Margaret Carol, President of Senior SERVE, stated that Rye needs senior housing.

Attorney Michael Donahue from the Housing Partnership stated he would appreciate the
Boards approval and for the record that the Housing Partnership reserves their rights as to
the public street.

Philip McDonough of 5 Random Road spoke as an abutter and individual; that he is also
in favor of this project and feels the proposed plans would be a great use for this property.

Mark Galvin questioned the parking set back required for commercial areas. He is
Page 7 of 14 unapproved minutes of July 10, 2007
Planning Board

Attorney Donovan stated 30 feet on anything other that Residential and Lafayette Road
area, they have different requirements and he shows Mr. Galvin the requirements.

Mark Galvin stated that he feels that a commercial subdivision need not have language in
it to suggest that the site plan is approved for one site on that subdivision and that the
subdivision changes as a result. This is confusing.

Chairman Cavallaro stated he agrees with Attorney Brown that the wording is necessary
to make sure the lots would be used as proposed.

Mark Galvin stated that he sees this as clearly just a 4 lot commercial subdivision. The
added language would just open up loop holes and feels it is not needed.

Mark Galvin stated that he wants some landscaping of the road and trees. Under Section
606.4B he is requesting trees on one side of the road.

Samuel Winebaum stated he is concerned that RCD needs to have walkways available.

Jim Raynes stated that there are miles of maintained trails in the area.

Attorney Donovan stated that if this road is to be a Town road it must meet all
specification and Town regulations.

Discussion followed on Town road regulations and specifications.

Attorney Brown agreed to meet all regulation and specifications regarding the road.

Mark Galvin stated he wants a report from the Town Engineer stating this road is
approved by him before approval of this subdivision.

Martin Zivic referred to Bud Jordan’s memo regarding the road and suggested contacting
him as to whom approved this road years ago and the date of construction and approval.
(See attached memo by Bud Jordan)

Robert Brown stated that this road is much longer than 600 feet and is having difficulty
accepting the hardship request and lot layouts.

Attorney Brown stated that the Chief of Police and Fire accept the layout of the lots.

Mark Galvin stated that the Board should vote on the waiver tonight for the 600’ cul-de-
sac issue and based on the applicant could have the RCD on lot 4 but it is the opinion of
the Board that the RCD would be more valuable to the Town on lot 3 which could merge
with lot 4 to meet the frontage.
Page 8 of 14 unapproved minutes of July 10, 2007
Planning Board

Chairman Cavallaro agreed.

Motion by Mark Galvin to approve the waiver requested for the 600’ cul-de-sac
based on special circumstances that it is the Planning Board’s preference that the
RCD be located on lot 3 and could meet requirements otherwise and that the
existing road is built to town standards with findings in Attorney Brown’s letter and
points 1, 2 & 3. (See attached Waiver letter by Attorney Brown) Seconded by Jaci
Grote. All favored. Motion carries.

Mark Galvin stated he has a list of items he would like to be addressed by the next
meeting and they are: the parking calculations foot note on the plans; trees to be on one
side of the roadway between with an initial height of 10 feet or more and compatible with
the other trees in the area; inspection of the road by the Town Engineer that it meets the
specifications; a bond or a letter of credit to cover the trees; add a street name, addresses
for each lot; and that if lot 3 does not become the lot for RCD then it will merge with lot
4 to be noted.

Chairman Cavallaro stated he does not agree with the merging of lot 4 and 3 as suggested
by Mark Galvin. He stated that his requests are that the road drainage to be approved by
the Town Engineer as well as the plans for the cul-de-sac construction.

Attorney Donovan recommended hiring OEST to do some borings on the road to see if it
was built to Town Specification at the applicant’s expense.

Steve Oles recommended that the Town Engineer test the road with borings at the end in
the Hammer Head section where the road will be torn up anyway.

Discussion followed.

Motion by Mark Galvin to continue the application for the Major Subdivision Plan
for Rickert Investment Real Estate, LLC for the property located at 160 Lafayette
Road, Tax Map 10, Lot 15 to subdivide 57.05 acres into 4 lots with associated
paving, grading and drainage; File No.: 06-07. to the August 147, 2007. Seconded by
Robert Brown. All favored. Motion carries.

   1.      Conceptual Consultations – No Action Required.

   2.      Old Business:

Chairman Cavallaro opened the meeting for old business.

        A. Digital Voice Recording
Page 9 of 14 unapproved minutes of July 10, 2007
Planning Board

Samuel Winebaum thanked Mark Galvin for his donation of the recording system.

Samuel Winebaum stated that this system is easy to use and hear. (Priscilla Jenness
handed him the copy of the hand out from the last meeting) He suggested using the time
stamps to confirm the times when each agenda item is started and ended. This could also
help the transcriber of the minutes. Some issues to discuss are how long to archive the cd
recording. The minutes once approved are the official record. An Attorney dealing with
others using this type of recording feels they work well. The recorder would be controlled
by Town Officials and on a computer that is not connected to any network so there would
be no security risk.

Samuel Winebaum stated online he conducted a survey of the surrounding towns and
cities to see what they used. PDF file is recommended. In order to put the digital
recorder on the web it would require access to the server and streaming and other issues.

Chairman Cavallaro stated that the Board would have to budget for the costs associated
with the digital recording. Also, could the CD be allowed as evidence in a court?

Samuel Winebaum stated that if the recordings could be available to the public on a stand
alone computer it would be great.

Mark Galvin stated that the Board could avoid the paper minutes completely by recording
on the CD, posted on the website and the written minutes could be just the verbal parts
that are in auditable and the time stamp information on the CD. Then if there is a dispute
then they have access to the CD for clarification.

Chairman Cavallaro stated it would be beneficial to be able to go directly to the part of
the meeting wanted instead of fast forwarding thru the tapes.

Mark Galvin stated that using this recording will cost less than what it is costing the
Town now.

Mark Galvin and Samuel Winebaum stated the town would need: A stand alone
computer, cd-burner, someone to maintain the minutes, computer and website and there
to be official versus public records.

Jaci Grote stated this was just a trial and does not like the feeling that this is being forced
upon her. The other Board members need to be allowed input and she would like to
proceed to other items on the agenda.

Chairman Cavallaro agreed and proceeded to the next agenda item.
Page 10 of 14 unapproved minutes of July 10, 2007
Planning Board

        B. East Coast Greenway

Jaci Grote stated this proposal is to have a bike path created all down the coast area.
They want the path to be 10 feet wide with restrictions as to who could and what is
allowed to use the path.

Chairman Cavallaro stated that a map showing the proposed path would be very helpful.
Jaci Grote stated she would contact the representative for more information. The Town of
Rye should be able to decide what is best for them.

Chairman Cavallaro hearing no further comments proceeded to New Business.

   3.      New Business:
        A. 2008 Zoning Amendment Changes to Consider

Chairman Cavallaro stated he would like to send a letter to all the Town Boards regarding
the Zoning Amendments and wants to solicit information for the Board’s to consider. (A
copy of this letter is attached to these minutes.)

Jaci Grote stated that the Master Plan may need to be referred to on any proposed

Mark Galvin stated that he does not think sending the letter out is the responsibility of the
Chairman. The Chairman’s role is to provide over all meetings, and members as myself
feel slighted when there’s a class system on the Planning Board created by Chairmanship.
That the Chairman has direct contact to all the resource to help get advice, counsel, and
clarification on issues etc. and the other Board members have had their wrists slapped
whenever attempting to get information that the Chairman may have. At least this has
happened to me.

Chairman Cavallaro stated to clarify that comment, it has been the general rule from
Town that you go through the proper channels and the channel goes through the
Selectmen to get permission to go to the other channels.

Samuel Winebaum stated that they only way he got Don’s letter was because it was
forwarded by Kim Reed.

Mark Galvin questioned does she (referring to Reed) forward everything, or just what she
Page 11 of 14 unapproved minutes of July 10, 2007
Planning Board

Mark Galvin stated that Alan Gould gave him a big speech last week about costs of
Attorney Donovan and under no circumstances is Planning Board members ever suppose
to seek clarification from anybody but himself to try to save the Town some money.
Mark continued and stated he thinks is wonderful but he thinks it’s just a process for Alan

Chairman Cavallaro stated that it would be confusing if the members were all asking
questions and then interpreting them differently. Having Kim and myself as the main
contact persons keeps this process simplified.

Mark Galvin stated he agreed, we don’t want duplication of that part of the process but he
doesn’t understand the process of what is simplicity and considered new material. Alan
Gould told me that Attorney Donovan is not supposed to be involved in anything without
the vote of the Planning Board. If we want the opinion of Attorney Donovan that the
Town should pay for. Not just the request of the Chairman or Kim Reed and no offense
to Kim Reed.

Chairman Cavallaro stated it didn’t seem like it was just questions when the letter was
sent out to Attorney Donovan, it was very specific questions and he doesn’t understand
what the motivation was for this letter to be sent.

Mark Galvin stated it is not your job to determine my motivation.

Jaci Grote stated that this Board is a group that represents the Town; we are a committee
all tethered together in this effort and working on projects that are specific to the group.
The proposals etc. need to be unified between the members and if you or anybody is
working outside of the meetings this is a major concern.

Mark Galvin stated that Chairman Cavallaro worked outside of this meeting on July 3,
2007 when he sent the letter to Attorney Donovan.

Chairman Cavallaro responded that was not true, Kim was asked some questions.

Mark Galvin stated then Kim worked outside of this meeting at your direction.

Mark Galvin continued stating that he needs a process to get his questions answered and
questioned what is it?

Priscilla Jenness stated that the members are here and he has access.

Mark Galvin questioned, ok can I ask a question now and see if you can answer it or do
you want to schedule another meeting?
Page 12 of 14 unapproved minutes of July 10, 2007
Planning Board

Mark Galvin stated that his question that he has sent by emails and memo’s to multiply
Town officials and Planning Board was; how we decide if a site plan review is required
by commercial or multi residential unit is applicant or lack of applicant? What is the
process to decide whether they need to come to the Planning Board or request a waiver in
writing to the Planning Board? My interpretation reading the requirements is that there is
almost nothing that can happen on a commercial site or can happen on a multi-family
housing without either minor/major site plan review or a written document stating that
this Board as a group waives the requirement for them to come in.

Chairman Cavallaro questioned what Mark felt this applied too.

Mark Galvin stated the fruit stand person, why didn’t the fruit stand person have to come

Kim Reed stated Chairman Cavallaro questions were specific to an applicant and
application that is currently pending before this Board and were forwarded to the Town
Attorney for his review to assist this Board. She feels that Mark is not being truthful to
this Board right now and that his emails and memos were answered by Town Officials by
email and a conversation with Town Administrator, Alan Gould. His questions are
specific to Wentworth by the Sea, who is not currently before the board.

Mark Galvin stated that he did not know the process and wanted to hear from the Town
Attorney his opinion on a question, how else would he get the information?

Chairman Cavallaro stated how about right here at the meeting.

Mark Galvin stated that it says for 400 feet of asphalt they can request a waiver by
writing to the Planning Board and it gets brought up at a meeting and the Planning Board
decides if their going to waive it. That is not the way it is working now, that’s the
problem. Either we change it on the 2008 warrant article or the Board is consistent with
the way it is written now under 405.4.

Chairman Cavallaro requested Mark to write down exactly what he disagrees with or his
questions to get them addressed.

Mark Galvin stated another concern is that Susan Zarlengo told him if the DES has issued
a permit for something then it is outside of the Town’s jurisdiction.

Chairman Cavallaro stated he believes this is not true. They are required to have State
permits however; they are still required to go through all Town approval processes.

Mark Galvin requested he be told why he is misinterpreting this.
Page 13 of 14 unapproved minutes of July 10, 2007
Planning Board

Mark Galvin questioned the process for clarification; is to send requests or questions to
Kim Reed or to the Chairman?

Chairman Cavallaro stated to send requests or questions to both Kim and himself.

Mark Galvin stated he has a legal process question for an interpretation of a zoning
ordinance of land development. Is there a case of construction on a commercial site in
the Town of Rye that doesn’t require either a site approval or a written waiver from the
Planning Board? This is the question he has been asking and never gets an answer too.

Attorney Donovan stated that he is authorized to answer questions for the Town
Administrator or Kim Reed and Susan Zarlengo. Also, the Chairman of the Planning and
Zoning Boards when necessary. Questions need to be given to one of these people for
me to review and given my professional advice.

Mark Galvin stated he disagrees with this process. Does his question need to be on the
next agenda to get answered?

Chairman Cavallaro requested the question in writing to the Planning Board and he
would review what was needed to answer the question.

Mark Galvin stated that she is interpreting the requirements for site plan and feels she is
interpreting it wrong (referring to Zarlengo).

Attorney Donovan stated that Mark was given the answers for procedure several minutes
ago and that he was worked with the Town for over 23 years and there has not been a
problem before.

Chairman Cavallaro stated that he does not want the Planning Board and himself as
Chairman tarnished with personal axes to grind and that this needs to stop. If in deed he
has a procedural question, he can put it in writing, submit it and it will be placed on the
next agenda for a public hearing.

   B.      NH DOT Safe Routes to School

Kim Reed stated due to the late hour she would like this item to be discussed at the next
meeting. All agreed.

   C.      Long Range Planning Committee – Jaci Grote

This was not discussed at all.
Page 14 of 14 unapproved minutes of July 10, 2007
Planning Board

   4.     Adjournment

Chairman Cavallaro requests a motion to adjourn.

Motion by Mark Galvin to adjourn the meeting at 10:25 p.m... Seconded by Robert
Brown. All favored. Motion carries.

Respectfully submitted by,

Heather Austin

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