October 7, 2013 Planning Board RCL Meeting Notes


Draft Revision A – Provided by the Rye Civic League

Present:  Jeffrey Quinn (alternate), Anne Crotty (alternate), Priscilla Jenness, Phil Winslow, Ray Tweedie, Bill Epperson, Mel Low, Jerry Gittlein

Also present:  Kim Reed, planning administrator, Michael Donovan, Town attorney


            Editor’s note:  As this meeting occurred at the Rye Junior   High School, there is no video and thus no time references.


The order of the two public hearings was reversed relative to the agenda, and the approval of minutes was postponed until after both of the public hearings.

Driveway application 25 Gray Court

The applicant was not present and there was nobody present to speak to the application.  Ray Tweedie argued that he did not think that the application should move forward.  Although the drawing is very good, some information is missing.  If approved, there will be three driveways in a small area, one next door and the other across the street.  There are no properties in the area on record as having two driveways.  There also would be a lot of impervious surface.  Looking at images, there is not a lot of green.  Jeffrey Quinn and Anne Crotty concurred.  Phil Winslow expressed concern regarding water flow and safety issues.

John Murphy, the abutter across the street, spoke against the application for the reasons cited.  Additional parking can be achieved by running the existing driveway further back towards the shed, he said.  Lisa Moll,21 Gray Ct., a direct abutter echoed the safety and drainage issues, and pointed out that it was a blind corner.

The motions to take jurisdiction and to deny the driveway application, both made by Ray Tweedie, carried unanimously.

Preliminary major site development application, Changing Places LLC, 511 Wallis Rd. (former Rand Lumber property)

Christian Smith, Beals Associates spoke to the application.  He was accompanied by Attorney Tim Phoenix and Scott O’Neal and one other person.  He stated that “John†could not be present.

Mr. Smith related the progress that was being made with the Southeast Land Trust with regard to placing a portion of the land in conservation.  He indicated that he believed that this would ultimately be successful.

Mr. Smith showed a new color plan of the site, which showed the wetland in drab olive and the upland (i.e. non wetland) in green.  The plan showed a 14-15 acre proposed parcel which would include the Retirement Community Development (“RCDâ€), with the rest of the land to be devoted to conservation, if possible.  In the absence of a sale of the land for conservation purposes, the plan was to subdivide that parcel into 14-16 single family home lots.

The proposed RCD parcel occupied the lower right (east) corner of the plan.  The remaining area was to be devoted to conservation land.  There was a third parcel, which apparently would include the existing barn formerly used by the Rand Lumber Co.  The portion of that proposed parcel adjacent toWallis Rd.was shown in drab olive, indicating wetlands.  The new plan, unlike the one displayed at the prior meeting, expanded the area to be devoted to conservation land.  Instead of the proposed lot line being parallel toWallis Rd.but some distance away from it, a portion of the proposed conservation land abutsWallis Rd.

In response to a question from Phil Winslow, Mr. Smith indicated that he expected a 3-5 year process for sale of the proposed parcel to a conservation trust.  In response to a further question from Mr. Winslow, Mr. Smith indicated that the applicant was willing to wait out the five years.

Ray Tweedie asked how access to the single family lots would be provided, if the sale to a conservation trust does not reach fruition, given that the portion of the proposed conservation parcel alongWallis   Rd.was all wetlands.  Mr. Smith responded that Liberty Common could be extended to facilitate development.

There was also discussion about a consolidation of land with the owner of the property adjacent to the “barn†previously occupied by Rand Lumber.  The house is only a few feet away from the barn, Mr. Smith said.

Mr. Smith indicated that they have a preliminary drainage analysis.  Attorney Donovan confirmed that he had reviewed and it appeared that this provided a necessary item that was lacking as of the prior meeting.

Mr. Smith then displayed an enlarged plan showing only the RCD parcel.  In response to the discussion at the prior meeting, no connection toPatriots Wayis shown.  Rather, the private road ends in a hammerhead.  The plan showed the proposed private road exiting Wallis Rd. in an approximately perpendicular direction, and then turning approximately 90 degrees to proceed northeast towards, but not quite reaching, Patriots Way.

Mr. Smith then discussed the drainage.  There would be collection into rain gardens, a two bay treatment, and then an outlet at the wetland setback.  Water would not travel erosively, he said.

Mel Low asked whether there was sufficient land for a circle rather than a hammerhead.  Mr. Smith stated that there would be, however he cautioned that there was an approximately 12 foot vertical drop down fromPatriots Wayto the proposed level of the road.

Bill Epperson stated that they had heard clearly from the public at the last meeting that there should not be a connection toPatriots Way.  He suggested, however that an aesthetically pleasing crash gate could be provided as a compromise position.  Public Works Director Dennis McCarthy remains adamantly opposed to the absence of a means of access fromPatriots Way, Mr. Epperson said.  It wouldn’t be an iron gate with padlocks, but could be opened using strobe lights from an emergency vehicle.  Mr. Smith indicated that, if there is a connection to Patriots way, the grade would be 5-6 percent after on-site material is transferred to fill in the area.

Ray Tweedie complimented the application on a great job.  He stated that he was opposed to any connection toPatriots Wayand pleased that more land would be going into conservation.

There was then a discussion about whether jurisdiction should be taken before or after the Board retains AMEC to study the drainage.

The hearing was then opened up to public comment.

Peter White, 58 Liberty Common stated that they are hearing a lot about the 19 RCD units, but he is concerned about the 14-16 single family lots that may ultimately be developed.  He asked whether the Board needed to look at the drainage and traffic relating to that.

Bill Epperson responded that their charge was to look at the RCD application.  If the sale of the parcel for conservation falls through, another Board would have to look at development of the proposed conservation parcel.  Traffic is unlikely to be a problem, with 2.6 trips per day projected for each of the RCD units.

Peter White responded that the drainage would be altered dramatically if there is development of the proposed conservation parcel.

Jerry Forte,4 Patriots Wayasked what the assumptions were with regard to rainfall.  He cited an unusually rainy spring four years earlier.

Bill Epperson responded that the DPW had jurisdiction.  If they say the drainage is not acceptable another solution will be needed.

Mr. Smith referred to the use of Cornell extreme precipitation tables which are even more pessimistic than the “100 year storm†data.  While the latter projection was 6 to 6.5 inches of rainfall over a 24 hour period, the former was 8.2 to 8.5 inches.  The current site has very limited ability to infiltrate water.  They are planning on replacing the existing material with loam.

Attorney Donovan pointed out that the scrutiny now is much more extensive than what it was 40 years ago when Liberty Common was developed.

The resident at 82 Liberty Common spoke about normal rainfall flooding lawns in the area and rainwater flowing constantly through his basement.

Attorney Donovan responded that the Land Development Regulations have specific requirements that downstream storm water capacities be analyzed.

George Schumacher, 32 Liberty Common spoke about the Town failing to maintain storm water easements, causing water to back up.

There was a question from the audience about the value of the proposed conservation parcel.  The person stated that the value could be $5 million just for the land.  Mel Low responded that it would not be that high as open land.  The assumed $400,000 per lot includes the cost of development, which is substantial.

Eileen Recher, 18LibertyCommon stated that she had heard that the Southeast Land Trust did not have the financial wherewithal to complete the transaction.  That would mean that 14-16 additional lots would be built on which is a concern.  She continued, stating that she is against the crash gate, and that she appreciates that Members Low and Tweedie support her position.  She asserted that she could find no other such gates in Town.  Bill Epperson stated that was because there were none.

A resident onPatriots Waystated that she was against a connection toPatriots Way, whether there is a crash gate or not.  Bill Epperson responded that he’s trying to find a compromise between the DPW and residents.

Ray Jarvis, 83 LibertyCommon stated that he counted approximately 61 dead end streets in Ryeending in cul-de-sacs.  The Police and Fire manage to deal with these.  This would be the 62nd case.  There should be an explanation as to why it couldn’t be addressed the same way as the 61 cases before.

Mel Low responded that the issue had been addressed before as almost every dead end street is over 600 feet long.  Examples were provided by Mr. Low and members of the audience, including White Birch,Whitehorse Dr.,Young Ln.andForest Green Rd.

Editor’s note:  The Town’s Land Development Regulations (“LDRâ€), section 602.2(A)(7) limit dead end streets to 600 feet.  The proposed private way for the proposed RCD is longer than 600 feet and would require a waiver.  In addition, the LDR requires separate ingress and egress points, separated by at least 300 feet, for any subdivision of more than 10 lots.  Furthermore, Liberty Common is already much longer than 600 feet, and much, if not all, of the upland portion of the proposed conservation parcel, as displayed at the beginning of the meeting, is much more than 600 feet from Wallis Rd.  Thus, it would appear that a waiver of the 600 ft. street length requirement would be needed to subdivide the proposed conservation land into 14-16 single family lots unless Liberty Common is converted from a dead end street and extended to connect back with Wallis Rd. in a second location.  Alternatives might be to connect with Alehson St. in Rye or Eastwood Dr. in Portsmouth, however these are both also dead end streets and it appears likely that residents living on these streets would oppose any connection turning them into through streets or making them even longer.

Alluding back to Mr. Jarvis’ statement, Bill Epperson stated that just because something had been done wrong 61 times, that does not mean that it should be done incorrectly yet another time.

Eileen Recher, 18LibertyCommon asked whether there was a way to resolve this without a crash gate.  Mr. Smith responded that the lengths of the Town’s fire trucks had been run through the “Auto Turn†computer program, and there was enough room for them to turn around with the hammerhead.

Sally King,535 Wallis Rd.asked why the DPW was objecting, inasmuch as it was proposed to be a private road.  Mr. Epperson responded that the police and ambulance must be able to get down there.  The DPW is also concerned about Town utilities.

Mike Wolfe,1 Libbey Ln.asked why the application that was presented, which did not include a crash gate, was being discussed.

Town Attorney Donovan responded that the application, as presented, would require two waivers, one for a dead end street of more than 600 ft. and the second for a hammerhead at the end, which is not allowed.  Editor’s note:  The LDR, section 602.2(A)(7) permits only a cul-de-sac, a teardrop, or a loop.

A resident on Liberty Common in the audience asked why two units could not be taken out, creating room for a cul-de-sac.  Priscilla Jenness stated that if there are two fire trucks and an ambulance on scene, a cul-de-sac would be helpful.

Bill Epperson asked whether a teardrop would be possible.  Mr. Smith responded that it was, but there would be less clearance with the abutting Patriots Way, which they wanted to screen with vegetation.  Mr. Epperson indicated that a variance would still be needed.  Attorney Donovan pointed out a 40 foot minimum inside radius requirement for teardrops.  Editor’s note:  See LDR, section 602.2(A)(7)(b). 

Attorney Donovan suggested that a couple of units could be eliminated at the end.  Mel Low suggested that these could be moved to the other end.  Mr. Smith responded that they could not be, due to the wetlands buffer.

The public hearing was then closed.

Ray Tweedie stated that he did not see a reason for a teardrop if fire trucks could get in or out.  The applicant has applied for bonuses.  If units are taken away, that would put upward pressure on the price that the applicant would need to get for the proposed conservation parcel.  Overall, what they have proposed is good.  There is no need for further enhancements.

Mr. Tweedie then moved that they accept jurisdiction, which motion carried unanimously.

Mr. Epperson then suggested that an escrow of $5000 be set up, $2000 to hire AMEC to study storm water management, $2000 for attorneys fees, and $1000 for miscellaneous.  Mr. Tweedie so moved, indicating that review of the condo documents by the attorney would also be needed.  All were in favor.

A site walk was then scheduled for Saturday, October 26 at 10:00 a.m.  Mr. Epperson indicated that the public was invited, and that it would take 1 ½ to 2 hours.

Ray Tweedie suggested that a preliminary vote be taken on the requested waivers and the bonus, in order that the applicant be provided with direction.  Bill

Epperson disagreed, stating that they should look at the site.  Priscilla Jenness agreed.  Bill Epperson then suggested a straw poll on the length of the road and the hammerhead.

Attorney Donovan then suggested a preliminary, non-binding vote be taken on certain issues, including the waivers and bonuses.  There was then discussion about the bonuses to which the application would need to be entitled in order to get to the 19 units proposed.  Editor’s note:  See the Town’s Zoning Ordinance, section 401.4.  Attorney Donovan indicated that the bonus for excellence in design only adds 1-2 units to the maximum of 16.  To get to the 19 units proposed, there would need to be an additional bonus for open space.  Mr. Tweedie responded that 50 percent of the parcel was to be undeveloped land.  Attorney Donovan responded that that was a different analysis.  His preliminary view is that the applicant would not be eligible for the cluster bonus without the 65 acres of proposed conservation land.  Editor’s note:  It is unclear what Attorney Donovan’s logic is, unless he is saying that some of the proposed conservation land would need to be part of the proposed RCD parcel to provide sufficient open space.  See section 401.4(P) of the Zoning Ordinance, which refers to “50% of the parcel†being open space in order to receive the bonus. That appears to indicate that only the 14-15 acre proposed parcel for the RCD development is relevant.

Bill Epperson suggested that there be no preliminary vote on bonuses tonight, as there is a disagreement on the cluster bonus.  He stated that he did not have an issue with the length, and that he was more willing to fight with the DPW than the residents, suggesting that he ultimately would not favor the crash gate.

The members then shared their preliminary views.

Mr. Quinn stated that the need for a crash gate had not been demonstrated.  The road length was OK.

Ms. Crotty stated that she is concerned about the hammerhead at the end, and would like a cul-de-sac or loop.

Ms. Jenness indicated that she was concerned about the length of the street.  They need to look at the “lay of the land.â€

Mr. Winslow stated that he would like to learn what the concerns of the DPW and the Fire Department are.

Ray Tweedie stated that the plan was fine as presented (apparently approving of the hammerhead and the road length).

Mr. Low stated that the length was OK, but there should be no crash gate.

Mr. Gittlein stated that he is comfortable with the crash gate.

On motion of Ray Tweedie, the matter was continued to the October 26 site walk and the November meeting.  All were in favor.

Approval of minutes

The minutes of the September 10, 2013 meeting were approved with numerous changes.


The payment of $155.13 from the Cavaretta escrow to Attorney Donovan was approved, as was $260 from the same escrow to AMEC.

TRC subcommittee

Ray Tweedie reported that the subcommittee had not met as there were no applications to review.

Rules and Regulations subcommittee:  Public hearing on rules changes scheduled

Bill Epperson stated that the subcommittee’s chairman was on maternity leave.  There has been significant work already.  Kim Reed spoke to Town Attorney Donovan and the suggestion was that the proposed rules be put in warrant article form so that there can be a public hearing.  This was done.

The following proposed rules changes were discussed:

  1. Amendment of section 306 relating to the Aquifer Protection District.  There was a change to provide a mechanism for the Town to monitor of continued compliance.  Kim Reed indicated that this had been carried over from the prior year.  Due to last minute changes there had not been time for a public hearing.  There was discussion about a provision to facilitate notification to a subsequent owner.  Attorney Donovan indicated that it could not be assured that the “rebuttable presumption†would be enforceable.  Ann Crotty stated that she believed that this was overreaching.  With a minor change, amendment 2014-01 was moved to a public hearing, Ms. Crotty voting no and the others in favor.
  2.  Amendment 2014-02 changed a name from “New Hampshire Pollution Control Commission†to “DES.â€
  3. Amendment 2014-03 was to measure the size of yards from the “drip line.  Ray Tweedie suggested that the term “eave†be used instead as “drip line†refers to water dripping from plants.  Kim Reed stated that “drip line†was the term suggested by the Building Inspector.  Attorney Donovan stated that “drip edge†might be better.  Kim Reed indicated that she would talk with the Building Inspector and have the matter noticed for a hearing.
  4. Amendment 2014-04 relates to the wetlands buffer and the size of vernal pools.  Ray Tweedie stated that the intent was for vernal pools of any size, not those of an acre or more.  Editor’s note:  This is an apparent reference to section 301.7(A)(1) of the Zoning Ordinance.  Attorney Donovan stated that some sharp attorneys had suggested that the wetlands buffer applied only to vernal pools of one acre or larger, which is preposterous because there would not be any such pools.  According to Mr. Tweedie, the change in punctuation to a semicolon weights all of the terms equally and clarifies that the one acre size applies only to ponds.
  5. 5.      Amendment to section 500.1 of the Zoning Ordinance.  This changes the minimum width from 10 feet to 9 feet.  Bill Epperson stated that it is consistent with what has been going on.  A recent applicant had looked at this and demonstrated that, out of dozens of parking lots, most had parking spaces 9 feet wide or less.  Editor’s note:  This was an apparent reference to the preliminary site plan approval addressed at the prior meeting for the restaurant at Foyes Corner. Attorney Donovan quipped that this could be like the 61 cul-de-sacs.  Laughter ensued.  Editor’s note:  This an apparent reference to the comments of Ray Jarvis earlier that evening in connection with the former Rand Lumber property.
  6. Amendment 2014-06 to section 301 of the Zoning Ordinance, relating to theBerry’s Brook Watershed wetlands setback.   This is a change to use a more recent March 2003 map, rather than one from the 1998 Master Plan.  The Master Plan being worked on will also be updated.  The more recent map shows a better delineation according to the description.  Attorney Donovan confirmed that it was a better map.
  7. Amendment 2014-07 extends the expiration period from 1 year to 2 years for variances and special exceptions.  The legislature has meddled where they should not have, Attorney Donovan said, and provided for a two year period.  It also says that the ZBA can extend the period for good cause, as opposed to a new application being required.  In his view a new notice to abutters would still be required.

Editor’s note:  The rules change discussed at a Rules Committee meeting a few months earlier calculating the lot coverage in terms of the buildable, rather than total, area appears to have been deleted.

On motion of Ray Tweedie, the remaining items, 2-7 above, as amended during the meeting, were moved to a public hearing at the November 12, 2013 meeting.  All were in favor.

Long Range Planning

Bill Epperson revealed that there was another draft of the Master Plan, including all of the information from the last meeting and Attorney Donovan’s comments.  The Rockingham Planning Commission (“RPCâ€) will be retained to provide certain information, which is expected in approximately two weeks.  Ray Tweedie asked about the cost.  Bill Epperson revealed that it was $1200.  After Mr. Epperson suggested that the next meeting be scheduled, Kim Reed suggested that they wait until the RPC responded, and no meeting was scheduled.   Mr. Epperson indicated that the next meeting would be a work session to finalize the document and that that would be followed by a public hearing.


The motion to adjourn carried unanimously, and the meeting adjourned at approximately 9:18 p.m.