Planning Board December 10, 2013 RCL Meeting Notes

HTM version for Civic News:   RyePlngBoardNotes121013revBfinal


Final Revision B – Provided by the Rye Civic League

Present (counterclockwise around table):  Ray Tweedie, Selectman Priscilla Jenness, Mel Low, Planning Administrator Kim Reed, Bill Epperson, Town Attorney Michael Donovan, Jerry Gittlein, Phil Winslow, Jeff Quinn

Persons present from the public included:  Peter Crawford, Sam Winebaum, Dominique Winebaum, and a number of persons attending in connection with the Foyes Corner Restaurant.


  1. Foyes Corner Restaurant site plan approved despite unanimous opposition from nearby residents and other Town residents citing traffic, odor, lot coverage and other concerns.
  2. Minor site plan for patio at the Wentworth-by-the-Sea Country Club approved.
  3. Proposed zoning ordinance defining setback measurement as being from the eave tabled until next year.
  4. Proposed zoning ordinance changes relating to wireless facilities scheduled for a public hearing on January 14, 2014 on a 6-1 vote, Mel Low dissenting.
  5. Proposed zoning ordinance change expanding the aquifer protection district scheduled for a public hearing on January 14, 2014.
  6. Proposed changes to Retirement Community Development Ordinance that could affect further variances to be sought for the former Rand Lumber property scheduled for a public hearing on January 14, 2014.
  7. Long Range Planning meeting scheduled for January 21, 2014 to discuss Master Plan draft.

Editor’s note:  For ease in finding particular sections using the archived video and audio on the Town website, the elapsed time is indicated.  Use the slider and the elapsed time indicated at the bottom of the video window to fast forward to the desired section.  Videos on the Town website may currently be accessed at www.town.rye.nh.us by clicking on “Town Hall Streaming” at the bottom left of the screen.  Follow the link for “Town Hall Live Streaming,” then find the meeting by date under “Previous.”

The video begins at 7:00:14 p.m. (0:00 elapsed)

Minutes (0:46 elapsed)

The minutes of the October 8, 2013 meeting were unanimously approved with changes.  The minutes of the November 12, 2013 meeting were unanimously approved with changes.  It was then decided that the minutes of the site walk would not be addressed, at least in this meeting. Editor’s note:  This is an apparent reference to the site walk of November 23, 2013 at Foyes Corner relating to the Bluestone Restaurant.

Major site development plan, Bluestone Foyes Corner Restaurant (15:27 elapsed)

Chairman Epperson stated that the reference to a “minor” site development on the agenda was a “typo” and that it should refer to a “major” site development plan.  6:58 PMEditor’s note:  The erroneous agenda had been corrected that very afternoon on the Town’s website.

Eric Weinreib of Altus Engineering reported that a permit had been issued by the DOT.  A site walk was conducted on November 23.  An AMEC letter dated December 5 has been responded to.  Editor’s note:  AMEC is the engineering firm retained by the Planning Board to evaluate the applicant’s proposal.  AMEC is comfortable will all of the Altus responses.  A screen has been added to the dumpster to the plans.  The sight distance information has been added to the drawing.  The gas line to the fire pit has been added to the utility drawing.  The drainage computations have been addressed.  Mr. Weinreib showed the site plan and pointed to the east side, indicating an area that needed to be mowed on a regular basis to prevent woody vegetation from becoming established and to maintain healthy growth.  That will be added to the drawing.  It is in the residential buffer area on the east side, he said.

Mr. Weinreib stated that the employees have been increased to 24.  The bar stools have been kept at 20, and the seats have been reduced to 237, for a total of 257, a reduction of 30, he said.

Mr. Weinreib stated that they will work with the abutter on the southerly boundary on more dense vegetation.  There will be a revised landscaping plan.  Mike LaBrie stated that that the use of evergreens rather than deciduous trees had been requested.

A waiver would be requested relating to the designated loading area, Mr. Weinreib said.

Jeff Quinn asked about the sewer hookup.  Mr. Weinreib stated that there should be revised comments in the next couple of weeks.  There have also been a couple of DES questions.  Kim Reed stated that she had been in touch with the City of Portsmouth earlier that day and confirmed what Mr. Weinreib had said.  In response to a question from Mr. Quinn, Mr. Weinreib stated that they are seeking conditional approval and would not proceed with construction until the sewer has been approved.

Phil Winslow asked about the addition of outside seating to the 257 seats and the impact on parking.  Mike LaBrie stated that that had been addressed at the last meeting.  It is possible that the parking would be overwhelmed by about 20 seats, or 50 at this point, if the outside space is opened up.  However, the function space has closable walls and will allow them to manage their capacity.  Editor’s note:  The 30 seats added to the second figure stated by Mr. LaBrie appears to match the reduction of 30 seats resulting from the addition of ten employees.  It is unclear why Mr. LaBrie is referring to two figures, unless his intention is that the seats would not actually be reduced, but instead the seating figure was reduced only to provide a calculation that would permit the parking requirements to be met.  Mr. Winslow asked whether the fire pit might be a distraction if visible from the road.  Mr. LaBrie stated that that had been addressed previously, and that it would not be visible from the road.

Mr. Winslow asked about the scrubbing of the exhaust venting and the odors.   Mr. LaBrie stated that he had spent considerable time researching the issue.  The cost would be $80,000 to $100,000 to install the equipment.  However, this sort of system is not warranted.  He read an e-mail from a Joe Christie, Senior VP of Sales and Marketing with Trimark in Massachusetts, who contacted Captive Air, which manufactures hoods.  The last unit that Trimark had installed was in Stamford, CT about 5 years earlier.  There were three story buildings on either side of the one story restaurant where that was installed, Mr. LaBrie said.  The customer could not afford to replace the filters as often as had been recommended.  The use of the unit was discontinued and no one complained, the e-mail said.  The e-mail speculated that the units did not work as advertised.    Another e-mail from Hood Tech, Inc. indicated that the maintenance and up-front cost were expensive, and the unit did not eliminate all of the odors.  Mr. LaBrie stated that “Roy” had noticed some odors when Petey’s was located on the site 15 years earlier.  Editor’s note:  This is an apparent reference to Roy Teigland, owner of the property across the roundabout from the proposed restaurant.  Mr. LaBrie described how fry oils are now much more pure and high tech, and have a much higher smoke point, which reduces odors.  Also, they will filter the oil more often.  Mr. LaBrie then described various oil handling procedures to prevent odors.

Ray Tweedie asked whether there was a more recent use intensity statement than the one from the 18th of October.  He noted the change in the maximum number of employees per shift from 14 to 24.

Comments by abutters on the Bluestone proposal (34:21 elapsed)

Chairman Epperson asked whether there were any abutters who wanted to speak.

Sharon Sparks, 26 Sagamore Rd., stated that Mr. Weinreib had had his back to the audience when he described the changes to the residential side and asked him to repeat his description.  Mr. Weinreib showed the plan and stated that AMEC just wanted to ensure that the east portion and the swale were mowed regularly.

Roy Teigland, 30 Sagamore Rd., stated that he is not dead set against the entire project, but he fears degradation of the entire area due to the pollution.  The percentage of the total project represented by the $80,000 to $100,000 is not great.  The sewer is costing $300,000.  He referred to a comment by Phil Winslow stating that he had smelled the exhaust when driving by Petey’s, which has 85 seats in the dining hall.  It did not take an abutter to bring up that issue, he said.  The board should seriously look at the device if it is available

Chairman Epperson stated that “the expert testimony would say that even though you spend $80,000 or $100,000 it really doesn’t work that well anyway.”  Editor’s note:  What Mr. Epperson refers to as “expert testimony” is apparently the hearsay and speculative e-mail read by Mr. LaBrie a few minutes earlier.  He continued, referring to Mr. LaBrie’s statements regarding to the grease and oil.  Chairman Epperson speculated that the overuse of the oil had caused the odors at Petey’s.  Mr. Teigland disputed that, stating that Petey’s would use the latest oil, and that he changes it daily.  Mr. Epperson responded that Petey’s also fries a lot more.  Mr. Teigland stated that Petey’s was also only 85 seats compared to 260, suggesting that the percentage of fried food at the proposed restaurant would not need to be nearly as high to generate the same level of odors.  People come to the seacoast for fried food, Mr. Teigland said.  He stated that it’s just one opinion that the system does not work.  Several times during Mr. Teigland’s comments, Chairman Epperson softly said, “um hum,” and “I understand.”

Sharon Sparks expressed continuing concern about property devaluation and that she would not be able to sell her property.  Chairman Epperson asked whether she understood that the site for the proposed restaurant was “business zoned” and that there could be significantly less desirable things put on that property.  Personally, Mr. Epperson stated that he believes that anything that replaced that white building would be a significant improvement.

Dorothy Katlen, 3 Sagamore Rd., and her daughter Lynn who resides at the same address raised the issue of traffic that turns around in their driveway.  It takes her mother sometimes 20 minutes to back out of her driveway, Lynn said.  She also expressed concern over the seagulls and elimination of the trash.  She raised the issues of devaluation and odors and stated that they are tired of wiping “bird crap” off of their cars.  She suggested that the $80,000 to $100,000 be spent to reduce the odors.  She expressed concerns about the traffic, the smell, the seagulls and the crows.  Mr. LaBrie stated that the dumpster area would be enclosed with water piped in to allow the area to be washed down.  The trash will be picked up six days a week.  There will be absolutely no smell associated with the dumpster area, he said.  Mr. Epperson referred to the traffic analysis and stated that it was available.

Mary Engle, Oral Ln., stated that her home had been purchased ten years earlier and, at the time, the Building Inspector had told her that a bar/nightclub could not be built in that area.  Editor’s note:  Mike LaBrie’s wife, Susan LaBrie was the Building Inspector for the Town until she resigned during the Summer of 2011.  It appears that Ms. Engle was referring to her.  A few years ago, Sam at Brit Bits tried to put in an ice cream shop and was denied because of the heavy traffic pattern, Ms. Engle said.

Debra Senf, 8 Sagamore Rd., stated that, all summer long, she spends 20 minutes trying to get out of her driveway.  Chairman Epperson said “I know” several times.  He argued that traffic is significantly better with the roundabout.

(50:19 elapsed)

Ms. Sparks asked whether the board felt that the traffic would be increased significantly.  Mr. Epperson offered to poll the board.  He started by stating that he believed that there would be some impact, but not enough to notice.  The effect would not be significant, Mr. Quinn agreed.  Mr. Winslow stated that the roundabout had helped.  Some additional traffic would be present, and there would be some summer backup, he said, that would be difficult for the residents.

(51:46 elapsed)

Mr. Gittlein stated that he agreed with Chairman Epperson that the proposal would not significantly impact traffic.  Mr. Low stated that he had been a Selectman when the roundabout was approved.  The restaurant will affect the traffic some, but it would not shut down the area.  Ms. Jenness stated that there would be more traffic, but it is not something that would stop the project, and it would not make a huge difference.  Mr. Tweedie stated that the traffic study was done by an expert.  The circle is engineered for the volume.  Even if everyone left or arrived at once, the circle could handle it, Mr. Tweedie claimed.

Debra Senf stated that the delivery trucks and cars needed to be considered, as well as the fact that there would be a bar.  The Rye Police are already there often.  The traffic would affect them terribly.

A resident referred to the study having been done in 2010.

Mark Schlieper of Frontier St. stated that the roundabout could handle 20,000 cars per day.  It works pretty well.

Chairman Epperson asked about lighting.  Mr. Weinreib showed the lighting plan and explained what light could be seen and how bright it would be.

Ms. Sparks asked for an explanation of the reduction of seats in the restaurant.  Mr. LaBrie explained that a good faith estimate of 14 employees had been made, which is part of the calculation of the number of parking spaces required.  That was increased by ten to 24.  Each employee takes one parking space, but there are three seats per parking space, so there is a reduction of 30 seats.

Mr. Epperson asked for Attorney Donovan to speak about the traffic issue.  Attorney Donovan stated that the study used a peak Sunday, from 2:00 in the afternoon to 8:00 in the evening, during August 2010.  The average hourly traffic at the bridge on Sagamore Rd. was 1022 vehicles.  Sagamore Rd. south of Berry’s Brook Ln. is 389 vehicles at the peak.  Editor’s note:  Berry’s Brook Ln. is south of Foyes Corner.  Mr. Donovan appears to be referring to an hourly figure for traffic.   The traffic engineer estimated that 90-199 trips per peak hour would be generated by the restaurant during the peak period, Mr. Donovan said.  However, about half of those would be pass by trips that would have gone through the roundabout anyway.  Thus, the additional traffic would be 45-100 cars per hour.  That compares to 1000 cars going north on Sagamore and 400 going south.  There are four different directions that the traffic can take, he said.

Mr. Sparks commented that the 1000 cars at the bridge on Sagamore would not have come out of New Castle, so they must have come out of Foyes Corner.  Mr. Sparks stated that the numbers did not make sense.

Roy Teigland asked what would happen if a year went by and it smells like Petey’s.  He asked whether a contingent provision could be put in place to address that eventuality.  Chairman Epperson reiterated that it is business zoned, and an application meeting all of the criteria that would not be as appealing could be filed.

It’s going to take a lot of customers to support an operation of this size, Mr. Teigland said.  Attorney Donovan stated that the Board could place reasonable conditions on any of its approvals, but these would need to be justified.  A lot more research on the issue would be needed before that is done.  Mr. LaBrie had made a very good presentation on how he was going to manage the odors, Attorney Donovan said.  An independent expert analysis would be needed before the Board even thought of imposing a condition.  Chairman Epperson stated that he agreed, and that was “our attorney’s opinion.”

Chairman Epperson then opened the discussion up to the public, not just to abutters.

Comments by non-abutters regarding the Bluestone proposal (71:26 elapsed)

Guy Swanson, 70 Sagamore Rd., stated that there was a need for a backup plan in case traffic backs up or there are odors.  Perhaps the occupancy should be limited, with a three year phase in, he suggested.  Chairman Epperson stated that he did not believe that that was a viable business model.  Mr. LaBrie stated that it did not sound like it would work.  The infrastructure needs to be put in place, he said.  Chairman Epperson stated that a lot of due diligence is required to ensure that the best possible decision is made.

Mr. Swanson asked what the recourse would be if the project goes forward.  Someone in the audience said they could move.  Attorney Donovan stated that anyone who is directly affected by the Planning Board’s decision has the right to appeal to court.  If the property is operating and there are unanticipated impacts there could be complaints to the Board of Selectmen.  But the land has been zoned for business use for many years.  There is nothing in the traffic study that shows that the congestion would be added to.  It might be possible to complain to the Building Inspector and the Health Officer if there are odors, he said.

(75:41 elapsed)

Peter Crawford, 171 Brackett Rd., asked whether his letter had been received by the Chairman.  Mr. Epperson stated that he had received it, but that he had been out all day.  Ms. Reed stated that the letter had been e-mailed electronically as requested.  Mr. Crawford stated that he had a presentation that he would like to make in conjunction with Sam Winebaum, who is a former member of the Planning Board.  Chairman Epperson expressed concern about the delay from viewing the presentation.  Mr. Crawford stated that it would take about 10 minutes, so Mr. Epperson agreed to proceed.  He then stated that Sam Winebaum would start the presentation.

Sam Winebaum, 52 Cable Rd., stated that he and Mr. Crawford agree that the development is a positive move for the corner.  But, it’s critical that it be done in the correct fashion.  There are a lot of concerns.  First, the public and the Board need to ask why there was a “typo” referring to a minor site development rather than a major one.  Chairman Epperson stated that it is a major site development and that that had been noted time and time again.  Mr. Winebaum stated that none of the prior notices say that it is a major site development.  Editor’s note:  All of the notices prior to the one for this meeting referred simply to a “site development” or “final site development.”  The notice for this meeting initially referred to a “minor site development,” however that was corrected the afternoon prior to the meeting, shortly after Mr. Crawford delivered his letter, which noted the error.  Mr. Tweedie asserted that the prior notices had referred to it as a “major site development, “ and that was published in the newspaper.  Mr. Crawford interjected that he had the notice with him, and it did not.  Editor’s note:  The legal notice for the November 12, 2013 public hearing, obtained from www.seacoastonline.com, which typically includes what has been published in the Portsmouth Herald, refers to a “final site development plan.”

            Mr. Winebaum stated that the requirements of a major site development plan go well beyond those for a minor site development in terms of submissions.  There are issues of lot coverage and parking to maximize the number of seats.  The seats have been reduced by the better estimate of the number of employees.  However, it’s still 57,000 sq. ft. of parking and building on 86,000 sq. ft. of uplands, the rest being wetlands.

Mr. Winebaum continued, stating that this is a gateway into Rye.  This is the first thing that people will see driving into Rye.  A 3D flyover is needed.  This is also a Development of Regional Impact.  This is clearly not a small project.  There are issues with traffic and snow storage.  There has been no consideration of pedestrian and bike circulation, Mr. Winebaum said.

Mr. Crawford then addressed the board, and passed out copies of his presentation. Crawford stated that there are three requirements for a major site development and these are all met.  He stated that he has a copy of what appeared in the Herald.  It says “final site development.”  All of the agendas and minutes also say that.  He questioned whether the Board had validly accepted jurisdiction of this case, as the minutes of the last meeting it was referred to as a “final site development,” without saying whether it was major or minor.  Chairman Epperson referred to an October 18 application that referred to a major site development.  Mr. Crawford stated that the application referred to a major site development, but the notice to the public did not.  The public could have assumed that it was a tear down and construction of a building of identical size, which would be the assumption if it was a minor site development, inasmuch as a minor site development would have to be within the 15 percent increase parameters.

Mr. Crawford then showed a slide indicating how the applicant had gotten to the 113 parking spaces using three restaurant seats per parking space, two bar stools per parking space and one employee per parking space.

Mr. Crawford showed a graph indicating how the parking spaces had been increased by all of the variances and waivers.  The ZBA had granted a variance to place 16 parking spaces in the wetlands buffer, and also to reduce their width from 10 feet to 9 feet.  Starting with the 287 seats and 113 parking spaces, if the extra spaces in the wetlands buffer were not available the restaurant would be down to 250 seats and just under 100 parking spaces.  Without the reduction in width the restaurant would be reduced to 220 seats and about 80 parking spaces.

Mr. Crawford continued, stating that, before the Board is another waiver to reduce the length of the parking space from 18.5 to 18 feet as well as to reduce the width of the aisle from 26 to 24 feet.  The only way to get to the seats is to squeeze in as much parking as they can, and they do it through waivers, variances and encroachment into the wetlands buffer.  Without all of these, the restaurant would be at about 200 seats and 80 parking spaces.

Chairman Epperson stated that they already have the variances and the waivers.  Mr. Crawford responded that they don’t have the waivers yet.  Ray Tweedie stated, for the record, that a zoning ordinance change had been proposed reducing the required width because a study had been done by a prior planning board as to the appropriate width of parking spaces.  Editor’s note:  While this may be true, the ordinance change was proposed at the September 10, 2013 meeting after Mr. LaBrie presented a study of parking space widths in connection with this application.

Mr. Crawford responded to Mr. Tweedie stating that the amendment needed to go to the legislative body and it needed to be passed.  You cannot take into account an ordinance that has not been passed, he said.  Mr. Tweedie stated that:

“once it’s proposed then we are under that effect and we’ve had a public hearing on it and moved it to the warrant so that is the law and those are the rules, you can look it up and Attorney Donovan can comment.”

Mr. Crawford responded that he had looked at the law earlier in the day.  It is the opposite.  If a warrant article is on the table that would forbid something that has not been applied for then that would be barred.  The opposite is not true.  Attorney Donovan stated that Mr. Crawford is correct.  Editor’s note:  See RSA 676:12, I.

Mr. Crawford stated that the final adjustment has been admitted, which is the increase in the number of employees.  Ten employees that all need parking spaces reduce the seats by 30.  If it weren’t for all of these, the restaurant would be down to around 175 seats.  That’s something that everyone in Town would be in favor of.  We’re not opposed to this, it just needs to be reduced, he said.  One way to do that is to decline to grant the waivers, Mr. Crawford said.

Mr. Crawford then referred to the Master Plan and the Zoning Ordinance.  He stated that they clearly contemplate small facilities.  The ordinance refers to “restaurants, tearooms and ice cream shops.”  While the proposal fits within the letter of the ordinance, it does not fit within the spirit.  A tearoom is something small, a shop.  The voters contemplated something small when they passed the ordinance.

Mr. Crawford then addressed the traffic.  Saturday has the largest amount of traffic, he said.  Pete LaBrie had said that the peak for exiting traffic would be about 8:30 p.m.  But, the peak for the existing traffic is 400-500 at the peak time, but that is down to 125 cars by 9:00 p.m. on Sagamore Rd. at Berry’s Brook.  By midnight it’s down to 40 cars.  Using the data in their study, assuming the peak at 9:00 p.m. and splitting the traffic four ways as the study does, there are 30-40 cars per hour, which is around 20 percent of the traffic.  It is not insignificant.  Also, there are two other parcels in the area that they want to develop.  If those uses are as intense as this one, the increase would be 60 percent.

Mr. Crawford stated that Priscilla Jenness had raised the issue of snow storage at the very first meeting, and that it had not been addressed.  The Altus Engineering plan says that snow will be stored at the pavement edge or be trucked off site.  But, the LDR says that adequate space for snow storage must be provided.  He asked how adequate space for storage could have been provided when the plan to truck the snow off site constitutes an admission that there is not adequate space.  That doesn’t make sense, he said.

Mr. Epperson disagreed, stating that, if there is three inches of snow it can be stored on site.  But if there is five feet of snow, everyone is trucking snow.  Mr. Tweedie stated that the applicant, according to the plan, C1, point 11, is saying that, if the space is not adequate the snow will have to be trucked off site and the applicant has testified that he will do so.

Mr. Crawford argued that the storage must be adequate for a reasonably large snowfall.  Mr. Epperson asked whether that was 10 feet, 5 feet or 3 feet.  He stated that, if the snow cannot be stored on site it must be trucked off site.  Mr. Crawford stated that if there is not adequate storage for a reasonably likely large storm then trucking off site does not meet the letter of the LDR and the applicant needs a waiver.  There is no space for storage that would not reduce the parking, other than the islands, Mr. Crawford argued.  After Mr. LaBrie stated that that was not true, but did not provide any supporting argument, Chairman Epperson interrupted and said “go on Peter, go on.”

Mr. Crawford continued, stating that he did not believe that regional notification had been provided.  Mr. Epperson stated that there is not a regional impact.  Mr. Crawford referred to the RSA and number two, proximity to neighboring communities.  Two of the four roads from the traffic circle pass into Portsmouth within a few hundred yards.  There are also major state roads.

Mr. Crawford suggested the further actions, further review, a 3D flyover, detailed analysis of storm water management, notification of the RPC, the State and the City of Portsmouth.  The seating and parking areas need to be reduced, he said.

Mr. Crawford referred to RSA 674:44 and stated that it needed to be considered as the waivers had not yet been granted. Mr. Epperson interrupted and stated that they knew those requirements.  Mr. Crawford read from the RSA, stating that it was required that “strict conformity would pose an unnecessary hardship to the applicant,” and the waiver “would not be contrary to the spirit and intent of the regulations” and “specific circumstances relative to the site plan.”  This is not a case where there are specific circumstances.  They simply wanted to build a restaurant larger than the site will handle and they need waivers to accomplish it.

Mr. Crawford referred to Boccia v. City of Portsmouth, 151 N.H. 85 (2004).  It has to be due to a special condition and must be something that cannot be accommodated some other way.  They do not need these waivers to build a restaurant.  They need them to build a restaurant as large as the one that they want.  One way to shrink this down is to deny the waivers and reach an accommodation that doesn’t penalize the abutters.  One of the criteria for granting a waiver is that it cannot negatively impact the property values.  All that they have is a statement that the current building is dilapidated so the property values would increase.  He is not sure that a majority of the Board believes that, and the abutters certainly do not believe it.

Elisa Bolton, 304 Pioneer Rd., stated that she sees this as a large-scale project that could have negative as well as positive impacts.  It will impact the quality of life of nearby residents due to the noise, smell and congestion.  It would chip away at the family and community character of Rye.  It will increase congestion on a town thoroughfare.  The Town newsletter and local papers are filled with stories about the problems of managing the swelling of people during the summer.  She stated that she hoped that the Board would think carefully about granting the variances that would allow such a large restaurant to be built.

Decision on the Bluestone site development application (97:51 elapsed)

After Ms. Bolton spoke, Mr. Epperson, without asking whether there was anyone else wished to speak, closed the public comment section.

Mr. Tweedie then moved, without any other comments by members of the Board, to grant a number of waivers.  First, he moved, pursuant to section 611.4(A)(2) to grant a waiver permitting a 60 foot dimensional requirement where 63 feet is required.  He cited as a basis for the waiver RSA 674:36, I(n) and its provision that “specific circumstances relative to the subdivision, or conditions of the land in such subdivision, indicate that the waiver will properly carry out the spirit and intent of the regulations.”  Editor’s note:  Mr. Tweedie’s cite is incorrect.  This language appears in RSA 674:36, II(n)(2).  Town Attorney Donovan interjected that the reference should be changed to refer to a site plan, which has the same criteria.  Editor’s note:  The applicable statute relative to site plans is RSA 674:44, III(e)(2), referred to by Mr. Crawford earlier. 

Priscilla Jenness seconded the motion.  Mr. Tweedie referred to a memorandum from Altus Engineering, and stated that what was requested for parking was larger than what is required in Portsmouth, Newington and North Hampton. It is safer and reasonable and makes sense, he said.  Editor’s note:  Mr. Tweedie failed to address the requirement that there be specific circumstances relative to the site plan or the conditions of the land.  Without asking whether there was any further discussion, Chairman Epperson called for a vote.  The motion carried unanimously.

Mr. Tweedie then moved, pursuant to section 611.4(C) of the LDR to grant a waiver to allow deliveries during non-business hours.  There are notes on the site plan as to where the delivery area is going to be, Mr. Tweedie said.  He cited RSA 674:36, I(n) again, referred to “specific circumstances relative to the site plan, or conditions of the land in such site plan, indicate that the waiver will properly carry out the spirit and intent of the regulations.”  Editor’s note:  The language cited is actually from RSA 674:44, III(e)(2).  Mr. Quinn and Mr. Winslow both raised their hands to second the motion.

Mr. Tweedie argued that there would not be a safety concern as there would not be traffic in the parking lot at the times when deliveries occur.  The section of the LDR cited refers to the adequacy of loading areas, not the time during which deliveries are permitted. Without asking whether there was any further discussion, Chairman Epperson called for a vote.  The motion carried unanimously.

Mr. Tweedie then asked for Attorney Donovan’s opinion as to whether a waiver of section 611.4(8)(A) of the LDR was needed.  Editor’s note:  It appears that Mr. Tweedie intended to refer to section 611.4(A)(8), which requires that “adequate space for snow storage shall be required.”  Mr. Tweedie argued that sheet C1, note 11 on the site plan indicates that they are agreeing to “these terms” and that it then becomes enforceable.  Attorney Donovan appeared at first to be confused, and referred to the loading area conflicting with the handicapped parking spaces as indicated on the site plan.  Mr. Tweedie then directed him to the snow storage issue.  Attorney Donovan stated that “the key word there is ‘adequate,’ and what is adequate in the eyes of the Planning Board will suffice.”  He then stated that a waiver was not necessary.

Mr. Tweedie then moved to accept the final major site development plan, to tear down an existing building and replace it with a 250 seat restaurant, subject to the following conditions:

  1. That the use intensity statement be updated to reflect a maximum of 24 employees per shift rather than the 14 currently stated.
  2. That sewer and water service from the City of Portsmouth be approved and installed in accordance with the City’s memorandum of November 11, 2013 and as described on sheet C4 of the plans;
  3. That a revised landscaping plan, sheet L1, be provided for the southern portion of the property abutting the Rye Water District and share that with the Swansons, who had expressed concerns, and that approval of acceptable evergreens be granted by the Town planner;

Mr. Quinn noted an error in the number of seats.  That was then changed to 257 seats.

Mr. Donovan suggested that the use intensity statement include a summary of the RTI oil treatment system and the oil management system.  He also suggested that a note be placed on the plan indicating that the loading and unloading would take place prior to 12 noon.  Finally, he suggested that the Board consider a small site restoration bond, which would provide for the eventuality that the developer “goes south” after the building is torn down and the site torn up so that the site could be reseeded.  However, he added that he was not sure that this was necessary for “this applicant.”

Mr. Tweedie agreed in part with Attorney Donovan and amended his motion to include as part of item one a description of the RTI system and best management practices for it.

At Chairman Epperson’s suggestion, a fourth condition based on DES approval of the sewer connection was added.

Mr. Winslow asked, given concerns from abutters, about the loading and unloading and what time it would start.  Peter LaBrie stated that the first cooks came through the door about 7:00 a.m. and that it would be impossible to take deliveries before then.  Mr. Quinn asked whether trash pickup would occur during that time window as well.  Mike LaBrie stated that trash could be picked up during the hours of operation without problems.

Mr. Tweedie added a fifth condition, that there be a note on the plan that loading and unloading in the loading zone would be between 7:00 a.m. and 11:00 a.m., which does not deal with the dumpster, which unloading would be during business hours.

Mr. Tweedie then read the revised conditions, and added a sixth, that the Chairman execute the plan and the Town Planner record the plan.

Mr. Quinn seconded the motion.

Without asking whether there was any further discussion, Chairman Epperson called for a vote.  The motion carried unanimously.

Break (110:21 elapsed)

A break was taken as the persons attending for the Bluestone application left.

Wentworth-by-the-Sea Country Club minor site development plan (114:11 elapsed)

Chairman Epperson reconvened the meeting.  The approval sought was for a ground level patio adjacent to the clubhouse.  Mr. Diodati spoke to the application.  Jason Bastille, Superintendent of the Golf Course and Ben Holmes with Rye Beach Landscaping, the contractor for the patio, were present with him.  The patio is about 1300 sq. ft., and would be made of bluestone, Mr. Diodati said.  It will be constructed once the weather breaks in March.  There was discussion about the construction.  Phil Winslow asked about drainage.  Ms. Reed stated that, while the application is technically a minor site development plan, waivers of all of the major site plan items have been requested.

Ray Tweedie moved that jurisdiction be accepted.  All were in favor.  He then moved that sections 405.2(D) and 403.2(D) of the LDR be waived, and that, in lieu of a site plan, the drawings, use intensity statement and sketches be accepted.  All were in favor.

There were no public comments.

Mr. Tweedie then moved that the minor site development plan be accepted.  All were in favor.

Yard setbacks, measurement from the drip edge (123:14 elapsed)

Amendment 2014-003 was addressed.  Mr. Tweedie stated that he had added the definitions for eave and drip edge.  He stated that the setback would be measured from the eave rather than the building.  Attorney Donovan said that the original request had come from the Building Inspector, and that this does not do what the Building Inspector wants it to do if he understands his position correctly.  He understands that the Building Inspector’s predecessor had started measuring from the drip edge, and that the current Building Inspector had continued the practice.  He wanted the ordinance amended to reflect the existing practice.  Ms. Reed stated that he wanted something simple.

Mr. Winslow disagreed with measuring to the drip edge.  The purpose of the ordinance is to ensure adequate cubic volume between the building and the lot line.  He said that he had talked to two engineering companies and one architect.  This adds complexity and cost for the applicant.  Portsmouth provides that only if the drip edge is more than 18 inches from the building is the measurement taken from that point.

Dominique Winebaum commented that a neighbor had an overhang that went almost to the edge of the property line.  Sam Winebaum said that there could be an overhang extending the second floor out aircraft carrier style.  It affects water permeability.  Peter Crawford stated that the drip edge definition seems to be an orphan.  It is not referenced in the proposed language and having it in there would confuse the voters.

Chairman Epperson stated that, if they leave it alone the Building Inspector can continue with what he is doing.

Mr. Tweedie moved that it be tabled to next year.  The motion carried unanimously.

Expiration of permits (137:06 elapsed)

There was no discussion from the Board or the public.  The motion to move amendment 2014-008 to the town warrant for March 2014 carried unanimously.

Amendment to wireless facility ordinance (138:26 elapsed)

Attorney Donovan explained that the federal and state governments are trying to encourage wireless cellular communications.  There is legislation at both levels saying that co-location can no longer be subject to Planning Board review.  Only new towers or substantial modifications to existing towers can be reviewed.  The existing ordinance would require co-location to come before the Planning Board.

Mel Low noted that there are only five locations in Rye where cell towers are permitted.  He asked whether that would change.  Attorney Donovan stated that this would not change that, but an addition to an existing structure, such as the Pulpit Rock tower, even though not in the district, could consist of a cellular facility added to it.  The existing tower in the south end of Town could be added to as a co-location without coming before the Planning Board under the proposed ordinance.  There is an exception for substantial modifications, which would still need to come before the Planning Board.  Attorney Donovan read the criteria.

Selectman Jenness asked what would happen if the Town rejected it.  Attorney Donovan said that they would then wait and see what happened when the first application came in.

Mel Low stated that a tower was proposed in the conservation area.  That money now goes to fund the ambulance.  Another one was proposed near the school’s soccer field, however the School Board turned that one down.

Mel Low referred to a planned tower that was to be located adjacent to a woman’s house near Garland Rd., destroying the house.  The Planning Board forced the tower to be moved 600 feet away.  Attorney Donovan recalled the matter, and stated that certain Planning Board members who would have voted to approve it did not show up for the final vote, and Mr. Low’s view prevailed.  It was disapproved and the Town then bargained to move it further away.  That was a very astute move by the Planning Board, he said.  Attorney Donovan continued, stating that the Town was taken to court over the denial, but after it had gone very far, the applicant had decided that the prudent course was to put it where Mr. Low wanted it.  There needed to be a special Town Meeting to change the ordinance to permit the tower in this new area, he said.

Sam Winebaum asked about the Pulpit Rock tower and whether that be a candidate for a new cellular facility.  He also asked whether the church, which has antennas inside the steeple, could have antennas put on the outside of the steeple.  Attorney Donovan stated that they could, however a new tower could not be located at the Pulpit Rock area.  However, an antenna could be placed on the outside.

Phil Winslow asked whether HDC Rules would trump this.  Attorney Donovan stated that he did not believe that the HDC Rules could prevent an antenna placed on an existing structure.

Mel Low stated that the church steeple had been removed and rebuilt in fiberglass, and that it looked the same as it had before.  Chairman Epperson stated that he had been on the church Board of Elders at the time.

Chairman Epperson asked what would happen if they dug their heels in and said they would not pass the revised ordinance.  Attorney Donovan stated that they would run into a problem when a carrier wanted to place an antenna on an existing structure.  You would most likely end up in Federal Court when you tried to enforce the ordinance, he said.

Peter Crawford asked whether the proposed amendment conformed with State law, or whether it went beyond it.  Attorney Donovan stated that it did not go beyond it.  Mr. Crawford asked why the State law could not simply be referred to in the ordinance.  He argued that, if the State or Federal law changed the Town might neglect to update the ordinance.

Mr. Tweedie moved to place 2014-009 on the 2014 Warrant.  The vote was 6-1, with Mr. Low voting against.

Payment of escrow (153:14 elapsed)

The payment of $120.67 to Attorney Donovan from the Changing Places, LLC escrow was approved unanimously.  The payment of $241.33 to Attorney Donovan from the Bluestone Properties escrow was approved unanimously.  The payment of $293.04 to Attorney Donovan from the Cavaretta escrow was approved unanimously.

Proposed amendment to the Flood Plain Ordinance (154:10 elapsed)

Attorney Donovan stated that this would be a separate warrant article on the ballot as it related to the flood ordinance, not the zoning ordinance.  It has not been assigned a number.  He explained that the ordinance was being amended to include the additional requirements of federal law in the ordinance.  The laws governing the flood insurance program have additional requirements.  There has been only one variance application relating to the flood plain ordinance, however that has been withdrawn.  Peter Loughlin was the attorney on that matter and addressed the federal requirements.  Nothing is being done that isn’t required anyway, he said.

Phil Winslow asked what the meaning was of the word “nuisances” in the proposed ordinance.  Attorney Donovan stated that it would be what the Zoning Board of Adjustment decided after listening to both sides.

The motion to move this article to a public hearing on January 14, 2014 carried unanimously.

Proposed amendment relating to ground water protection area (159:40 elapsed)

This is number 2014-010.  It was requested by the Rye Water District according to Ms. Reed.  It relates to PCS’s in this area.  Attorney Donovan stated that he believed the scope would be expanded to a much larger area.

Mr. Tweedie asked about the extent of any study.  Ms. Reed referred to a letter from Art Ditto of the Rye Water District.  Attorney Donovan showed a map and stated that everything from Rye Beach to the center of Town is in the wellhead protection area.  Selectman Jenness asked whether the treatment of roads would be affected.  Attorney Donovan stated that it would not add any restrictions which do not already exist.  The revised ordinance would bring applicants in for a special use permit as was done with Hoefle.  Editor’s note:  This is an apparent reference to the Hoefle subdivision on Marjorie Way.

Attorney Donovan pulled out a large map, and showed how the area from Love Ln. to the Town line would be added to the aquifer protection district.

Phil Winslow asked about a provision that would prohibit subsurface storage of heating oil, gasoline, or other refined petroleum products.  He raised a concern that this might apply to LP gas.  Editor’s note:  This is also known as propane.  That resulted in a discussion indicating that existing installations would be grandfathered, but new installations would require that the applicant come forward.

Ray Tweedie noted that this was a substantial change for a lot of people.  Chairman Epperson noted that a lot of people are moving away from fuel oil to propane, and they bury the tanks.  He stated that it seemed like a bit of an overreach.  Attorney Donovan stated that the DES and the Water District wanted to do this.  Chairman Epperson surmised that propane, as a gas, would not be as significant a danger as heating oil.

Peter Crawford commented that propane is a liquid under pressure, but at atmospheric pressure it becomes a gas.  Sam Winebaum read some material that he found indicating that propane is generally not hazardous.  However, he stated that it is vital to protect water resources.

It was suggested that it be put on the agenda, and that additional research be done with the DES and regarding any dangers posed by propane.

The motion to move this to a public hearing on January 14, 2014, and to invite the Rye Water District to attend, carried unanimously.

Correction of error relating to Retirement Community Development ordinance (174:18 elapsed)

This is number 2014-011.  Attorney Donovan stated that this corrects an error that was discovered in connection with the Changing Places case.  Editor’s note:  This is the development of the former Rand Lumber parcel.  When the RCD was set up, there was concern that applicants would go to the Zoning Board of Adjustment to get variances, Attorney Donovan said.  He referred to section 401.7 of the Zoning Ordinance which effectively prohibits the ZBA from giving a variance to the density requirement.  Then section 401.8 permits the Planning Board to grant waivers from certain requirements.  There is a typo, in that subsection E is referred to in both sections.  It is a fundamental requirement and should not be in section 401.8.  The intent must have been that it refer to subsection G.

Attorney Donovan stated that Rand is considering asking for some waivers, now that preliminary approval has been given.  Editor’s note:  This is an apparent reference to Changing Places, LLC which is the applicant for a site plan and a subdivision plan relating to a Retirement Community Development (“RCD”) on the former Rand Lumber property.  Attorney Donovan chuckled.

In response to a question from Mel Low, Attorney Donovan stated that the applicant is considering asking for a waiver on the square footages of the units to permit bigger units.  Since larger units are not listed under either section 401.7 or 401.8, he has provided an opinion that they could apply for a variance on the size of the units.  Editor’s note:  The unit size restriction appears in section 401.4(M) of the Zoning Ordinance.  Ray Tweedie commented that the maximum is 1800 sq. ft., which is big for two bedrooms.  Editor’s note:  Section 401.4(M) also limits the units to two bedrooms.

Ray Tweedie enumerated the sections of 401.4 which are not mentioned in either section 401.7 or 401.8.  He stated that, after obtaining approval from the Planning Board, an applicant could go to the ZBA to get variances which could substantially alter what the Planning Board had approved.  Attorney Donovan summarized how the determination had been arrived at in 2006 as to which subsections would be listed.

Mel Low suggested that subsection M should be added to the list of items that the ZBA was not permitted to grant variances to.  Ray Tweedie noted that the purpose of the provisions is to permit the Planning Board to wheel and deal with the applicant.  He suggested that both subsections B and M be added.  Editor’s note:  Section 401.4(B) requires a minimum parcel size of 10 acres, including wetlands.  Phil Winslow agreed.  Ray Tweedie suggested that subsections B, G and M of section 401.4 be added to section 401.8.  Editor’s note:  Section 401.4(G) limits the types of dwellings.  Section 401.8 lists the subsections of 401.4 that the Planning Board is permitted to grant waivers for.  Attorney Donovan suggested that subsection N be added, which relates to the two parking spaces per unit, as well as subsection L, which requires a minimum age of 62.

Attorney Donovan stated that he had received a call from Attorney Phoenix regarding Changing Places.  They may have some other things that they want to request variances for as well, he said.  Preliminary applications are all non-binding.  If this is posted right away, they are not going to be able to be grandfathered against it, he said.  Editor’s note:  See RSA 676:12.

Ray Tweedie noted that it was positive that the Planning Board be permitted to wheel and deal to get what they want.  Chairman Epperson agreed.  Mr. Tweedie moved that number 2014-011 be moved to a public hearing on January 14, 2014, with the changes discussed, adding subsections B, G, L, M and N to section 401.8.   The motion carried unanimously.  Editor’s note:  The deletion of subsection E was apparently already in the draft being considered, so was not mentioned in the motion.

Technical Review Committee (187:04 elapsed)

Mr. Tweedie reported that there had been no activity as there had been no applications.

Long Range Planning and Master Plan (187:10 elapsed)

Chairman Epperson stated that a set of meetings needed to occur for a public hearing on the Master Plan.  Dominique Winebaum stated that there could be up to two public hearings and asked what was being planned in that regard.  She stated that they had submitted extensive comments that may require professional assistance.  Those comments could not be dealt with in a public hearing, she said.  Ray Tweedie suggested a meeting to discuss all of this among themselves.  Mel Low stated that that had been done.  Dominique Winebaum stated that there had been five minutes and that was all.  Mel Low stated that they were ready for a public hearing.  Kim Reed and Ray Tweedie disagreed.  Ms. Reed stated that the document was not ready for a public hearing.

Jeff Quinn asked whether portion of chapters two and nine were being done.  It was revealed that Attorney Donovan was working on Chapter 9, which would be completed the next day, he said.  Kim Reed stated that documents from the Winebaums and from Anne Crotty had been submitted on August 14, and should be in the packets.

The next Long Range Planning meeting was scheduled for Tuesday, January 21, 2014 from 6:00 p.m. to 10:00 p.m.  Kim Reed stated that it would be noticed by agenda, within 24 hours, according to the right to know law, but not as a public hearing.  Kim Reed suggested that public input should also be permitted.

Rules and Regulations (193:36 elapsed)

Mr. Tweedie stated that there had been no meetings, the work had been done here.  Editor’s note:  Keriann Roman is Chairman of that Subcommittee, has recently had a baby, and has not been attending recent Planning Board meetings.

Former Rand Lumber parcel (193:51 elapsed)

Mel Low asked about pending applications.  Kim Reed stated that she was not aware of any, other than Rand.  Nobody on the Planning Board appeared to know when they would be coming back.  Ray Tweedie noted that, as the application would now be a final one, that they would come before the TRC first, so there would be advance notice.

Adjournment (194:14 elapsed)

Whereupon the meeting adjourned at approximately 10:14 p.m.