RCL Planning Board Notes April 9, 2013

Printable version of the RCL Notes:


Final Revision C – Provided by the Rye Civic League

Present:  Bill Epperson, Mel Low, Priscilla Jenness, Ray Tweedie, Phil Winslow, Jerry Gittlein, Keriann Roman, Curtis Boivin

Also present:  Kim Reed, planning administrator

New officers

Mel Low nominated Bill Epperson as Chairman, Phil Winslow seconded.  All were in favor.  Phil Low was nominated as Vice Chairman.  All were in favor.  Ray Tweedie was nominated as Clerk by Jerry Gittlein, Phil Winslow seconded.  All were in favor.

CIP Committee

Ray Jarvis, Chairman of the CIP Committee, was permitted to present out of order.  He described the Capital Improvement Program (“CIP”) process, inasmuch as the Planning Board is required to provide a representative to the CIP committee.  The CIP plan is now in its fourth year.  Marty Klenke and others laid the groundwork in the first year.  About 18 hours of meetings are needed annually, and an equal amount of time is needed for outside work.  The law says that the committee will recommend to the Board of Selectmen those projects that the CIP Committee “looks kindly on.”  His opinion, and he believes that of others on the Committee, is that that would be presumptuous.  The knowledge is with the department heads, not the Committee.  They strive to make each year’s document, which is looked at by the Board of Selectmen and the Budget Committee, better.  The Committee meets twice a month from May through September.  Last year there were four members.  This year there will be five, reducing the amount of work per person.

Rand Property

The Rye Planning Board then conducted a Conceptual Consultation with Wallis Road Properties, LLC for subdivision of the former Rand Lumber property (lots 71 and 66 on tax map 16, a total of approximately 90 acres) to obtain Retirement Community Development (“RCD”) housing, commercial land and open spaces.

Present from the potential petitioner were:  John O’Neill (partner and contractor), Ed Hayes (partner and Ricci Lumber representative), Christian Smith (engineer), Larry Gormley (lawyer), and Jamie Long (soil tester).

Wallis Road Properties has obtained an option to purchase the property.  The parcel consists of approximately 25 acres close to Wallis Road, and developable land, including the old retail building (commercially zoned at 511 Wallis Road), and approximately 65 acres of back lands that range from dry to wetlands.

John O’Neill, 59 years old, has developed 30 properties in Essex County in MA and Rockingham County in NH.  Recently, he developed the Sawyer Green property in Dover, an “Over 55” community of 62 units.  In these developments, he supplies all energy and provides facility management.

Mr. O’Neill is proposing that Phase 1 of this project will include 18 “over 55” homes that will have a modest lot and range in price from $350,000 for 1,700 sq ft to $550,000 for 2,400 sq ft.  Editor’s note:  Mr. O’Neill was unaware that the Rye Planning Board does not have an “over 55” ordinance, rather it has a “62 and over” ordinance.  Mr. O’Neill stated that the Rye tax rate is $8 per $1,000 valuation.  Editor’s note:  in fact it is $11.22 per $1,000 (excluding District assessments).  He has proposed that access to the 18 units be from a private road off of Wallis Rd., possibly extended to connect to Patriots Way, currently a cul-de-sac located off of Liberty Common.  Four of the units would be located on a dead end street off of the private road.

Mr. O’Neill is proposing that Phase 2 include commercial development of the former retail building.  He is open as to the ultimate use, from General Store retail to office space.

Finally, Phase 3 may consider a sale of 65 acres to Southeast NH Land Trust.  There are both dry and wet lands on this parcel.  Test pits have been dug already, and they are convinced that the land could be developed as well, but, as a gesture of good will, may consider a sale into a Conservation Trust.  Editor’s Note:  this sale would need a willing seller and willing buyer, and most Conservation Trusts are low on available funds.

Member Mel Low expressed a strong desire for the developers to combine all three Phases and not have a sequential approach.  Some discussion occurred about the passage onto Patriots Way, as an advantage for “connectivity”, but a potential concern for the homeowners there.  Public safety issues were discussed with regard to the private road, including the ability of fire trucks to turn around.  The developers highlighted that Retirement Housing does not put pressure on the local schools and adds to the Town’s tax revenues.

A member of the audience had a question about the 20 test pits that have been dug.  The response was that some were taken in the residential development acreage and approximately 10 were taken in the Phase 3 open space/conservation land acreage.  In addition, gravel is located on the Rand Lumber property from past activities.  Finally, the process to proceed includes multiple steps that need to occur before the Planning Board receives a formal application.  Planning Board approval would be followed by Zoning Board approval for Special Exceptions that are required for relief.

Summer Sessions exemption request

The Planning Board then addressed a request for an exemption, pursuant to section 201.2(C)(4) from the Rye Land Development Regulations.  Editor’s note:  This section exempts changes in use which do not involve construction or expand a building, subject to certain conditions.  At the July 17, 2012 Planning Board meeting, Summer Sessions sought and was denied an exemption pursuant to this same section, on the grounds of increased traffic.  At the February 2, 2013 Deliberative Session, the Town considered Selectmen’s Warrant Article 15, which would have amended the Beach Ordinance to require a number of businesses and organizations to obtain express permission from the Board of Selectmen before operating a surf camp or surfboard rental business, among other requirements.  If adopted, that Warrant Article would have required Summer Sessions, which conducts these businesses, to obtain approval from the Board of Selectmen.  As the time for consideration of this Warrant Article approached, 100 persons or more filed into the Junior High School auditorium.  After an impassioned presentation by business owners Ryan and Tyler McGill, general public support was recognized for turning the Warrant Article into a study only.  The motion to so amend the warrant article passed overwhelmingly, and Warrant Article 15, as amended, passed 590-487 in the subsequent Town election.

            Chairman Epperson opened consideration of the request by noting that the Board members had probably seen a communication from Town Attorney Donovan.  He indicated that the Board should first determine whether there had been a material change from the prior year’s application.

Tyler McGill started by indicating that Summer Sessions wanted to work with the Planning Board in good faith regarding the space outside of their property.  The parking lot outside of their property is not leased by them, although their customers park there.  The parking lot is under the control of the property owner, Mr. Leary.  However, Planning Administrator Kim Reed and the former Building Inspector, Susan LaBrie had approved the use of the outside space by the business at the time that a Certificate of Occupancy was obtained.  Historically, this use had been ongoing for 50 years.  Last time, the exemption was sought for only a minor site development, consisting of the addition of posts requested by the current Building Inspector, Peter Rowell.

Attorney Erik Barstow, representing the McGills, indicated that the material change standard cited by Chairman Epperson could be challenged as it applies only to zoning variances.

Chairman Epperson stated that it should have been obvious from the last meeting that the Planning Board wanted a site plan.  The reason that they declined the exemption last time is that that portion of the Town is out of control.  Something is needed in writing so that they know what is going on with the property.

Ryan McGill responded that they were going to work with Mr. Rowell and make sure that the outside space was safe.

Member Ray Tweedie noted that there had not been a material change of fact.  They were going to work with Mr. Leary on a site plan.  There have been no changes in the business, but they are back asking for the same waiver.

Attorney Barstow argued that the exemption is from the site plan approval process.  Site plan approval would not otherwise be needed, except for the installation of the pilings, something that the Building Inspector had specifically requested.

Chairman Epperson noted that the Planning Board is not interested in putting Summer Sessions out of business.  They like them and the business.  They’re just trying to establish criteria for June, July and August.  The exemption has already been denied and there’s a Cease and Desist Order saying that nothing can be done in the parking lot.  He asked why providing a site plan was so difficult.

Ryan McGill stated that they had never said “OK” to providing a site plan.  Chairman Epperson interrupted and said that they didn’t need to say “OK,” they needed to do it.

Editor’s note:  The meeting at this point was becoming testy, with Ryan and Tyler McGill interrupting at times, and Chairman Epperson holding his gavel by the head and waving the other end, pointing it towards the audience.

Chairman Epperson then asked for a straw poll of the Planning Board on two questions, whether there had been a material change in the use, and whether the application was materially different.  Both polls unanimously held in the negative.  Chairman Epperson then noted that this was legally binding and that the Cease and Desist Order remained in effect.

Chairman Epperson then noted that they would move forward to considering a plan to deal with the issues.  Alternate Member Roman asked when, if all went well, Summer Sessions would want to put merchandise outside.

Tyler McGill said that the overall load would not increase.  The problem was that Mr. Leary would not sign off on the site plan.  They installed the pilings out of trust.  If that had not been done, there would not have been a change in use and no site plan would have been needed.

Chairman Epperson, noting that the exemption had been denied, stated that he was going to offer a viable solution.  He knows that hiring an engineer to do a site plan would be onerous and expensive.  He suggested that “you guys” come us with a drawing, to scale, showing what they wanted to do outside of the building.  It could show a walkway to the beach.  It would show the locations of the tables and the surfboard racks.  They could tell Mr. Leary that a full-scale plan was not needed.

Ryan McGill stated that they could not change the landlord’s parking lot.  Mr. Epperson noted that their customers parked there.  Attorney Barstow stated that their lease allows customers to use the parking lot.

Ryan McGill, noting that they already had a Certificate of Occupancy, asked what the effect of that was.  Attorney Barstow stated that a Superior Court judge would not agree with Mr. Epperson’s position.  Mr. Epperson said that, if they wanted to take this to court they could.

Member Winslow asked whether Mr. Leary wouldn’t agree to white stripes on the parking lot for safety.

Alternate Member Roman surmised that Mr. Leary was concerned that if he was “on board” the site plan could be enforced against him.  If not, then the Planning Board could not enforce it.

Planning Administrator Reed acknowledged that Building Inspector Rowell should not have given approval of the bollards (i.e. pilings or posts).  They should have gone in for a site plan.  Attorney Donovan is saying that Mr. Leary is being disingenuous, she said.  He’s claiming that the parking spots cannot be delineated.  He’s not being honest with the tenants.

Chairman Epperson noted that the plan should also include the pizza business.

Dennis Benoit of Seaside Grill, a neighboring business, addressed certain problems.  They share tables and chairs with Summer Sessions.  The State tells them that they would be responsible if people get sick at the tables.  The wet suits used by the surfers stink of urine.  People are changing out of them, stripping down, in the parking lot.  Every night there are people out there.

Ryan McGill asked how they lost their original Certificate of Occupancy.

Chairman Epperson noted that the use intensity had gone up.  The surfboards are an impediment to pedestrians.  Member Boivin stated that they are constrained to review this with the parking lot.  Safety is not grandfathered, he said.

Member Low asked whether the tables belonged to the pizza business.  The Planning Board is in the middle of a mess between the businesses.  The property changed from a country store to a pizza place.  It’s up to them to resolve this and come back.

Member Tweedie stated that tenant-landlord and tenant-tenant issues are not ones with which the Planning Board should get involved.  According to the e-mail that he has seen, the leased premises do not include the parking lot.  Mr. O’Leary does not want to join in the site plan application, but would allow some merchandise outside if it does not impact the Dunes or other operations or create potential safety or health issues.  They must work with the landlord.

Planning Administrator Reed said that they could come in with a site plan to scale.  They would also like a use intensity statement if they decide to come in with a site plan.

Tyler McGill asked whether this could be resolved by bringing the “stuff” located outside into the building.  Chairman Epperson reminded him that they had asserted that this would put them out of business.

Attorney Barstow stated that this is obviously an emotional issue.  If everything is brought inside then they would be in compliance with the Cease and Desist order.  Then the pilings would be removed.

Chairman Epperson stated that the site plan would need to include the pilings.  Nothing should be done with these as the use intensity had gone up.  He hoped that everything would not have to be brought inside.  Based on his letter, Mr. Leary seemed accepting of allowing some “stuff” outside.  He thought that a site plan had been agreed to in July 2012.

Attorney Barstow stated that there was a good faith disagreement as to what had transpired.  He had thought that a site plan could not be done without Mr. Leary.

Planning Administrator Reed stated that, up until February 2013, she had understood from Mr. Leary that he would be coming up with a site plan.  Then, in February, a letter from an attorney indicated that no site plan would be forthcoming.

Chairman Epperson noted that last year there had been a special meeting.  One could be conducted if they can live with what he is proposing.  Planning Administrator Reed indicated that the fees would need to be paid, 9 copies provided, and a drawing to scale included, not just a sketch.

Member Winslow asked that they consider a special meeting as surfing picks up around this time.

Planning Administrator Reed noted that, if she noted any discrepancies in the papers the special meeting would not be allowed to proceed.  There would also need to be 10 days legal notice to abutters.

Chairman Epperson said that the July 2012 meeting showed good faith.  He’s hoping that “you” and the “pizza guys” can get along.

Sanctuary Care Escrow

This payment was unanimously approved.

Selection of Committee members

Member Tweedie indicated that he would be happy to continue as Chairman of the Technical Review Committee (“TRC”).  They need to make sure that the Committee does not constitute a quorum of the Planning Board.  It was agreed that Members Boivin and Epperson would also serve on the TRC.

It was agreed that Chairman Epperson would remain on the Long Range Planning Committee and that Member Low would continue as Chairman.

It was agreed that the Rules and Regulations Committee would continue with Keriann Roman as Chairman.  Mr. Epperson would remain on that committee.

Member Winslow agreed that he could be on the CIP Committee as he is not on any other committee.

Master Plan

Discussion then turned to the Master Plan.  Planning Administrator Reed noted that chapters 2, 4, 7, 8 and 9 remain to be agreed to.  The next meeting is on April 17.  At the May meeting the Public Hearing date could be set if the Planning Board feels that the Master Plan is ready.

Member Winslow read a proposed mission statement, which includes a statement about ensuring that approvals are consistent with the Rye Master Plan.  Member Low objected to a reference in the statement to assisting applicants.  The Planning Board represents the citizens of Rye, not applicants or developers, he said.

Close out of escrow from 2007-2008 subdivision

Planning Administrator Reed indicated that $47,500, plus interest, is being held in escrow.  It is associated with map 10 lot 15.  There were questions about the reason interest was being returned by the Town and why the money was being returned after 5 years rather than 3.  After the questions were answered, all were in favor.

Letter from Diane Bitter opposing cluster concept

Diane Bitter had provided copy of a letter to the editor relating to a cluster subdivision in Alton.  The letter to the editor was read.  It maintained that Alton was already a village and did not need additional villages in the form of clusters.  That dilutes the Town.  New Englanders value their privacy.  People move to escape overcrowding and living like rats.  The letter asked whether cluster housing was really a matter of making construction efficient for developers.

Jeff Quinn interest in becoming an alternate

Chairman Epperson noted that Jeff Quinn is interested in becoming an alternate.  Member Tweedie stated that they are looking for two good people.  Planning Administrator Reed indicated that they have only Keriann Roman.