Town of Auburn

Planning Board

PUBLIC HEARING

1ST ZONING ORDINANCE MEETING

January 4, 2010

Present:          Stoney Worster, Chairman, Jim Tillery, Vice Chairman, Alan Côté, Jeffrey Benson, Ron Poltak (7:10pm) and Carol Peterson, Members.  Minutes recorded by Denise Royce.

Absent:           Keith Babb and Karen Woods, Alternates.  Russell Sullivan, Selectmen's Representative.

Mr. Worster called the meeting to order at 7:00 p.m.

ANNOUNCEMENTS/CORRESPONDENCE

Mr. Worster explained, that this was the first Public Hearing on Zoning Ordinance changes and that the second Public Hearing is scheduled for Monday, January 18^th at 7:00pm and would be held at Town Hall.

PUBLIC HEARING, 7:00 P.M.

The purpose of the public hearing is to present proposed amendments to the Town of Auburn Zoning Ordinance, and to solicit comments and discussion relative to the proposed amendments. 

Proposed amendments include:

1) Amend Section 4.04(4), “District Regulations – General”: This proposal is to change the current reference to “aprons surrounding above ground pools” to “aprons surrounding inground pools”, in order to correct an error in this paragraph.

Mr. Worster asked if there were any discussions?  None were noted.

2) Amend Section 13.08, “Smoke and Fire Detectors”: This proposal would update the reference to current building codes and state statutes and correct the name of the Auburn Fire Department.

Mrs. Rouleau-Côté explained that basically, the word “volunteer” was removed from the name of the Auburn Fire Department.

3) Amend Section 4.07(4) and 4.07(5): This proposal is to change “commercial agriculture” and “produce stand,” uses currently permitted only be special exception in the Commercial - Two (C-2) District, to uses permitted by right in the C-2 District.

Mrs. Rouleau-Côté explained that this was a request that she made because after the past year and after the last rewrite she had someone come in that lived on Old Candia Road which is a C-2 District, who wanted to have a small produce stand.  This person was located next door to Dulac Foundations and Gosselin Steel but a produce stand was not allowed in the C-2 District.  Mrs. Rouleau-Côté stated that the only other comment she had was that also in the rewrite last year, single family homes was removed as a permitted use in the C-2 District.  This would affect Rockingham Road and parts of the Village District and was unsure this was what the Planning Board wanted.  Mr. Worster stated that it was a request that was made by Southern New Hampshire Planning Commission.  If you were planning to have a commercial area in town it should be commercial.  Mr. Côté mentioned that the problem was that the Town of Auburn already has so much overlap already in the Commercial District, for example: Candia Road has more residential than commercial on it.  Mr. Worster commented that they had the grandfathered wording in place.  Mrs. Rouleau-Côté just wanted the Board to be aware that the single-family homes is no longer a Permitted Use in the C-2 District and right now would be considered a grandfathered non-conforming use.  So, if they wanted to construct an addition, they would have to go before the Zoning Board.  Mrs. Rouleau-Côté further stated that she had spoken with Attorney Eggert and Attorney St. Hilaire and has come up with some language to add to a subsequent Warrant Article. 

Mr. Eaton asked, at the time of voting last year, when people voted on that, that you would no longer have a single family home in the C-2 District, was it worded like that?  Mr. Worster said no.  Mr. Eaton believed that it should have been worded in a way to inform homeowners in the C-2 District that, if you lived in a C-2 Zone it would now become totally commercial.  Mr. Worster explained that the changes were extensive as they were revising the entire Zoning Ordinance in March 2009.  Public Hearings were held and posted on the website and a lot of people did not read.  Mr. Côté commented that the revision of the entire Zoning Ordinance was made by one vote.  Mr. Worster informed everyone that if it had been done individually, it would have burdened the voters.  Mr. Côté stated that Mr. Eaton made a good point but that there was a dramatic change in the Zoning Ordinance and most people don’t read it and see that if it’s recommended or not recommended by the Planning Board and vote for it.

Mrs. Rouleau-Côté asked if the Board was in agreement to post it as written?  Mr. Côté asked if they were voting tonight?  Mr. Worster said that they were voting to post.  Mr. Côté wanted to go back and vote on each one as they go through.

Mr. Côté moved to approve Amendment 3 as written.  Ms. Peterson asked if they would add the new language or would it be another amendment?  Mrs. Rouleau-Côté pointed out that she had a separate Amendment that talked about the addition or expansion of a non-conforming lot.  The Board decided to hold off till later.

4) Amend Section 14.09 “Variances”: This proposal is to amend Section 14.09(2)(a) regarding variance requirements, in order to comply with N.H. R.S.A. 674:33, effective January 1, 2010, which modified the appropriate standard to be applied to the unnecessary hardship test for variance applications, by deleting current Section 14.09(2)(a) and replacing it with the standard set forth in N.H. R.S.A. 674:33, I(b)(5).

Mr. Worster read the definition of “unnecessary hardship” to the Board members.  Mr. Worster asked if there were any discussions?  None were noted.  Mr. Côté believed it to be a housekeeping measure.

5) Amend Article 5, “Wetlands and Watershed Protection Regulations”: This proposal is to adopt a comprehensive revision to Article 5, which will streamline the language of Article 5, clarify the procedure for the conditional use permit process administered by the Planning Board, and eliminate the complete exemption for pre-existing structures, uses and lots. 

Mrs. Rouleau-Côté explained that after last year’s total rewrite of the Zoning Ordinance the current revision of Article 5 was to clarify the language as there was some inconsistencies in the language.  Mrs. Rouleau-Côté went through each section for the Board.  Mrs. Rouleau-Côté began by saying that Sections 5.01, 5.02 and 5.03 all remain the same.  Section 5.04(1)(b) has a problem with the language regarding a Level 2 wetland.  It states in (I) that all other wetlands not meeting the criteria of Section 5.04(1)(a)(I) above; and (ii) a wetland that does not have a function, which she has yet to see a wetland that does not have a function.  Mrs. Rouleau-Côté  stated that the definitions stay the say for a Level 1, Level 2 and a Level 3 wetland. Mrs. Rouleau-Côté went on to 5.05(9) Accessory Structures of two hundred (200) square feet or less, would like to see the language taken out that says, “In which there is no storage of petroleum products, hazardous chemicals or materials.”  Discussion ensued between Mrs. Rouleau-Côté and the Planning Board members with regard to the removal of this language.  There is no way of monitoring whether or not people are storing hazardous chemicals or petroleum products.  It was decided to remove the language from Section 5.05(9).  Mr. Poltak noted that if the Code Enforcement Officer does not see an issue then he believed it should be stricken.

Discussion ensued with regard to tanks being stored on construction sites in residential developments.  The Board also discussed EPA and waste oil burners within the Town of Auburn.  Mr. Eaton did not see a concern and believed that people were more careful than anyone would think.

Mrs. Rouleau-Côté went on to Section 5.06(1) where before there were no exceptions and now there are minor accessory structures permitted under the terms of Section 5.05(a).  It was decided to leave it as it is.  Section 5.07, Uses Permitted by Conditional Use Permits, #7 was added which reads “Construction of a single family dwelling on a lot of record as of March __, 2009” which would allow construction of a single family home within a Level 2 or Level 3 protection areas that was not there previously.  Mr. Worster asked for the Board’s thoughts?  Ms. Peterson asked, what was it added?  Mr. Worster did not know.  Attorney Eggert stated that it was there because they were asked to include it.  Attorney Eggert commented that in the old ordinance it fully grandfathered construction after a specific date and this one changed it to allowed the use by Conditional Use Permit.  If it was new construction you would not subject it to a Conditional Use Permit.  Ultimately, it would be up to the discretion of the Board of the approach it takes.  Mrs. Marzloff asked if this would define a lot of record that was approved by the Board as prior to subdivision fall within this protection zone and now becomes a Conditional Use Permit situation and brought up the Lamphere property.  Attorney Eggert said, yes it could as there are two (2) exemptions, being public health and safety.  Currently this could be applied to any new construction on a lot of record as of that date.  Mr. Worster asked for the Board’s thoughts?  Mr. Eaton asked if lots prior to this would be subject to a Conditional Use Permit?  Attorney Eggert explained that, lots already approved for construction that there could be an argument and further explained Section 5.07(7).  Attorney Eggert further mentioned Section 5.07(8), which would represent the same problem, as it deals with the issue of expansion of a single-family dwelling.  Mr. Worster pointed out that the date should be March 10, 2009.  Mr. Poltak understood Attorney Eggert’s thoughts being to take out Section 5.07(7) and Section 5.07(8).  Attorney Eggert  would have to render an opinion that it did not apply to a subdivision lot of record that had been created as of March 2009 where the subdivision had not been built out simply because you cannot keep rolling over the subdivision and subjecting it to new and interesting and creative offers and setbacks and the like.  Mrs. Marzloff asked that if it was approved, it would still have to make a determination of whether or not active and substantial development.  Mr. Worster answered that it was all lots previously approved.  Mrs. Marzloff believed that all the other tests would be whether or not there has been active and substantial development.  Attorney Eggert pointed out that, what happens to a plan that does not have active and substantial development.  If you go to the registry, every person that checks a title would not tell you differently until a Planning Board takes that legal step to notice and ultimately revoke. 

Mrs. Rouleau-Côté asked about Wethersfield and where you have waivers that were granted reducing the wetland setback from 125 feet to 75 feet throughout the subdivision would he be bound by the subdivision approval?  Attorney Eggert answered by saying that once a subdivision is approved and particularly in Wethersfield where he probably meets the active and substantial development it’s really not going to be an issue because they are overlooking.  What they are saying is that any law where you cannot demonstrate to him that you have a pending active approval.  You could say the construction of a single family dwelling on a lot of record as of March 2009 as to which there is not an ongoing vested right to build.  This may even cloud it more because the whole idea is you want to be able to subject the grandfathered lot to meet setbacks and setback requirements.  Mrs. Rouleau-Côté agreed.  Further discussion ensued with regard to vested setback requirements. 

Mr. Worster asked Mrs. Rouleau-Côté what else she would like to do? Mrs. Rouleau-Côté asked if they were going to leave #7 alone?  Mr. Worster said yes.  Mr. Poltak said he did not think he wanted to as he did not see why #7 would be necessary.  Mr. Poltak did not see a problem at this time that would be an issue.  Attorney Eggert pointed out that if you eliminate #7 the impact would not fall on any approved subdivision, the impact would fall on, what is the remedy being offered and we offer the desire to build within their constitutional rights and our desire to see that building occurs within the setbacks.  The Board believed that the Zoning Board would deal with this issue.  Mrs. Rouleau-Côté noted that it would all depend on the level of the wetland and that if it was a Level One wetland, if it’s still a Level One wetland, they would have to be 125 feet or they would have to go to the Zoning Board.  Mr. Worster stated that basically the whole idea was to try to stop clogging the ZBA with requests to build a garage. Mrs. Rouleau-Côté noted that the Board was allowing the construction of a whole house within 75 feet of a Level Two and then further on show an accessory structure of 500 square feet or less, they would have to go through the same hoops as a whole house would have to go through.  Mr. Eaton asked if it would be left in?  Mr. Worster said yes.  Mr. Côté and Mr. Poltak believed that it should be removed.  Attorney Eggert stated that it was at the discretion of the Planning Board on whether or not they wanted to remove the language for #7.

Mrs. Rouleau-Côté went on to Section 5.10 Minor Conditional Use Permit (5) Accessory Structures where it says “existing single or two-family “residence”” believed that it should say “residential lot” instead of “residence” and again references “in which there is no storage of petroleum products, hazardous chemicals or materials within any portion of the Wetlands and Watershed Protection Area”.  Mr. Worster asked if it should be removed?  The Board agreed to remove the language as well as change “residence” to “residential lot”.  Attorney Eggert explained why it said “residence” was because they were talking about a lot that was already built upon as opposed to a lot that has no building on it.  Mr. Côté agreed that the word “residence” would remain and the language regarding hazardous materials would be removed.  Discussion further ensued with regard to whether or not to remove #7.

Mr. Worster noted that anywhere in Article 5 where the date is blank to make it March 10, 2009.  Attorney Eggert brought up Section 5.09(2)(b) Administration of Conditional Use Permits/Summary of Process where it references a Section it should be Section 5.09(5) Review Factors and Section 5.09(6) Required Findings.  Mr. Worster asked for motion to include changes.

At this time, discussion ensued between Mr. Martel and the Planning Board regarding the differentiation of wetland functions.

6) Amend Section 14.08 “Motion for Rehearing”: This proposal is to correct a reference to the time period within which meeting minutes must be made available, in order to comply with an amendment to N.H. R.S.A. 676:3, II, which requires that such minutes be available five (5) business days after the hearing at which the vote was taken.

The Board believed that it was pretty straightforward and did not see any changes.

7) Amend Article 12 “Growth Management”: This proposal is to amend Article 12 to comply with amendments to N.H. R.S.A. 674:22, by specifically citing the study which demonstrates the need for a growth management ordinance and by adding a requirement that the Planning Board review the development plan formulated by the Capital Improvements Committee; and to further amend Article 12 by adding workforce housing developments to the category of housing development which may be excluded from the limitations of Article 12, in order to comply with N.H. R.S.A. 674:59.  

Mr. Poltak read the paragraph regarding Growth Management aloud for the Board from a letter written by Attorney Eggert.  Mr. Poltak asked what lack of capacity meant?  Attorney Eggert explained that as a town, you define your capacity to some extent.  Your Capital Improvements Program will define your capacity.  If your Capital Improvements Program were well in place and it was apparent that the rate of growth would cap that out then this would be good.  Historically, the Town of Auburn has never encountered the need to cap the growth capacity.  Attorney Eggert did not the Court would find that the Capital Improvements Plan was too conservative.

Mr. Worster asked if there was any further discussion with regard to Amendment #7?  Miss Peterson stated that basically it was just adding a few sentences and removing some unnecessary words.  Mr. Côté explained that the Planning Board needed to comply with the State Law.

8) Amend Appendix A “Zoning Matrix of Uses and Districts”: This proposal is to amend Appendix A, the Zoning Matrix of Uses and Districts, to comply with previous amendments to the Zoning Ordinance which are not reflected in the Matrix, as well as any such changes adopted in 2010.

Attorney Eggert explained that Appendix A was just a tool to assist the citizens of Auburn.  This is somewhat conservative but not a bad idea.  Attorney Eggert noted that it was a task to go through the Matrix and suggested that Mrs. Rouleau-Côté and Ms. Royce go through the Matrix and correct any discrepancies.

Discussion ensued with regard to the Matrix and who would be reviewing it.  At this time, Ms. Royce made a copy of the Matrix.

At this time, Mrs. Rouleau-Côté read into the minutes the following proposed Amendments.

9) Amend Section 4.07:  This proposal is to amend Section 4.07 by adding a new sub-section (8) “Addition or Expansion of Single Family Detached Dwelling”: which would read:  “Notwithstanding the provisions of Section 3.05, an addition or expansion to a single family detached dwelling which was lawfully in existence as of March 10, 2009, shall be permitted within the C-2 District, subject to all area and dimensional requirements of Section 4.07(6).

Mrs. Rouleau-Côté explained that basically it would still need to meet all the side setbacks it would allow all existing lots to be grandfathered to allow an addition without going to the Zoning Board.  Mr. Poltak believed that the C-2 District would never be a C-2 District in true essence. 

10) Amend Section 4.08(2) “V” Village Center District (Boundaries): This proposal is to correct the Boundary description of The Village Center District to read: The land between Eaton Road and Raymond Road; the land on the Northwest corner of the intersection of Manchester Road and Raymond Road, and the land along Route 121 and Bunker Hill Road, (current underlying zone Commercial – Two (C-2).  There is no change to the zoning map.

Mrs. Rouleau-Côté explained that last year they created The Village District and the language did not coincide with the description so in order to better describe the boundaries, it shows the C-2 District overlay.  Mr. Worster pointed out that the language on page 41 of the Zoning Ordinance was changed to read what was stated above.  Attorney Eggert further informed the Board that this correction to the description of The Village Center District would not affect the Zoning Map.

11) Amend Section 4.06(2) and 4.06(3): This proposal is to change “multi-unit dwelling” use currently permitted by right in the Residential - One (R-1) District, to uses permitted by special exception in the R-1 District.

Mrs. Rouleau-Côté explained that last year there was a change with respect to multi-family as they took out the language that dealt with the acreage requirement for placement of multi-family.  Right now there is no provision or acreage requirement for conversion to multi-family. Mrs. Rouleau-Côté stated that she had some concern with regard to some areas in town that multi-family is permitted without having to go to the Zoning Board for any kind of special exception and the character of the area could be changed without any kind of criteria for multi-family.  Currently multi-family is permitted in the R-1 Zone and requires a special exception in the R-2 and C-2 Zones.  Mr. Worster asked what page?  Mr. Côté directed everyone to Page 36, Section 4.06. Mrs. Rouleau-Côté stated that one of her concerns is that some of the R-1 areas, the lots are already under the two acre current zoning.  Mr. Worster added, such as Margate Drive.  Mr. Côté agreed that it would be wise for the Board to make it a use permitted by special exception in the R-1 District versus just having it permitted so they would at least have to go to the Zoning Board.

Mr. Poltak asked Mrs. Rouleau-Côté what the minimum lot size for multi-family unit? Mrs. Rouleau-Côté replied, that previously, if you were in an R-1 or R-2 District it would require two acres per dwelling unit, you would need four acres to have a duplex.  Now, there is no requirement whatsoever.  Mr. Worster stated that the reason for that was when the Board was discussing workforce housing, the minimum multi-family unit that the state would consider was a five unit multi-family.  So basically, you would have needed 10-acre lot to build a five-unit multi-family or 15 acres if you were in a Rural District.  Mr. Worster did not believe it made a lot of sense and sees no need to burden the Board with a 10-acre apartment building.  Mr. Côté commented that changing it to a special exception would not change the acreage.  Mr. Poltak agreed with removing acreage as it made no sense to have acres of land to have multi-unit dwellings.  Mr. Poltak further stated, to now have a multi-unit dwelling on a postage stamp lot is also inappropriate.  Discussion ensued between Board members regarding multi-unit dwellings.

Mrs. Rouleau-Côté  believed that it could be handled from the planning stage on to be able to address all of those issues.  The issue is having an existing property now that would be able to come in and create a duplex situation in a neighborhood that was not designed that way. Mr. Côté added that it would have the potential to change the character dramatically of an area. Mr. Côté gave an example of Wethersfield, and did not know what Wethersfield had for protective covenants and if it did not have it in their covenants, just think of Wethersfield becoming all duplexes.  It would definitely change the character of the area.  Mr. Eaton agreed with Mrs. Rouleau-Côté that there are neighborhoods that people did not buy into the idea of having duplexes around.  Mr. Eaton agreed that the town needed workforce housing.  Mr. Côté agreed and stated that’s why they’re not outlawing it but that it would require a special exception, which would give the neighbors more of a voice.  Mrs. Marzloff thought that by doing so would create another hoop and would not be solving the problem with density when you go from a single family to a duplex.  Somehow you must increase density on the lot.  Miss Peterson asked, wouldn’t it depend on the size of the lot?  Mr. Worster commented that, at this point since there was not a lot of people trying to build multi-family structures anywhere in Auburn, he would just assume go with requesting a special exception and require site plan review to build a multi-family.  The Board stated that it already requires site plan review.  Mrs. Rouleau-Côté further stated that during the site plan review, the Board needs to take into consideration the driveways, the number of cars, boats, trailers and sheds.  Mr. Worster did not believe this would be a bad thing.  Mr. Benson commented that the Board sits here time and again and you hear that it will change the rural character of Auburn.  Mr. Worster stated that you can not keep the whole Town of Auburn rural.  Somewhere people have to live near each other, just like Margate, 60 feet away.  Cannot keep the whole town rural  Mr. Côté stated that they did not want a Quail Hill like in Derry where there is a mail box every 50 feet, duplexes 30 feet between buildings where cars can’t park on the street because we need to plow the road.  Mrs. Marzloff agreed.  Mr. Côté still believed that multi-unit dwelling should require a special exception.  Mr. Worster stated that a motion was made.  Mr. Côté reiterated his motion to the Board.

Mr. Eaton asked what makes it a multi-family?  Mrs. Rouleau-Côté explained that it did not have to have it’s own heating system but it has to have a cooking area and it’s own bathroom facility.  Mr. Côté added that an in-law apartment you have to have an interior door going from one side to the other and a duplex would have a solid wall with no door to connect.

Mr. Worster asked if they formally had to set the next Public Hearing date and post warrant articles?  Attorney Eggert said yes, you would want to move to formally set your next Public Hearing date and to post the warrant articles as amended.

ADJOURN

NOTICE:

The next Planning Board meeting will take place on Wednesday, January 13, 2010 and will be held at Town Hall, 47 Chester Road.