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Planning Board Minutes 02-01-2018
Regular Meeting
February 1, 2018

Members & Staff Present:                
Chris Condon (Chair), Bob Holmes, Lynne Rosansky, Bob Edwards (Ex-Officio), Steve MacDonald, Janet McEwen, and Kristin Bixby (Assistant to Land Use Boards).
Members Absent: Jeanne Cahoon (Vice Chair),
Others Present: Steve Jones
CTO:  Chair Condon called the meeting to order at 7:00 P.M. and introduced the Board and staff.
Chair Condon announced that the Land Use Assistant position was recently filled by Kristin Bixby.
I.      Minutes
  • Minutes of December 21, 2017 and January 18, 2018.
Motion:   Ms. Rosansky moved the motion/seconded by Mr. Holmes for the approval of the December 21, 2017 minutes.    
Discussion. The Board wanted to try to figure out the identity of a gentleman who had spoken about the property on the agenda (line 82), but he didn’t sign in on the December 21 meeting. For now, he will be referred to as an abutter to the property.
Vote:  By a voice vote, the December 21 minutes were approved as amended.
Motion:   Mr. Edwards moved the motion/seconded by Ms. McEwen for the approval of the January 18, 2018 minutes.
Vote:  By a voice vote, the January 18 minutes were approved with no amendments. Ms. Rosansky abstained due to absence at Jan 18, 2018.

II.     Jones/InEx Home gravel pit opening
Chair Condon invited the applicant, Mr. Steve Jones, to make his presentation. The applicant gave an overview on what he had gathered from talking to the community and the past property owners of the gravel pit, located off of Pleasant St (Plan Map 245, Lot 17). He mentioned knowing that the previous owners were going to do a development in there at one point, but that it had never come to fruition. Mr. Jones explained that he wants to eventually develop two sites on the property, one of which will be a house, and may add a shared driveway. Mr. Jones clarified that when he bought the property, he was unaware that pit excavation permit process had lapsed, and is now seeking aid in going forward to reinstate the pit’s status as an active excavation site. “Bottom line is, it’s kinda messed up. In order to do anything with it, it needs to be flattened out so it’s useable… that’s my intent. I don’t want to go in there and create a large mining operation” adds Mr. Jones. His son wants to build a house up there, so the land needs to be flattened out before that project can take place.
Chair Condon mentioned that Carol Ogilvie, the Town’s Consultant Planner, wrote in an e-mail that the site has been inactive long enough to be officially considered abandoned by the operator. If Mr. Jones can show any documentation to support a claim of no intention to abandon, that is one factor the Board could consider. However, given the length of time the site has been inactive, some level of planning board action is necessary. Mr. Jones will need to put an application together for the Board to review.
Steve Jones talked to others who have similar land in Bennington have used their own paperwork to create their own reclamation plans. He has done another development in Bennington behind Harris’ store, and Mr. Clark had put a housing development on the property. Mr. Jones thought they had an easier time with that development since there was not a lot of excavation that was being done. In order to do anything with his property, it must first be flattened out. Chair Condon asked if there were any original plans that have come from the old developers. Mr. Jones raised up a stack of plans. He said that it seems clear that In-Ex Homes, the previous developers, had put a lot of time and money into their project. However, he wasn’t sure how extensive his plans would have to be, due to the different nature of his development plan.
Chair Condon stated that at this time, he believes Mr. Jones would just need to submit an excavation permit. Mr. Edwards said that he is always in support of having gravel pits in Town, but the Board has to follow the rules to the extent that is necessary to individual cases. If Mr. Jones would fill out the application, and have Carol Ogilvie and the office staff look through it as well as the old site files, the Board could get back to Mr. Jones about what else he needed to provide.  It is not going to be a level of excavation comparable to projects being done on Rte. 93, but the Board has to stay consistent with all applicants who have an Intent to Excavate.
Ms. McEwen asked to clarify if the intent of Mr. Jones re-establishing the property as a gravel pit is to make it a buildable lot. Mr. Jones agreed that this is his intent. What Mr. Jones wanted more clarity on is whether that process really calls for an excavation permit. He believed that if he ends up hauling more than 1,000 yards a year, he would need to have an excavation permit. Although he is not sure if that will happen, he may want to get a permit just in case. When asked if there was a reclamation plan, Jones said it may exist from the old developers, but he is not entirely sure if it is useable or applicable to his new plan. He said he plans on talking with Mary Pinkham-Langer about the process of making his own reclamation plan, but wanted to talk to the Board and see what we had on file first. Mr. Jones also mentions that he has begun to contact the abutters of the property. Their main concern regarded the chance that he’d put several housing units in there, which he said he is not planning on doing. He was still not sure if he will end up wanting one lot or subdividing the lot into two. However, considering the size of the property, he would like to keep that option open.
Mr. MacDonald noted that the Planning Board had done a site walk on the property a few years ago, when the old owners were trying to develop the land. At that time, it was a still workable gravel pit. But obviously, it has not been touched since, and there has now been some overgrowth. Mr. Edwards mentioned that In-Ex Homes had a lot more plans with their infill, and were planning to build a new right-of-way inside the property, which needed abutter approval. This was a much more extensive process, so a lot of the plans generated for their project don’t seem applicable to Mr. Jones’ plans.
Mr. Edwards suggested that Mr. Jones should be working with Carol Ogilvie, and then maybe get some counselling from the DRA and Mary Pinkham-Langer.
Kristin, the new assistant to Land Use Boards, will get Steve Jones in touch with Carol Ogilvie, Consultant Planner.

III.    DBEA discussion overview from January 18, 2018 meeting
Representatives from DBEA did not yet respond with a digital copy of the presentation from the Board’s last meeting. It was determined that it would be appropriate to show more people the presentation to help with the 2020 Vision. The Board would like to bring the representatives back to present to business representatives throughout the Town and the Select Board.

IV.     Shook, et. Al Lot Line Adjustment & Annexation Discussion
Planning Board members gathered around the property plats for the Shook lot line adjustment and annexation case. Since there were absent members at the last meeting, the Board found it necessary to spend time at this meeting to brief those members on what was discussed regarding the case. Essentially, two lots were merged in the initial case, per request of the land owners, represented by their agent, Dennis McKenney. Priscilla Shook, one of the owners of the now merged lot, had since come back and have asked if the lot could be subdivided again, as she had later realized that what was suggested to the Planning Board through a letter from the land surveyor was not what she had really wanted to do.
Ms. McEwen asked if this case was something the Zoning Board of Adjustment should be looking at as well. She didn’t think it necessarily has to go through the subdivision process. From her understanding, the merge had nothing to do with the initial subdivision. If the Board can find a simple way to do it, the surveyor may just need to show the different deeds. According to Carol Ogilvie, the consultant planner who was present at the initial meeting, the Board cannot simply revoke the process that had already been done.
Mr. Edwards said that from his understanding, the Board did what was asked for. If they have since changed their mind, the cleanest way to change the lot is done by going through the subdivision process.
Ms. McEwen added that the Shook’s lawyer claimed that the merge that was made cannot be done legally, as Pricilla Shook never owned the larger part of the now merged parcel. She did have interest in it, but she was not on the initial deed of what was once the separated parcel. Mr. Edwards suggested that the Planning Board at the time must have taken comfort in the fact that the other owners were obviously willing to give her those property rights, since all owners from both properties signed the plat of the merged properties. Mr. MacDonald, who was also an active Planning Board member at the time of this case, pointed out that there was no mention of an issue with the proposed merge. Everything was signed, and the Board simply carried out what was proposed to them. There was no issue brought up on the table about the ownership of the lots.
Chair Condon read the letter, dated February 18, 2013, to Planning Board from the surveyor, which gave a description of the annexation and merger plan of what was then two separate properties, owned by different members within the Shook family. The Board further compared the old and new plat to see what had happened. It was determined that at this point, the surveyor will have to submit a new plat that describes what all parties want done to their lot so the appropriate plat will be filed with the Town and with the Registry of Deeds.
Ms. McEwen and Mr. Edwards both suggested that due to the claims that have been made, it may be in the Board’s best interest to have it reviewed further by the Town Counsel, just so everyone has a clear picture of what happened. Ms. Rosansky added that depending on what the legal counsel finds, the Board may want to talk about egress. Mr. Edwards added that he would talk to the Town attorney personally.
Chair Condon stated that the actual question being debated here isn’t whether or not the lot could or should be subdivided, but what Town’s responsibility is when a land surveyor gives us incorrect information. The Planning Board depends on that information in order to make an appropriate decision for whether an application is approved.
The minutes from the initial hearing in February of 2013 were read by the Planning Board Chair.
Motion:   Mr. MacDonald made a motion to refer this case to the Town Counsel. Ms. Rosansky seconded the motion. Chair Condon amended the motion to have the Selectman and Ex-Officio, Mr. Edwards, to talk to the Town Counsel and take the files into his possession for review. Mr. Holmes added an amendment to have the Town Counsel offer steps the Planning Board will need to take to prevent this sort of issue from occurring in the future.
Discussion: Mr. Holmes asked, “do we need to go beyond scopes of the plat for these cases, or should we be allowed to accept the plat as given?” He felt as though that in the past, the Board has considered the plat to be the official documentation of any application that comes in front of them. Mr. Edwards believed the Planning Board should have enough knowledge to make these decisions, and if not, they should be going to the Counsel for clarity. Therefore, this motion seemed like the right decision to start clearing up this process.
Ms. McEwen added that this application was not a minor site plan review, but a lot line adjustment. Therefore, the Board should look at the lot line adjustment checklist, and add the question of lot ownership into the checklist for the future. All of the property deeds should be reviewed as part of the submittal process of any applicant. She suggested possible legal verification of what is drawn up for the checklists.
Ms. McEwen moved to accept the amendment. Mr. MacDonald seconded.
By voice vote, the motion to bring the case to Town Counsel, via Mr. Edwards, was approved with the proposed amendments.
V.      Additional Business:
Ms. Rosansky will not be able to attend next meeting on February 15th. There was a brief discussion on what constitutes a quorum [note: upon further review, a quorum for the Planning Board is simply determined by whether there is a majority of members present]. She noted that currently, with so little requests coming in, there may not be a need for such a large Planning Board. There may be a need for a bigger Planning Board if and when there is an increase in subdivision requests.
Ms. McEwen asked about whether there was ever a public hearing in regards to home-based businesses and Accessory Dwelling Units (ADU’s). Board members clarified that there was a hearing last year, but no one showed up.
Mr. Edwards recommend having Mary Pinkham-Langer, who works for the Department of Revenue, come down and go over regulations for gravel pits and the current use law. Mr. Holmes agreed with this recommendation, but added that if the Board were to invite Mary Pinkham-Langer, it would be beneficial to invite other Boards to come so she is speaking to a larger audience. The ZBA stood out as a Board that should be included. Chair Condon pointed out that, realistically, the Board’s best chance for arranging this visit would not be until one of the two meetings in May. Ms. Rosansky added that May 3rd is her preferred meeting date, as she will not be available on the other May date.
Board members expressed to the new Assistant to Land Use Boards that they would like to have more time before the meeting to look over everything on the agenda. They agreed that the goal should be a week in advance.
Ms. McEwen asked about the progress of the Town survey for the Master Plan. She suggested that the Board should be continuing the Master Plan process, regardless of the survey.

Motion:   Ms. McEwen made a motion to adjourn/seconded by Ms. Rosansky.
Discussion.  None.
Vote:  By a voice vote, all agreed.

Meeting adjourned:  8:20 PM

Respectfully Submitted By,
Kristin Bixby

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