PORTSMOUTH PLANNING BOARD Regular Meeting August 14, 2013

Members Present: Guy Bissonnette, Kathleen Wilson, Theodore Czech, Richard Wimpress, Luke Harding and Michael James Members Absent: Edward Lopes Others Present: Leon Lesinski, Administrative Officer, Planning Board and Atty. Kevin Gavin, Town Solicitor The Meeting was called to order by Mr. Bissonnette at 7:00 p.m.

1. Agenda Continuances/Modifications: MOTION: Mr. Wimpress made a motion, seconded by Mr. Harding, that no subsequent agenda items would be heard after 10 p.m. and that in the event that agenda is not completed by 10 p.m., the Planning Board would reconvene the meeting at 7 p.m., August 21, 2013. All in favor. So voted.

Mr. Lesinski stated that there were no agenda continuances or modifications.

2. Minutes of Planning Board Meeting of June 12, 2013 MOTION: Ms. Wilson made a motion, seconded by Mr. Czech to approve the minutes of the June 12, 2013 meeting. All in favor. So voted.

3. Zoning Ordinance Update: Recommendation to the Town Council to adopt amendments to Article III, Section F, Flood Hazard Areas Ms. Wilson made a motion to hear this agenda item at the end of the meeting. The motion was not seconded and withdrawn.’

Gary Crosby, Town Planner presented a draft with language that updates the flood hazard area maps under Article III, Section F. If the town does not adopt the draft, it risks loosing National Flood Plane Insurance Certification under which citizens may obtain flood plane insurance. FEMA’s deadline for town approval is September 4, 2013.

MOTION: Mr. Wimpress made a motion, seconded by Mr. Harding, to accept the draft of the amendments to Article III, Section F, Flood Hazard Areas and to further make a favorable recommendation for approval to the Town Council. All in favor. So voted.

Mr. Crosby drafted a letter for Mr. Lesinski to sign and forward to the Town Council.

4. Bay View Realty Trust, AP 50A, Lots 1, 2 & 4 – Concept review to create new lot and advisory recommendation to the Zoning Board Atty. Laurent Russo, Moore, Virgadamo & Lynch, Ltd. appeared representing Bay View Apartments, LLC, owner Bay View Apartments, West Main Road and BV Estates Inc., a related entity to Bay View Apartments, which owns a lot (approx. 115,000 square ft.) located on the southeast corner of the Bay View Apartments.

Atty. Brian G. Bardorf, Bardorf & Bardorf, Newport, RI appeared representing Overlook Point Condominium Association.

1 Atty. Russo explained that after submitting the petition, he learned that through a re-financing, Bay View Realty Trust conveyed the Bay View Apartments property to a related entity called Bay View Apartments, LLC. He requested that the Planning Board allow the substitution of the names in the petition.

MOTION: Mr. Harding made a motion, seconded by Mr. Wimpress, to approve a change in the petition for Bay View Realty Trust, AP 50A, Lots 1, 2 & 4, wherein “Bayview Realty Trust” will be referred to as “Bay View Apartments, LLC.” All in favor. So voted.

Referring to two decisions from the Portsmouth Board of Review, 2004 and 2008 (Exhibits A and B), Atty. Russo explained the original land swap agreement between the three entities, Overlook Point Condominium Association, BV Estates, Inc. and Bay View Realty Trust, (now Bay View Apartments, LLC.) The decisions granted certain variances necessary to complete the agreement. The two parcels conveyed by Overlook Point constitute common elements owned by the unit owners in an undivided interest. Atty. Russo explained that according the Rhode Island Condominium Statute, Section 34- 36.1-3.12, Overlook Point must obtain consent of at least eighty percent (80%) of the unit owners in the association in order for the association to convey common elements. Further, Overlook Point must also obtain consent of one hundred percent (100%) of all mortgagees for any unit owners having a mortgage on a unit in order to release the security interest on the common element parcels. Overlook Point has obtained over 90% of the unit owners’ consent for the land swap. Obtaining the required consent of the mortgagees involved has been more difficult.

Referring to a new plan and petition (Exhibit C), Atty. Russo requested concept review for a new lot, which joins the two parcels that would have been conveyed to BV Estates, Inc. and Bay View Apartments, LLC by Overlook Point. He further requested a favorable recommendation for necessary variances to create the lot. He noted that this petition, if approved, will resolve over time the difficulties in obtaining mortgagee consent. A condition of approval will be that the new lot will remain separate and not annexed to present parcels owned by BV Estates and Bay View Apartments until all present mortgages of the Overlook Point unit owners have been discharged. He noted that approval of the petition would freeze the number of mortgages that have interest in the common element (new lot) and that future mortgages obtained by unit owners would only encumber common elements as they exist after the conveyance (land swap). Atty. Russo explained that approval for the necessary variances by the Zoning Board of Review would be granted on the condition that the new lot would not be used for development purposes until it is merged with the present parcels owned by BV Estates and Bay View Apartments.

Atty. Russo reviewed the three dimensional variances outlined in the petition (Exhibit C). First, AP 50 -A, Lot 2, Bay View Apartments, LLC requires approval or continued recognition of legal non- conforming use which will increase with the conveyance of 51, 652 square feet to Overlook Point. Secondly, AP 50-1, Lot 4, Overlook Point Condominium Association requires relief for 27,626 square feet from the Zoning density requirement, relief for frontage on a public road (West Main Road) and relief for lot area. Thirdly, the new lot requires relief for frontage on a public road of 8 ft. (Overlook Point is conveying the frontage on West Main Road for Lot 4 to the new lot.)

Steve Caminis, Bay View Townhouses, abutter, inquired as to whether or not the new lot could be sold. Mr. Bissonnette stated that the lot could be sold but could not be developed because of the approval restriction which runs with the land. Mr. Caminis asked the Planning Board to restrict the sale of the new lot as a condition of approval. Mr. Bissonnette explained that the town does not have 2 the authority to restrict the sale of private land. Atty. Russo explained that under the proposed request and deed restrictions, until the current mortgages are discharged, the new lot has no use and the likelihood of its sale is limited. Mr. Bissonnette also explained that the petition, given the deed restrictions, does not imply future development and that in all cases, any future development of the new lot requires re-application to the Planning Board. Atty. Russo explained that Overlook Point property retains access to West Main Road by easement, at the egress used by the townhouses.

MOTION: Mr. Harding made a motion, seconded by Ms. Wilson, to make a favorable recommendation for the petition and for all requested variances delineated in the explanation of the petition for Bay View Realty Trust, AP 50A, Lots 1, 2 & 4, subject to the restriction that the new lot not be used for development purposes unless or until it is annexed to the other parcels owned by BV Estates Inc. and Bay View Apartments, LLC. All in favor. So voted.

5. Harkins Development Company (Portsmouth Heights), AP 63, Lot 15, Preliminary Plan Hearing for Major Subdivision John Braga, Jr., John Braga & Associates, Inc, Civil Engineers, Land Surveyors appeared for Harkins Development Company with a petition for a major subdivision of eight lots on the west side of East Main Road. He noted that the property was part of another proposal (2006) for a 54 lot major development, the western portion of which belong to Wicks Nursery. The development rights for the western portion have been sold and no longer part of the proposed development. The 8-lot proposed subdivision is zoned R30. The lots meet the zoning requirements for minimum area, lot frontage, etc. The site is 7.7 acres in the southern portion of Portsmouth abutted by Moitoza Lane to the north and Goulart Lane to the south. The plan utilizes low impact development techniques to manage storm water including reduced impervious pavement width and individual lot rain gardens and infiltration trenches. RIDEM subdivision suitability for individual sewage disposal has been approved for all eight lots. The RIDOT physical alteration permit application for the entrance road off East Main Rd. has been submitted and revised with written confirmation of pending approval. Portsmouth Water & Fire District has requested a loop of the water main to the water main on Moitoza Lane. The cul-de- sac radius is the same approved for another petition submitted by Rhode Island Nurseries. Mr. Braga has to obtain direct approval from Portsmouth Fire Department.

Chris Harkins, Harkins Development Company, petitioner explained his discussion with Mr. McGlinn, Portsmouth Water & Fire Department regarding the water main loop.

Gary Crosby, Town Planner distributed an email message, August 14, 2013 from Robert Schultz, Newport Water District in which Mr. Schultz expressed concerns for subsurface work within the existing easement (1966) benefiting the district and stated that such work should be reviewed by the water district.

Mr. Bissonnette called for public comment.

Jennifer Lamond, 78 Goulart Lane, abutter, asked several questions. Mr. Braga confirmed that the lots perk. Mr. Bissonnette explained that given the configuration of the site, a secondary ingress/egress is not possible. Ms. Lamond express her concerns for RIDOT approval of the roadway. Mr. Braga noted that a 2007 traffic study indicated good site distances for the 54 lot proposal. Ms. Lamond inquired about the vegetative buffer between Goulart Lane and the proposed site. Mr. Harkins stated that one already exists. Mr. Bissonnette explained that any subdivision approval runs with the land and would transfer to a new owner if the developer decides to sell the property.

3 Norman Siebens, 34 Goulart Lane, abutter, inquired about the type of residences. Mr. Harkins confirmed that the plan proposes single family homes. Mr. Bissonnette confirmed that Goulart Lane would not be used as a means of ingress/egress to the subdivision.

John Deveau, 2 East Main Road, owner, Spruce Acres, abutter expressed his concern for the impact of the development on his property. Mr. Bissonnette and Mr. Harding explained that the Planning Board could require road connection if he wanted to develop his land in the future. He expressed concern for the removal of the vegetative buffer by new owners.

Joanne Mower, 100 Belmont Drive, noting that her daughter lives at 88 East Main Road, an abutter to the east, expressed concern for her daughter’s property, particularly the close proximity of a residential structure on a lot. Mr. Braga explained that the house location on the plan is subject to RIDEM approval of the lot septic system. He noted that the house is within the building set back and that the septic systems are designed for four bedroom houses. Mr. Harkins noted that the asking price for the proposed residences should be moderate and the petition does not request low-to-moderate income housing.

Mr. Bissonnette closed the hearing. Mr. Harkins requested preliminary plan approval subject to RIDOT physical alteration permit approval. He asked if, once he receives the PAP from RIDOT, he could construct the road in prior to final approval. He suggested that Mr. Harkins inquire with Mr. Medeiros about the road construction.

MOTION: Mr. Harding made a motion, seconded by Mr. Wimpress, to make preliminary plan approval for Harkin Development Company (Portsmouth Heights), AP 63, Lot 15, subject to RIDOT PAP approval, Portsmouth Fire Department approval of the roadway and cul-de-sac, and the developer’s consideration for vegetative buffer and residential structure locations to alleviate the concerns expressed by the abutters. The motion was carried. Six votes approved. Ms. Wilson abstaining.

6. Clock Tower Square, LLC, AP 37, Lot 69 – Review Drainage Design and the other conditions imposed by the Board in the Final Decision Atty. Mark Gertsacov, 144 Medway St, Providence appeared representing Clock Tower Square, LLC. to review the drainage design.

Lyn Small, P.E., Northeast Engineers & Consultants, Inc., reviewed her findings associated with her study of the approved drainage plan designed by Fuss & O’Neill in 2005. She described the existing infiltration system, which consists of a central water quality basin flanked by two extended areas for overflow prior to infiltration into the ground. A sub drain in the southwest corner of the site ensures proper infiltration. Site inspections revealed that the center area was not infiltrating. This problem was corrected with the removal of collected sediment. A sandy loamy mixture was then deposited to allow proper infiltration. The vegetation for the entire site was also cut. Ms. Small stated that the system is working as intended and designed.

Mr. Bissonnette called for public comment.

John Oliveira, 88 McBride Drive, abutter, noted that his property continues to experience water drainage problems. He expressed concerns that the system is not draining properly and that the existing conditions will worsen with further construction and completion of the project. He explained his observations that the pipe from the drainage basins outflows to a rock bed and that when the swale 4 overflows, water comes over a wall back onto his property. He explained that the swale is causing flow to undermine the utility posts along the fence line that borders the town road to Melville. He suggested that a pipe be installed to collect the drainage and direct it under the road to the streams in the Melville campground.

In response to questions from Ms. Wilson, Ms. Small noted that the entire system was cleaned out and is infiltrating properly. She noted that the system was designed for a 25- year storm event according to regulation. She emphasized that the purpose of the sub drain is to ensure that the basins do not hold water.

Mr. Oliveira stated that when the meters for the system were not working properly and all three basins were filled, there was “…a river…” of water coming across the swale and directly onto his property.

Ms. Small stated that no one is claiming that the system was well kept by the previous owners and that the system is now working the way it was designed and approved by the state and the town.

Mr. Bissonnette suggested that Ms. Small confer with town officials to see if Mr. Oliveira’s suggestion could be accommodated. Ms. Small agreed with Mr. Bissonnette but wanted to allow the petitioner to begin construction on the next building. The Board members and Mr. Oliveira discussed briefly this scenario.

MOTION: Mr. Wimpress made a motion, seconded by Mr. Harding, to accept the drainage report submitted by Northeast Engineers & Consultants, Inc. for Clock Tower Square, LLC, AP 37, Lot 69 in order to allow the petitioner to submit building permits, subject to concurrent action on the part of the project engineer to explore with town officials permanent solutions for abutter property drainage problems by the October 9, 2013 Planning Board meeting. All in favor. So voted.

7. Northern Waterfront Associates, LP – AP 16, Lot 37, AP 17, Lots 8 & 9, AP 22, Lots 2, 3, 4 & 10, AP 23, Lots 18 & 19 – Request for a minor change to the location of the Mailbox Kiosk and the Public Restrooms and review Multi-Family/Amenities build out. Vernon L. Gorton appeared representing Northern Waterfront Associates, LP to request approval for the relocation of the public restrooms and the location of the mailbox kiosk and to show the location of the cabanas in the Newport Beach Club development. He explained that the CRMC assent required a seasonal rest room or port-o-john located at the westerly terminus of the public access roadway, near the beginning of the walking trail. There is only enough room for one facility. He proposed a larger facility, 15 ft x 8 ft., to be located instead by the required parking area and the railroad tracks. CRMC has to approve this location.

Mr. Wimpress expressed his concern that the new location is too far away from the public area. Mr. Harding suggested putting facilities at each location. Atty. Gorton stated that the new location is no farther away than the restroom facilities at Sandy Point Beach.

Denise Edy, Vice President, New England Operations, O’Neill Property Group noted that the CRMC assent gave a vague description for the restroom facility as other than a standard port-o-john. She explained that the larger seasonal facilities would not fit in the originally proposed location. Her team interpreted the assent to mean that the size and kind of facility was more important than the exact location.

5 Mr. Wimpress stated that there should be no facility rather than have one located up the hill away from the public area. Mr. Harding felt that the location near the parking area would benefit families with children. Ms. Wilson stated that CRMC would not want the facility in the proposed location near the wetlands and that it would be less subject to vandalism in the new location.

MOTION: Ms. Wilson made a motion, seconded by Mr. Czech, to make an advisory recommendation to the Executive Secretary to approve a minor change for the new location of the public restroom for Northern Waterfront Associates, LP – AP 16, Lot 37, AP 17, Lots 8 & 9, AP 22, Lots 2, 3, 4 & 10, AP 23, Lots 18 & 19. The motion was carried. Ms. Wilson, Mr. Bissonnette, Mr. Czech and Mr. James approved. Messrs. Wimpress and Harding opposed Atty. Gorton presented the plan for the mailbox kiosk for Newport Beach Club. He noted that the kiosk has been installed on the east side of the first subdivision road to the north off and off Terminal Rd. He noted that the USPS required that it be located as close to the development entrance as possible. The kiosk sits on a pull out area designed to ADA standards. The kiosk is also more than three feet from the abutter’s property line and due to standards was difficult to place in line with the abutter’s shed. Atty. Gorton presented pictures of the kiosk. He requested approval for the location of the kiosk.

Bart Noonan, 280 Bristol Ferry Road, abutter expressed his concern that the kiosk was built 42 inches from his property line without a permit. He showed pictures of the kiosk under construction with ladders leaning on the structure and crossing his property line. He expressed his concern that with 170 mailboxes, the kiosk pull out will be a focal point of activity with traffic jams at certain points of the day and night. He is concerned about car lights shining into his home. He suggested that the petitioner relocate the kiosk on a plot closer to the development entrance on Terminal Road. Showing a video of the area, he stated that the kiosk was built without forethought and that it could negatively affect the value of his home.

Mr. Bissonnette stated that given the 5 to 6 years that the Planning Board conducted hearings on the Newport Beach Club development, he is surprised that the kiosk was built without approval or permit. He regretted that its location would burden an abutter outside the development.

Atty. Gorton argued that golf carts would be the primary vehicles approaching the kiosk since they are the main transportation throughout the resort development. Ms. Wilson suggested relocating the kiosk further down Terminal Road on AP 23, Lot 19. Atty. Gorton argued that the location was favorable to the postal service as being the least intrusive and most efficient for postal truck access. He confirmed that the kiosk would hold 152 mailboxes.

MOTION: Mr. Wimpress made a motion, seconded by Mr. Harding, to make an advisory recommendation to the Executive Secretary to approve the location of the mailbox kiosk in the Newport Beach Club development for Northern Waterfront Associates, LP – AP 16, Lot 37, AP 17, Lots 8 & 9, AP 22, Lots 2, 3, 4 & 10, AP 23, Lots 18 & 19. The motion was carried. Messrs. Harding, Wimpress, James, and Czech approved. Mr. Bissonnette and Ms. Wilson opposed.

Atty. Gorton presented a plan that indicates the footprint of the cabanas. Lyn Small, P.E., Northeast Engineers & Consultants, Inc. explained the locations of the cabana units around the pool area of the development west of the railroad tracks. She plans to return to the Planning Board in October for approval of the design of the cabanas.

8. Eleanor Alphonse, AP 44, Lots 20, 20A, 21 & 22 – Minor Subdivision for existing house lots 6 Atty. Eric Chappell appeared representing Eleanor Alphonse, petitioner with requests for approval of a minor subdivision along West Main Road and a favorable recommendation to the Zoning Board of Review for necessary variances. Mrs. Alphonse owns the three lots involved, 20, 20A & 21. Each lot has separate electric and water service and septic systems. Each has its own driveway onto a public street. Mrs. Alphonse is in the process of selling Lot 20A, 1452 West Main Road. The houses were built in the 1950’s and 60’s. Atty. Chappell has been unable to find a recorded plan that dates back that far. He stated that the tax assessor’s map recognizes the lots configured according to a 1983 deed in which a lot was created without approval of the Planning Board. He was seeking approval to create a minor subdivision to record in the land evidence records.

MOTION: Mr. Harding made a motion, seconded by Mr. Czech, to approve a minor subdivision for Eleanor Alphonse, AP 44, Lots 20, 20A, 21 & 22 according to the plan presented subject to approval by the Zoning Board of Review of the requested special use permit and all necessary variances. All in favor. So voted.

9. Edwin Paul, AP 64, Lot 158 – Minor Subdivision – conditional approval and advisory recommendation to the Zoning Board for a frontage variance Atty. Vernon L. Gorton appeared representing Edwin Paul, petitioner with a request for conditional approval and an advisory recommendation for frontage variance for a lot on Braman’s Lane, 157,000 sq. ft., zoned R30. The plans calls for the creation of two lots: one approximately 67,000 sq. ft. and another, 88,00 sq. ft. The larger lot wraps around the other with a “hockey stick” driveway servicing it.

MOTION: Mr. Harding made a motion, seconded by Mr. Czech, to approve a minor subdivision for Edwin Paul, AP 64, Lot 158 according to the plan presented conditional upon approval by the Zoning Board of Review of the requested variance for frontage. All in favor. So voted.

10. David Cotta, AP 51, Lot 17 & 17A – Concept review to create new lot and adjust boundaries on existing lot. Dan Cotta, P.E., American Engineering, Inc. appeared for David Cotta, 895 Middle Rd, Quonset View Farm with a concept plan for minor subdivision with a new lot consisting of the land upon which sits David Cotta’s house. David Cotta expressed in a letter to the Planning Board that he is seeking the subdivision approval to further his estate planning and so as not to alter the farm configuration. Ms. Wilson and Mr. Bissonnette suggested that the plan show the location of all utilities, driveways, related easements and deeds etc. David Cotta pointed out the location of the wells. Dan Cotta asked that the Board to allow him to limit the class one survey to the front of the property around the area of the proposed subdivision. Mr. Bissonnette agreed.

11. Apollo Brothers, LLC, AP 24, Lot 11 – Modification to the approved Low and Moderate Multifamily Housing Project located at 3352 East Main Road

MOTION: Mr. Harding made a motion, seconded by Mr. Czech to approve the decision for Apollo Brothers, LLC, AP 24, Lot 11, as written and to have the decision recorded with the town. All in favor. So voted.

12. Discuss Aquidneck Island Planning Commission (AIPC) and Report of AIPC Activities Mr. Harding and Mr. Wimpress stated that the Commission did not meet over the previous month.

13. Monthly Project Status Reports, Administrative Subdivisions and Plat Plan Filings. 7 Mr. Lesinski gave a brief report and stated that there were essentially no changes to the monthly project status reports.

MOTION: Mr. Wimpress made a motion, seconded by Mr. Harding, to place the Monthly Project Status Reports, Administrative Subdivisions and Plat Plan Filings, August 14, 2013 in the record. All in favor. So voted.

Mr. Lesinski distributed a contact list for the Planning Board. At 9:40 p.m., a motion was duly made and seconded to adjourn the meeting. All in favor. So voted.

Respectfully submitted:

Dede Walsh Recording Secretary for:

Leon Lesinski, Administrative Officer

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