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PORTSMOUTH PLANNING BOARD Regular Meeting August 14, 2013

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PORTSMOUTH PLANNING BOARD Regular Meeting August 14, 2013 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 The motion was not seconded and withdrawn.’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.
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