September 05, 2012PLYMOUTH—A new proposal for commercial development at the former "Lowe's" site along the Tenney Mountain Highway ran into a formidable array of opposing forces last Thursday evening, when the Plymouth Planning Board held a Public Hearing for a subdivision application by the owner-developer, Riverside Landing, LLC.
The Planning Board is scheduled to reconvene this evening, Thursday, Sept. 6, to continue its deliberation on a two-lot Commercial Subdivision application and subsequent Site Plan Review for construction of a McDonald's Fast Food Restaurant and a bank on two one-acre lots in the floodplain of the Baker River. The proposal would relocate existing Plymouth businesses on a small two-lot subdivision across from the Highland Street intersection on the North side of the Tenney Mountain Highway.
While several Plymouth residents present at the hearing spoke in favor of the new proposal, including Frank Miller and Russell Harris from Harris Family Furniture, the bulk of the public testimony raised objections and concerns about the new plan.
Testimony in opposition was received from several abutters, including Fairgrounds Road residents Bill and Betty Batchelder and Gunnar Baldwin, as well as a number of prominent local legal experts and members of the Plymouth Conservation Commission.
The developer has also submitted an application for an Alteration of Terrain Permit from the State of New Hampshire Department of Environmental Services, as well as a Permit to the State Department of Transportation for proposed changes at the Highland Street intersection on the Tenney Mountain Highway.
The proposed new development would entail excavation in the designated Environmentally-Sensitive Zone along the Baker River in order to provide the fill required to raise the construction site above floodplain.
According to the project engineer, Jeff Lewis, from Northpoint Engineering, flood mitigation is expected to require excavation of about 57,000 cubic yards, or 11 feet, of fill to raise the construction site above floodplain. He stressed that this was "much less impact" than the previous proposed development at the site (Lowe's), and that for the time being, the remainder of the property would "remain untouched" by the current proposal.
Lewis noted that the New Hampshire Supreme Court ultimately settled the previous legal challenge in favor of the applicant, the developer, and that the legal decision, giving the green light to the required excavation in the Environmentally-Sensitive Zone, explicitly applies to any similar subsequent development proposal from the owner-developer that may come before the Board.
Despite the legal decision, Lowe's ultimately withdrew its proposal for construction of a large Home Improvement Center at the site after the downturn in the economy precipitated a shift in thinking about the development.
But the spectre of the long, drawn out court battle over the former Lowe's proposal on the site loomed large over the current proceedings, as abutters and prominent residents raised familiar environmental, legal and aesthetic concerns about the proposed development on the site that was inundated by overflow from the Baker River at just about this time last year, when Hurricane Irene caused extensive flooding on the property.
"The value of this land for flood protection became very evident during that event," said Plymouth resident, Attorney Quentin Blaine.
In addition to raising a number of technical, procedural questions about the Public Hearing, he appealed to the Planning Board to consider the "bigger picture," to ask questions about whether the proposed development was consistent with the Town's existing Master Plan, and to consider the importance of protecting the Town's water resources.
"Look at sustainability. Look at 100 years down the road," urged Blaine.
Plymouth Village Water and Sewer District Commissioner, Dick Flanders, agreed with this sentiment. He warned against the "incremental impact" of approving a succession of small projects in the floodplain that lies about the "critical aquifer" that serves the Town's water supply. He said he felt that current regulations and state permit requirements are inadequate to protect water resources against long-term encroachment from incremental development.
Plymouth resident, Attorney Paul Phillips, raised a number of salient questions about the consistency of the proposed development with the Town of Plymouth Zoning Ordinance and subdivision regulations. While it was widely acknowledged that the Supreme Court had spoken the final word on the issue of whether excavation in the ESZ was permitted as "incidental" to lawful construction on the site, Phillips suggested that there were other issues left open for legal challenge as inconsistent with several provisions of the Zoning Ordinance, including the controversial Number 710.4, Section C, which prohibits certain activities in the Environmentally-Sensitive Zone.
He also pointed out Section 8(C) (2) of the Town's Subdivision Regulations, which specified that "land subject to periodic flooding, poor drainage, or other hazardous conditions, shall not ordinarily be subdivided.
But It was this provision 710.4, Section C, which, once again, gave Planning Board members pause as they began their deliberations. In the Environemtally-Sensitive Zone, this section prohibits "any placement or removal of fill, excepting that which is incidental to the lawful construction or alteration of a building or structure or the lawful construction or alteration of a parking lot or way, including a driveway, on a portion of the premises where removal occurs..."
Planning Board member Paul Wilson pointed out that the definition of "incidental" notwithstanding, given this provision, the Subdivision application under consideration might be considered "contradictory on its face" because it would carve out two separate lots which would then constitute separate premises. Despite the fact that it would happen to have common ownership, this would presumably make the required excavation prohibited under the Plymouth Zoning Ordinance.
Wilson succeeded in convincing a majority of his fellow Planning Board members of the wisdom of continuing deliberations on the Commercial Subdivision application until further clarification on the legal definition of the tern "premises" could be obtained from Town Counsel. Deliberations are scheduled to resume this evening, Sept. 6, at 6:30 p.m. at Plymouth Town Hall.