APRIL 2, 2009 Minutes

Pittsfield Planning Board
Town Hall, 85 Main Street
Pittsfield, NH 03263
Minutes of Public Meeting

DATE: Thursday, APRIL 2, 2009

ITEM 1. Call to Order at 7:00 P.M. by Gerard Leduc, Chairman

ITEM 2. Roll Call

Members Present:

Gerard Leduc (GL), Chairman, Fred Hast (FH), Selectman Ex Officio, Daniel Greene (DG), Bill Miskoe (BM) Vice-Chairman, Jim Pritchard (JP), Ted Mitchell (TM) and Delores Fritz, Recording Secretary.

Members Absent:

Rich Hunsberger, (RH), and Dan Schroth (DS).

(GL) Ted Mitchell, Alternate, will you please be seated on Board.

ITEM 3. Election of Chairman and Vice-Chairman

(JP) Motion to approve Gerard Leduc as Chairman. (BM) Second.
Carried 5-0.

(JP) Motion to approve Bill Miskoe as Vice-Chairman. (DG) Second. Carried 5-0.

ITEM 4. A Public Hearing regarding a proposed Lot Line Adjustment application submitted by Mark A. Riel, 960 Catamount Road, Pittsfield, NH 03263 involving Tax Map R15, Lots 22, 31 and 32. The lot line adjustment will transfer property to the owners of Tax Map R15, Lots 31 and 32, which will result in three more uniform lots when completed.

(BM) Motion to approve application as complete. (FH) Second.
Carried 6-0.

Mr. Jeff Green, Land Surveyor was present representing Mr. Riel.

(BM) Unless there is some compelling reason not to approve this lot line adjustment, the Planning Board must approve.

(BM) Motion to approve lot line adjustment as noted in application as submitted by Mark A. Riel. (DG) Second. After Discussion: Carried 6-0.

Public Input

Discussion: Mr. Joseph Darrah noted that he agreed with the lot line adjustment. (BM) Are you creating non-conforming lots? Mr. Green: “No, the frontage does not change. This will just make lots larger.” There is no affect on the lots other than control behind the properties. (FH) Mr. Riel will be getting rid of some taxable property.

ITEM 6. Approval of Minutes of March 19, 2009

(BM) Motion to approve Minutes of March 19, 2009. (FH) Second.

Corrections to Minutes of March 19, 2009:

Page No. 4, Third Paragraph: (JP) suggested that the planning board allow the public to participate in work sessions. He noted that not many people come to work sessions and that, in his opinion, if a person takes the time to come to a work session, then he should not have to wait silently for two hours and then be given about 30 seconds for a comment in the Public Input item. He suggested that the board would benefit from the increased public participation.

Page No. 7, Second Paragraph, Line 3: The issue of constitutionally is….

Carried as corrected: 6-0.

ITEM 5. A Public Hearing for application for a Site Plan Review for construction of a proposed 1,500 sq. ft. dry storage building at 84 Barnstead Road, Pittsfield 03263 (Tax Map R15, Lot 26). The property is owned by Joseph Darrah, 95 Will Smith Road, Barnstead, NH 03218. Carl Sherblom, 67 Mountain Road, Pittsfield, NH 03263 represented the applicant.

(DG) noted that he has had dealings with Mr. Darrah in the past and would recuse himself if the Board felt that it was necessary. Board noted it would not be necessary.

(BM) noted that he has had business dealings with Mr. Darrah in the past but not currently and would recuse himself if the Board felt that it was necessary. Board noted that it would not be necessary.

(GL) Fred (FH) do you feel you can use fair judgment? (FH) noted that he felt that he could use fair judgment. All members agreed.

(GL) Does the Board feel that the Site Plan Review application is complete?

It is noted that Mr. Darrah was present at a conceptual hearing before the Board on March 19th at which time plans presented by Carl Sherblom indicated the size of the dry storage building would be 1,500 sq. ft., which were presented prior to the March 19th hearing. At the conceptual hearing, Mr. Sherblom presented “new” plans indicating the size of the dry storage building would be 4,000 sq. ft. However, in the interim, Mr. Darrah had filed a Site Plan Review application with the incorrect size and which was noticed in the newspaper and mailed certified, return receipt requested to the abutters.

(JP) Because of some of the issues coming up, I question whether we have jurisdiction to accept the application. Because of the 15 days rule, the Planning Board does not have jurisdiction to accept whether it is complete or not. Only 14 days exist between the time that the “corrected plans” were filed and the day of this hearing. I believe that now the plans have been amended to 5,000 sq. ft. Mr. Sherblom noted that he was “in a rush” to get the plans in and misread his information. I was made aware of the error the afternoon of the conceptual and came in with the corrected plans that night. (JP) When did the size go from 4,000 to 5,000 sq. ft.? Mr. Darrah noted “Right from the gecko.” I had plans a year ago. It was a clerical error. (BM) it has gone from 1,500 to 4,000 and now 5,000 sq. ft. We haven’t noticed the public. I do not think this is such a major problem but we have to follow State law as much as I would like to go ahead and get it approved.
(JP) noted he was at the site today and there was digging. Mr. Darrah, “Without permission.” (JP) I thought there a release that was present. I came to the property and Mr. Darrah saw me immediately. We discussed some issues he brought up and I explained some of the issues to him. He remarked that he had discussed with his lawyer who brought up “extenuating circumstances.” Mr. Darrah, “That is not the way it went at all.” I did not go to (JP), he came onto property and said he came to the property several times before. (JP) questioned whether Mr. Darrah had any information on any law supporting this? Mr. Darrah related that he had talked to his lawyer who had drawn no conclusion but noted since there was written permission from every abutter, it might be able to go through. All abutters have signed off.

(BM) related that this is a slightly different issue. You gave the public information that would indicate a building of 1,500 sq.ft. Could you please give us some extenuating circumstances? (TM) related, “It cannot go beyond what we have done until the public has been notified of the correct information.” (BM) I agree. I do not think we can legally hold a meeting if it has not been noticed correctly. (TM) If we bend the rules for one, then we would have to do it for all. (BM) “We would be setting a bad precedent.”

(FH) noted that he had discussed the discrepancy in building size with Atty. Sanderson who thought it did not create a problem as Planning Board can often change things when the application is before them. (GL) notified Board that he had discussed this with a Christine Fillmore at LGC who suggested it was far safer to re-notice it. (BM) explained that anyone could within thirty days appeal the decision of the Planning Board to the Zoning Board. (JP) noted that this could not be appealed to the Zoning Board, as it is an issue of State law. There isn’t any thirty-day appeal attached to this. There have been suggestions to do it anyway and then wait to see if anyone appeals it. I am not willing to do anything if I am sure it is illegal. Mr. Darrah noted that he was not trying to “hide anything.” (BM) assured him it was not a question of his integrity.

(JP) further explained to Mr. Darrah that the issue was the 15 day rule and that the Board was not aware of the change in size of the building until 14 days prior to this hearing. Board further discussed with Mr. Darrah and Mr. Sherblom the change in the size of the building, acceptance of application and how it came about, if hearing could proceed, if there were any RSA’s pertaining to this type of situation, revision of plans, posting of the notice, and how clerical error occurred.

Mr. Darrah, “I would have filed sooner if I have known about filing sooner.” (JP) Your statements are extremely troubling. It is the job of this Town to help every citizen and State law has said this. You should have been helped to follow the proper procedure. It is not our job to do that. That is why the Building Inspector is supposed to help you and if not him, then the Town Administrator. We cannot waive a mandatory State law. You did not get the help that you needed.

Mr. Darrah “I would ask you to pass it and then take my chances.” Board could not agree to this. (BM) explained to him that if he would begin “building” he would be in violation of the Zoning Ordinances and the code enforcement that would result. He explained what could occur if this should happen. Mr. Darrah “Tell me what you would like me to do?”

Jeff Green, Land Surveyor noted that he did not agree. Code enforcement can only act on a complaint of a citizen in the Town. I understand there is a violation in place. (JP) noted that the reason he disagreed with him was because he never suggested that Planning Board has any enforcement issues. If he were in violation, it would be the code enforcement officer who would deal with it or turn a “blind eye to it.” The Board of Selectman does not have to turn a blind eye to it. (BM) It isn’t a violation until the code enforcement officer finds it so. Joe has asked what he should be doing. He should submit a corrected Site Plan Review application for the correct size of the building. Mr. Darrah, “I would not have done that if I had not talked to the Chair. I am not trying to mislead anyone.” (GL) I told you to do it at your own risk.

(BM) You can withdraw your application without prejudice. You can submit a new application with the correct information so that it can be posted correctly. (DG) He has a right to withdraw his application before Board makes any decision on this.

After further discussion, (JP) suggest that he not withdraw his application but rather it be continued and allow time for it to be re-noticed with the correct square footage. “Please make sure that what you are proposing is what is going to happen. We can re-notice it for 5,000 sq. ft. in the Concord Monitor, which would be the only way that we can get the ten days. The abutters would have to be re-notified also.” (Kyle noted that Planning Board Secretary is not available on Fridays and that he would take care of this re-noticing via newspaper and abutter notification.) He noted that at the conceptual it was noted that the water impact line was to be eliminated.
Mr. Sherblom noted that this would remain because of the heating boiler.
(BM) This would have to stay. (DG) suggested that he also complete the application in entirety namely Page 2, Nos. 9, 10, 11 and note in any areas N/A which are not applicable. (BM) Make sure everything is either check marked or noted as N/A. (JP) Work very closely with the Building Inspector on this. The Town Hall staff is here to help you.

(GL) This is continued to April 16, 2009 at 7:00 P.M. and will be re-posted in Concord Monitor with correct square footage and abutters notified.

Break 8:42 P.M. Resume at 8:50 P.M.

_____________________________________________________________

PITTSFIELD PLANNING BOARD
Town Hall, 85 Main Street
Pittsfield, NH 03263
Minutes of Public Meeting

MINUTES AS REVISED (ITEMS 2 THROUGH 6) BY JIM PRITCHARD AND APPROVED BY PLANNING BOARD ON
MAY 7, 2009

DATE: Thursday, APRIL 2, 2009

ITEM 1. Call to Order at 7:00 P.M. by Gerard Leduc, Chairman

ITEM 2. Roll Call

Members Present:

Gerard Leduc (GL), Chairman, Fred Hast (FH), Selectman Ex Officio, Daniel Greene (DG), Bill Miskoe (BM) Vice-Chairman, Jim Pritchard (JP), Ted Mitchell (TM) and Delores Fritz, Recording Secretary.

Members Absent:

Rich Hunsberger, (RH), and Dan Schroth (DS).

(GL) Ted Mitchell, Alternate, will you please be seated on Board.

ITEM 3. Election of Chairman and Vice-Chairman

(JP) Motion to approve Gerard Leduc as Chairman. (BM) Second.
Carried 5-0.

(JP) Motion to approve Bill Miskoe as Vice-Chairman. (DG) Second. Carried 5-0.

ITEM 4. A Public Hearing regarding a proposed Lot Line Adjustment application submitted by Mark A. Riel, 960 Catamount Road, Pittsfield, NH 03263 involving Tax Map R15, Lots 22, 31 and 32. The lot line adjustment will transfer property to the owners of Tax Map R15, Lots 31 and 32, which will result in three more uniform lots when completed.

(BM) Motion to approve application as complete. (FH) Second. (BM) Unless there is some compelling reason not to approve this lot line adjustment, the Planning Board must approve. Motion to approve application as complete carried 6-0.

(BM) Motion to approve lot line adjustment as noted in application as submitted by Mark A. Riel. (DG) Second. After Discussion: Carried 6-0.

Public Input

Mr. Jeff Green, Land Surveyor was present representing Mr. Riel.

Discussion: Mr. Joseph Darrah noted that he agreed with the lot line adjustment. (BM) Are you creating non-conforming lots? Mr. Green: “No, the frontage does not change. This will just make lots larger.” There is no affect on the lots other than control behind the properties. (FH) Mr. Riel will be getting rid of some taxable property.

After discussion, motion to approve the lot line adjustment carried 6-0.

ITEM 6. Approval of Minutes of March 19, 2009

(BM) Motion to approve Minutes of March 19, 2009. (FH) Second.

Corrections to Minutes of March 19, 2009:

Page No. 4, Third Paragraph: (JP) suggested that the planning board allow the public to participate in work sessions. He noted that not many people come to work sessions and that, in his opinion, if a person takes the time to come to a work session, then he should not have to wait silently for two hours and then be given about 30 seconds for a comment in the Public Input item. He suggested that the board would benefit from the increased public participation.

Page No. 7, Second Paragraph, Line 3: The issue of constitutionally is….

A few other small changes.

Carried as corrected: 6-0.

(FH) said that he agreed with (JP) on allowing public input at work sessions.

ITEM 5. A Public Hearing for application for a Site Plan Review for construction of a proposed 1,500 sq. ft. dry storage building at 84 Barnstead Road, Pittsfield 03263 (Tax Map R15, Lot 26). The property is owned by Joseph Darrah, 95 Will Smith Road, Barnstead, NH 03218. Carl Sherblom, 67 Mountain Road, Pittsfield, NH 03263 represented the applicant.

(DG) noted that he has had dealings with Mr. Darrah in the past and would recuse himself if Mr. Darrah felt that it was necessary. (DG) “Do you want me to recuse myself or not?” Mr. Darrah said, “no.”

(BM) noted that he has had business dealings with Mr. Darrah in the past but not currently and would recuse himself if Mr. Darrah or any member of the Board felt that it was necessary. Mr. Darrah said “As long as I have equal opportunity with everyone… (BM) “I believe I can be fair about this.” Mr. Darrah: …I have no issue.” No board member requested that (BM) recuse himself.

(GL) “Fred, I have a question for you. Do you feel you can do it?”
(FH) “Excuse me?”
(GL) “Where you were so close to the…”
(FH) “I feel I can use my fair judgment. If the rest of the board doesn’t feel that way, I’ll step down, but I think I can.”
(GL) “How does the rest of the board feel?”
(DG) “I don’t have a problem with Fred.”
(BM) “I have no problem. I don’t think we need to go through that.”
(JP) “I don’t know enough to make a suggestion.”
(GL) “Okay, Fred, you can stay up, then.”

(GL) Does the Board feel that the Site Plan Review application is complete?

Editorial comment: On March 18, 2009, Mr. Darrah applied for site plan approval of a 1500 square foot building. March 18, 2009, is 15 days before today’s hearing on April 2, 2009. On the day of Mr. Darrah’s application, March 18, 2009, the Town bought a notice advertisement in the Concord Monitor and sent notice letters by certified mail to abutters. On the next day, March 19, 2009, Mr. Darrah had a conceptual hearing before the planning board, and, at that hearing, he presented new plans indicating the size of the building as 4000 square feet. March 19, 2009, is only 14 days before today’s hearing on April 2, 2009.

(JP) “May I just make a suggestion here? Because of some of the issues that have come up on this, the question is not whether it is complete, but whether we have jurisdiction to accept it as complete. The two questions are a little different. There is a 15-day period in which the application has to be presented to the planning board before…” (BM) “10. Oh. Okay.” (JP) “15. And the planning board doesn’t have jurisdiction to accept it prior to that time whether it’s complete or not. So I think we need to discuss whether or not that 15-day period has been met.”

Recording secretary Dee Fritz said that the initial application was filed on March 18, 2009. Mr. Darrah’s agent, Carl Sherblom, confirmed that he had filed the initial application on March 18, 2009. (JP) noted that initial application had a 1500 square foot building, which, on the next day, March 19, turned into a 4000 square foot building, and now today it is a 5000 square foot building. (JP) said that, in his mind, going from 1500 to 5000, an increase of more than 3 times, was a substantial amendment. Mr. Sherblom noted that he was “in a rush” to get the plans in and misread his information. I was made aware of the error the afternoon of the conceptual and came in with the corrected plans that night. Mr. Darrah said that the 1500 square feet was a clerical error that was corrected within four hours of its being brought to his attention. He intended 4000 from day one. Then, after reviewing the site, that’s when he decided to go to 5000 square feet. (JP) “When did you decide that you were going to go from 4000 to 5000” Mr. Darrah: “After I reviewed the site.” (JP) “Yes, what day?” Mr. Darrah: “I can’t specify.” (JP) explained to Mr. Darrah the planning board’s difficulty. RSA 676:4, I, (b). The 15-day rule is not discretionary. (BM) it has gone from 1,500 to 4,000 and now 5,000 sq. ft. We haven’t noticed the public. I do not think this is such a major problem but we have to follow State law as much as I would like to go ahead and get it approved.

(JP) noted he was at the site Tuesday. Mr. Darrah interrupted, “Without permission.” (JP) I thought there a release that was present. I came to the property and Mr. Darrah saw me immediately. We discussed some issues he brought up and I explained some of the issues to him. He remarked that he had discussed with his lawyer who said, “there could be extenuating circumstances that would allow us to get around this 15-day rule.” (JP) “At the time, I told him to be sure and bring any law with him that would substantiate anything that would allow us to get around this 15-day rule.” Mr. Darrah, “That is not the way it went at all.” I did not go to (JP), he came onto property and said he came to the property several times before. (JP) questioned whether Mr. Darrah had any law to let us get around this? Mr. Darrah related that he had talked to his lawyer who had drawn no conclusion but noted since there was written permission from every abutter, it might be able to go through. All abutters have signed off.

(BM) related that this is a slightly different issue. You gave the public information that would indicate a building of 1,500 sq. ft. Could you please give us some extenuating circumstances? (TM) related, “It cannot go beyond what we have done until the public has been notified of the correct information.” (BM) I agree. I do not think we can legally hold a meeting if it has not been noticed correctly. (TM) Even beyond the legal part of it, if we are perceived to bend rules, what’s to keep someone in the future from purposely deceiving the public and changing it? We can’t be put in a position where our credibility is shot to hell. (BM) “We should not be setting a bad precedent is what Ted is getting at.”

(FH) noted that he had discussed the discrepancy in building size with Atty. Sanderson, at LGC, who thought it did not create a problem as Planning Board can often change things when the application is before them. (FH) said that (GL) notified Board that he had discussed this with a Christine Fillmore at LGC who suggested it was far safer to re-notice it. (BM) explained that, if we go ahead tonight, anyone could within thirty days appeal the decision of the Planning Board to the ZBA. Improper notice would be great appeal grounds, “but it seems to me that if we accept that this is a clerical error that did not intend to deceive anybody, we could go ahead, however warning the applicant that anybody who challenges it on a technicality is probably going to get an appeal.” (GL) “Go ahead, Jim.” (JP) “I have a couple of responses to that. First, this would not be an appeal to the zoning board of adjustment because the issue is whether proper notice was given. That’s not a zoning issue, that’s an issue of State law.” (BM) “Does that get appealed to the court, then?” (JP) “Yes, that would be appealed directly to Superior Court.” (BM) “All right.” (JP) “The other thing to be born in mind, and, if I were Mr. Darrah, I would take very careful note of this, there isn’t any 30-day appeal period that attaches to this situation because, if improper notice is given, a person could not know about it beyond the 30-day period. This is why I think that Mr. Darrah really should stop and think about what he is doing because this creates a cloud over his project that doesn’t go away in 30 days. And third, I would point out that you’re suggesting, well, we know this is probably wrong, but let’s do it anyway because we can probably get away with it. And…” (BM) “That wasn’t quite what I was suggesting.” (JP) “I know that, well, that’s not what you said, but you said let’s do it and see if anybody appeals it.” (BM) “Yes, I did because I was just trying to be practical rather than legalistic.” (JP) “I don’t like the idea of doing something that we are pretty sure is illegal but thinking, well, we can get away with it because probably nobody will appeal it. I simply don’t like that.” (BM) “Well, it puts the applicant in perpetual jeopardy of challenge. I was wrong on the 30-days.” (JP) “Yes.” (BM) “You say this could be challenged at any time.” (JP) “I believe so, yes.” (BM) “Ten years down the line…” (JP) “Absolutely.” (BM) …someone could challenge this whole decision.” (JP) “And I think that’s something he has to understand.” (BM) “That’s a risk he has to take and the board has to take, too.” Mr. Darrah noted that he was not trying to “hide anything.” (BM) assured him it was not a question of his integrity.

Mr. Darrah asked why, since there was 10 days of advertising, legally, and if everyone knew that there was a problem with the 1500 square feet, why didn’t they say, let’s put it back in the paper and change it? (JP) “I believe they did.” (GL) “We did. We asked you, I had Dee call you up and ask you to re-notice it for the 4,000 foot.” Darrah: I was never asked to come down and pay. I was asked to be pushed to April 16, which I said that I would like to proceed with April 2. I wasn’t asked, I wasn’t specifically said, Joe, Mr. Darrah, would you like to come down and pay to put this in the paper again to speed the process.” Mr. Darrah said that he would have paid “in a heartbeat” if he had been asked. He felt that there had been a big misunderstanding. (JP) said that (JP) and (GL) had spent a great deal of time last Thursday trying to expedite Mr. Darrah’s application so that it could be heard two weeks later (April 16) in case the application could not proceed on April 2. (JP) said that (JP) and (GL) had agreed to suggest advertising for this purpose, but (JP) said that he had been told that Mr. Darrah refused to advertise. (JP) said that he had asked for a law that would allow the planning board to get around the 15-day rule, and no one had offered such a law. (JP) “No one is questioning your honesty. No one is questioning your good intention. No one is doing that. What we are trying to do is find a way that we can satisfy the law. It’s that simple.”

Mr. Darrah again questioned why no new ad was put in the paper. (BM) “Didn’t Jim or Gerard ask you if you wanted to put it in the paper last week? Mr. Darrah: “Not Jim directly, I talked to Jim on the phone, and part of our conversation, it was Gerard, I spoke to Gerard, and a part of my conversation with him said it was costing me a lot of money, and what I really would like to do, I just want to get my footings in the ground because it’s my busy time of season. And I have a lot going on, and that’s all I’m really looking for, is to try to get my footings in the ground and my walls up so I can proceed with electrical, you know, like pipes in the ground. I’m not looking to structurally put the building up. I’m just kind of looking to put my footings and my wall in, and I would be willing to proceed to do whatever I have to do to make you guys happy, to do whatever it takes.” With board secretary Dee Fritz’s permission (JP) read the following passage from and e-mail that Ms. Fritz sent to planning board members:

“Mr. Darrah relates that there is ‘no way in H — that he wants to change the hearing date to the 16th nor pay the additional amount of money.’ He related that he is tired of the ‘in-house fighting between departments’ and feels that he has gotten the run around from everyone. He noted he would just like to proceed and get it done. He related that he has contacted all the abutters and they all agree that this is not an issue.”

(BM) explained that the notice error, of 1500 square feet instead of 5000 square feet, created a serious threat of appeal.

Matt St. George ask whether, if the planning board was not going to accept the application, could the board at least look to see whether the application had other problems that might otherwise be discovered later. (BM) explained that the board had already had a conceptual hearing. “There is no problem with what he is trying to do. The whole problem comes from the fact that the initial application was not for a 5000 square foot building. And we can’t retroactively change that and stay within the State law. I think that if we had the proper noticing of this, we would have probably approved this by now. I would have anyway.”

(JP) “That might be the case, but whether or not there is any problem with his plan or not has not been determined yet. There’s been no, it hasn’t been accepted, we haven’t examined it, so, I mean, you may have looked at it, and you may have no questions, you may be satisfied. But the fact is that it hasn’t been accepted, and there’s been no hearing, and there’s been no evaluation as to whether or not it’s okay. So, I think one of the problems that we’ve been having here is, I can’t understand how it could be otherwise than that Mr. Darrah was led to believe that his approval was essentially going to be automatic.” (BM) “I don’t think he was ever led that.” (BM) clarified that the planning board had raised no objections during the conceptual hearing. (JP) noted that he had seen the plan for the first time at the conceptual hearing and thus had had no chance to prepare and thus could not have objected even if the plan had had problems. (JP) said that the planning board should not say “this plan is fine, we’re “on a technicality, because I think that kind of discussion may have gotten Mr. Darrah into trouble in the first place. He obviously doesn’t understand that the approval can’t be taken for granted.” (BM) “Well, I don’t think that, well, if I indicated that to him, then I’ll retract it. What I was trying to say is that the real problem we have now is whether legally we can proceed to accept the application because of the way it’s noticed. That’s all I was trying to say, and I will stand by my other statements that I personally looked at this quite hard and do not have any difficulty with it as a site plan application. But since we haven’t gotten to that, that’s a parenthetical comment.”

(FH) “When does this 15 days come into place? Fall into place?” (BM) “It’s 15 days from the date of submission that the planning board has to take it up. And at least get it posted for a hearing.” (FH) “The way I count it, we got 16 days from the time this was passed in, the original one. The 18th.” (BM) “But it was noticed as a 1500 square foot building. There’s never been an amended notice.” (FH) “I understand that.” (BM) “That’s the whole problem, Fred.” (FH) “The 30-day appeal would come in on this particular plan.” (FH) discussed the potential for appeal. “I don’t see any problem. If we approve this with some concessions or anything, he’s still got to wait that 30-day appeal, waiting period. But he can gamble and start it. Well, he did. He got his footings in. But he can start by pouring his concrete.” Mr. Darrah: “There’s no footings. Everything’s prepared.” (FH) “I see no reason, it’s his gamble, and I see no reason why we can’t approve this.”

(BM) suggested proceeding with the application as a 1500 square foot building, “which we approve tonight,” then Mr. Darrah would come back on April 16 to do a 5000 square foot building. “That gets him going.” (JP) “I don’t think so.” (BM) “No?” (JP) “Because he’s amended the plan. He’s amended the plan. I mean, going back to 1500 makes matters worse because we’re dropping back from 5000 to 1500, which is yet another huge change.”

(BM) “This is a clerical error that we cannot simply ignore, unfortunately.” (FH) argued that the notice was legal, and changing from 1500 to 5000 could have been part of site plan review. (FH) said that two LGC attorneys agreed with him. Carl Sherblom repeated that the 1,500 was a clerical accident. He noted that the building scaled 4000 square feet.

(JP) “I was just going to ask does anyone have a citation, an RSA that we can rely on that will allow the 15 days to be waived, for any reason, any reason at all. Anyone?” (FH) “You want a waiver written? Or is that what you’re asking?” (JP) “I’m asking for an RSA that would permit the waiver of the 15-day requirement. Anybody in this room who knows is invited to speak.” (FH) “Well, we’ve got a gentleman up in the corner that was on two different sites and they waived, well what? They waived the 15 days. The other one, I guess was in there 15 days, I don’t know, I wasn’t on the board. But that was a hodgepodge too. It cost the Town a lot of money, but they got it, they approved it. Well, I don’t know. I can’t, no, I don’t know what RSA.”

(BM) repeated that the problem was notice error. (JP) stressed that his concern was not whether the planning board was going to get away with doing this.

(FH) repeated that the 15-day notice hadn’t been violated because, as (FH) counted it was 16 days. (JP) said that the amended plan had been filed 14 days ago.

Matt St. George asked for clarification of the 15-day rule. (JP) read from RSA 676:4, I, (b), and clarified separate issues of 15 days for filing and 10 days for notice.

Mr. Darrah, “I would have filed sooner if I have known about filing sooner.” (JP) Your statements are extremely troubling. It is the job of this Town to help every citizen and State law has said this. You should have been helped to follow the proper procedure. It is not our job to do that, because it creates a conflict of interest if I’m judging a plan and helping to fill it out too. It could. That is why the Building Inspector is supposed to help you and if not him, then the Town Administrator. We cannot waive a mandatory State law because you did not get the help that you needed.

Mr. Darrah “I would ask you to pass it and then take my chances.” Board could not agree to this. (BM) explained to him that if he would begin “building” he would be in violation of the Zoning Ordinances and the code enforcement that would result. He explained what could occur if this should happen. Mr. Darrah “Tell me what you would like me to do?”

(TM) asked whether Mr. Darrah could put in his footings at his own risk and return on April 16. “It’s a risk he’s taking.” (JP) explained that the digging for footings was problematic. Development of a tract for nonresidential use requires site plan approval. The trenches for footings are a necessary part of constructing the new building. Development is defined as constructing new features. Trenches are new features. Mr. Darrah may be violating the law already by going ahead with his construction of the building, just by digging the foundation. “If we tell him that it’s okay, you can pour your foundation, probably there’s not going to be any liability here, because the law is here, and because the law is here, he’s on notice that he’s not supposed to be doing it. There’s a case on that too, somebody from Hooksett. But I can’t in good conscience, for many reasons, say, well, go for it and see whether or not there’s a problem. I just, that’s not what I was put here to do.”

(BM) “[inaudible] from what Jim said. What Joe has done is a violation of the zoning ordinance.” (JP) “Well, the site plan review regulations.” (BM) “Because it hasn’t received site plan approval. So that makes it a violation of the building code. And if someone were to make a complaint to the building inspector that you were developing your site without site plan approval, the building inspector would have to deal with it. And that’s all I’m going to say.”

Mr. Darrah: “Gerard, do you recall when I spoke to you, you said if I put my footings in, and if anyone were to call, that you would say to have the Town building inspector to call you on the phone?” (GL) “Yes, I did say that.” Mr. Darrah: “Okay, thank you.”

(BM) advised Mr. Darrah that if he went ahead and if anyone complained, then the building inspector would have to go out and see if he violated the ordinance. Mr. Darrah said that he did not want to go ahead with his footings; he only wanted to do what preparations he could.

(JP) said as follow up to (BM) if Mr. Darrah goes forward with any kind of blessing from the planning board, then the planning board drags code enforcement—the building inspector and the board of selectmen—into the problem.

Jeff Green: “Jeff Green, I’m a land surveyor, and I’m also a member of the Loudon planning board. I have to disagree with the gentleman [JP] here.” Mr. Green stated his opinion that, under State law, the code enforcement officer can only act on a violation if there is a request from a citizen of the town. If there is a violation, there is only one person who can make that complaint. Mr. Green said that the planning board cannot make that complaint. “I understand that there’s a violation in place, but it isn’t, it isn’t, it’s the code enforcement officer who has to make that determination of whether there’s a violation in place before anything can go forward with that.” Mr. Green said that a person accused of a violation could appeal the accusation to “the board of appellants, which is the zoning board.” Mr. Green noted that the appeals could take time and that the Town could not collect fines until the appeals had been exhausted.

(JP) responded to Mr. Green that (JP) had not said that the planning board was involved in code enforcement. The planning board might, however, encourage a violation to which the code enforcement officer would either have to respond or turn a blind eye. Even if the code enforcement officer chooses to turn a blind eye to the violation, the selectmen don’t have to turn a blind eye to it if they don’t want to. “How many blind eyes are we going to turn to something that’s illegal? We’re talking about more than the planning board turning a blind eye to the State’s 15-day requirement. Now we’re talking about suggesting that the code enforcement officer is going to turn a blind eye to a potential violation of the site plan regulations, which, by the way, is not appealed to the zoning board of adjustment, that’s appealed directly to the Superior Court. And then there is the selectmen. So all of these people get involved by saying, well, we can go ahead and we’ll figure it out as we go along. I stand on my analysis that if we were to do what Ted was talking about, we’re going to drag a lot of other people into this other than just this board.”

(FH) questioned whether the initial site preparation of clearing the land and putting in the driveway was a violation? (JP) “Probably.” (FH) “Who complained about that?” (JP) responded that the planning board is not code enforcement. (BM) “It isn’t a violation until the building, the code enforcement officer finds one.” (JP) “I would disagree with that.” (BM) “Well, functionally. Joe has just asked the board what should he do. This is my only opinion. My opinion, Joe, is submitting a site plan application for the size building that you’re showing on the plan.” Mr. Darrah, “I would not have done that if I had not talked to the Chair and asked if I was able to do it and felt that there was no problem to dig. I am not trying to mislead anyone.” (GL) I told you to do it at your own risk. Mr. Darrah acknowledged that (GL) had warned him.

(BM) You can withdraw your application without prejudice. You can submit a new application with the correct information so that it can be posted correctly. (DG) He has a right to withdraw his application before Board makes any decision on this.

After further discussion, (JP) suggest that he not withdraw his application but rather that it be continued and allow time for it to be re-noticed with the correct square footage. This process saves a week relative to withdrawal and resubmission. “Please make sure that what you are proposing is what is going to happen. We can re-notice it for 5,000 sq. ft. in the Concord Monitor, which would be the only way that we can get the ten days. The abutters would have to be re-notified also.” (Kyle noted that Planning Board Secretary is not available on Fridays and that he would take care of this re-noticing via newspaper and abutter notification.) He noted that at the conceptual it was noted that the water impact line was to be eliminated.
Mr. Sherblom noted that this would remain because of the heating boiler.
(BM) This would have to stay. (DG) suggested that he also complete the application in entirety namely Page 2, Nos. 9, 10, 11 and note in any areas N/A which are not applicable. (BM) Make sure everything is either check marked or noted as N/A. (JP) Work very closely with the Building Inspector on this. The Town Hall staff is here to help you.

(GL) This is continued to April 16, 2009 at 7:00 P.M. and will be re-posted in Concord Monitor with correct square footage and abutters notified.

Break 8:42 P.M. Resume at 8:50 P.M.

_____________________________________________________________

MINUTES AS SUBMITTED BY DELORES FRITZ, RECORDING SECRETARY

ITEM 7. New Business
Letter – Clayton Wood – Planning Board Alternate

(FH) Motion to approve Clayton Wood as Planning Board Alternate.
(TM) Second. Carried 6-0.

Clayton Wood (CW) Tonight was an interesting meeting. He noted that he had one comment to make, “You do not do citizens any favor by directing them around the law and telling them they could take the risk.” While on the Board, I will work by the law. He is a victim of the process and not the victim of the law. I am here to learn; that is why I am starting as an Alternate. I will abide by the law and not recommend anyone taking risks. I am not making any accusations, but I am trying to help you. I will follow the law and it should be a simple thing to do. I want to help the residents of the Town.

(GL) The Rules of Procedure need to be changed since we now have an elected Board rather than an appointed Board. (JP) We have a lot of work to do.

ITEM 8. Selectman’s Report – Fred Hast, Selectman Ex Officio

(FH) There is a meeting on April 7th about the Pittsfield Aqueduct and eminent domain in the face of the PUC and Nashua issue still pending.

ITEM 9. Building Inspector Report

Building Inspector reviewed Dan Schroth retail sales and that he is in violation of the Zoning Ordinances for retail sales. He has been given 30 days to respond.

He advised Board of Mr. Schroth’s comment that he will not be attending upcoming Planning Board meetings until some substantial change in procedures takes place.

He also noted to Board that he is working on a handout which can be given to residents regarding how to apply for a conceptual and other reviews by Board for projects they would like to attempt and the a brief description of how process would work. He has just started working on this handout and noted he would appreciate any comments from Board in this regard.

He noted he will be meeting with Amenico in the near future regarding the Site Plan Review and assisting them in working out any problems they may have with it. (GL) We have been patiently waiting for that one.

ITEM 10. Members Concerns

(BM) “I am concerned about Dan Schroth’s decision to not attend Planning Board meetings until some “substantial change in procedures takes place” as we are in compliance. I would suggest that we ask Dan Schroth be asked to attend meetings or resign. The Planning Board can request that the Board of Selectman remove him. BI, “He said procedures. He noted that there was no consistency among the Board members.” (JP) So, he is talking procedural issues. (BM) I would like to know exactly how we are failing. (JP) My feelings are since he is not here to ask, is that he is neglecting his duties. He has an unexplained absence. (TM) suggested he attend and discuss like an adult. (JP) So are we in agreement that he is in neglect of his duties? (BM) He has two unexcused absences – last week and tonight.
(JP) If he goes forward with this boycott, he will be in neglect of duty. I am asking for a vote, non-binding. I would like an official poll. This would be grounds for BOS to remove him. (FH) Before we do that, we should have the Building Inspector call him and let us know what the problem is.
(GL) If he misses one more meeting, he is in neglect of duty. (GL) explained that he would like to ask him once again and that he should contact Chair or Vice Chair and advise of his attendance so that we have enough Alternates. (BM) He did not ask to be excused. He is refusing to do his duty.

(BM) Motion that Kyle Parker contact Dan Schroth and inform him that if he misses a third meeting, he will be in neglect of duty. (DG) Second. Carried 6-0.

(GL) You will note that last week’s Minutes are quite long because of a request by (DS) to have several items verbatim. Board agreed that it is appropriate for some particular statement or comment be verbatim, but if too much is requested, that a copy of tape can be provided to individual instead.

(JP) We need to work on revisions in our Rules of Procedure. The Site Plan Review regulations are difficult to understand and the Zoning Ordinances “have problems.” He suggested that he could provide members of the board with a copy of his petition of revisions of the Zoning Ordinances for them to review. Board members agreed that they would be willing to review this to see if some of it could be “revised” through the Planning Board. (GL) noted that he would like to see the document. “A lot was rejected because of the length of the revisions.” (BM) We could look at those that are key problems such as cluster development, home occupations, accessory uses and frontage. (GL) Cluster is a major one. (BM) also frontage.

(JP) As the principal author, each member could look at it. The PB has never approved or looked at the document. We could have each member look at it and decide why or why not they like it and then figure out what the problem is. We could do this without doing any “creative” work and go on from there and figure out our objections. (GL) suggested that all members review Zoning Ordinances and come prepared next session with four or five to discuss. (BM) We could review it and possibly use as a template. Zoning Ordinances need to be changed at Town Meetings. There are two separate processes. It is more difficult to amend Zoning Ordinances.
(TM) There was so much confusion that people did not want to vote for anything. (FH) Let’s go through the Rules of Procedure and then the Zoning Ordinances as suggested by (BM). (JP) We could find out what the Planning Board does not like about my Petition. I would hope that case laws are adopted as part of the document.

ITEM 11. Public Input

James Theodore: The Board is doing a pretty good job and is being pretty thorough and should continue to do so in the future to protect Town.

ITEM 12. Adjournment

(BM) Motion to adjourn. (DG) Second. Carried 6-0.

Meeting adjourned at 9:27 P.M.

Approved: May 7, 2009

______________________________ _________________________
Gerard Leduc, Chairman Date

II Tapes

Attachment from Jim Pritchard presented to Board on April 16, 2009:

Meeting with Mark Morrill, David Silvia, and Susan Soucie of the NH Department of Transportation on April 8, 2009 at approximately 10:30 AM

I went to the NHDOT to learn their evaluation of the site plan of Joseph Darrah and how the proposal might affect State highway Route 107, on which the Darrah property fronts.

Mr. Darrah has a driveway permit from the DOT. It was originally issued in November 2005 and was most recently amended on September 26, 2008. It does not cover the changes that Mr. Darrah’s site plan proposes. The original driveway permit is different than what he wants to do now because the terrain has changed.

Patrol foreman Tim Landry reports that there are icing problems with runoff in the area already. The construction that Mr. Darrah has already done has already caused a problem. Therefore, a catch basin is needed.

To address the drainage issues, Mr. Darrah should reapply for a new driveway permit and explain how he will resolve the drainage problem. The application must be made before the site plan is approved. The drainage issue will also require Mr. Darrah to apply for a wetlands permit from the NH Department of Environmental Services (DES). A driveway permit will include an excavation permit if excavation is necessary.

What Mr. Darrah has proposed in his site plan is not going to work. (Susan Soucie said of the Darrah plan, “This will not work.”)

Mr. Morrill drew two options that Mr. Darrah might consider. Option 1 is to install a pipe under Route 107 at the mouth of the driveway and drain the water from the catch basin to the other side of the highway. This approach would require a drainage easement from the property owner. Option 2 is to install a pipe along the side of Route 107 to channel the water to the nearby brook.

A “swale” is a shallow ditch, and it can go across a driveway. The driveway will have a swale even if there is a pipe underneath the driveway (option 2).

Jim Pritchard
Member, Pittsfield Planning Board