April 4, 2013 Minutes

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

DATE: Thursday, April 4, 2013

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:00 P.M.

AGENDA ITEM 2: Roll Call

Planning board members present:
Clayton Wood (CW), planning board member and chair;
Pat Heffernan (PH), planning board member and vice-chair;
Jim Pritchard (JP), planning board member and secretary;
Bill Miskoe (BM), planning board member;
Eric Nilsson (EN), selectmen’s ex officio planning board member; and
Peter Dow (PD), alternate planning board member.

Planning board members absent:
Larry Konopka (LK), selectmen’s ex officio alternate planning board member.

Members of the public appearing before the planning board:
Carol Lambert, 83 Governor’s Road, Pittsfield, NH.

“Members of the public appearing before the planning board” includes only members of the public who spoke to the board. It does not include members of the public who were present but who did not speak to the board.

AGENDA ITEM 3: Election of Officers

BM nominated CW for chair.

PH seconded the nomination.

Discussion: None.

Vote to elect CW chair: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

BM nominated PH for vice-chair.

CW seconded the nomination.

Discussion: None.

Vote to elect PH vice-chair: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

PH nominated JP for secretary.

CW seconded the nomination.

Discussion:

CW said that JP had done a good job last year in helping CW with the board’s paperwork.

Vote to elect JP secretary: carried 4 – 0 – 1. (Voting “yes”: JP, EN, PH, and CW. Voting “no”: none. Abstaining: BM.)

CW nominated JP for recording secretary.

PH seconded the nomination.

Discussion:

BM said that a board member has a conflict of interest in writing the board’s minutes. BM said that having a sitting board member recording the meeting can threaten the board’s credibility. BM said that he had consistently opposed having any sitting board member, not just JP, recording what board members say.

PH said that JP does a good job recording and that the board tapes the meetings, so anyone can check the accuracy of the record. PH said that BM’s argument was a perception and had been raised many times but was much ado about nothing.

BM repeated his disagreement.

EN said that JP should not write minutes when JP is disqualified to sit.

BM disagreed and said that JP should write minutes only when JP is disqualified to sit.

EN said that the board itself does review the minutes and that JP does an excellent job.

CW made several points. First, JP puts much time into writing the minutes. Second, JP’s writing the minutes is completely lawful. The town attorney has reviewed the matter. Third, CW could understand how people might be uncomfortable with a board member’s writing minutes. Fourth, CW wanted all concerns expressed now so that the board does not have to address them later. Fifth, most boards do not have a hired secretary; therefore, if JP did not record the meetings, then the chair would have to record them. This task would impair the chair’s efficiency in running the meeting. Sixth, the detail that JP puts into the minutes helps CW.

EN said that the matter is mostly just perception. EN does not object to the minutes as JP writes them.

BM clarified that he objects to JP’s writing the minutes, not to JP’s doing general secretarial work for the board. BM objected to “the ability of the record keeper to interject editorial decision-making into it, which I [BM] do see happening. It does not benefit this board.”

CW asked BM to bring these examples to the board when BM sees them. The board discusses the minutes at every meeting.

BM said that the board could have “an independent recorder.” BM said that the board had had them for years.

CW said that JP is saving the town money and that the board probably could not hire someone to write minutes of the quality and detail that JP is writing. Anyone who finds bias in the minutes should bring the bias to the board. The tapes of the meeting are available for checking the minutes.

Vote to elect JP recording secretary: carried 4 – 1 – 0. (Voting “yes”: JP, EN, PH, and CW. Voting “no”: BM. Abstaining: none.)

CW nominated PD for alternate planning board member for a one-year term.

PH seconded the nomination.

Discussion:

CW said that PD had put much time into the AHG Properties Stagecoach Station case and that his continued presence on the board to finish Stagecoach Station would be very helpful.

Vote to reappoint PD alternate planning board member for a one-year term: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 4: Agenda Review

CW said that the board’s next meeting will be on May 2, 2013, and will have a public hearing on the Bailey Park matter (a conservation restriction on the required conservation area—see subdivision regulations section 5, K, 4). CW said that the notice is written and will be sent soon to the owners and abutters and will be advertised in the local newspaper (Suncook Valley Sun).

CW said that the NH Office of Energy and Planning will hold a planning and zoning conference at the Radisson Hotel in Manchester on Saturday, May 11, 2013.

JP said that he will want to go. Other board members did not know whether they would have time to attend.

CW said that the Central New Hampshire Regional Planning Commission (“CNHRPC”) will meet on Tuesday, April 16, 2013, at 6:00 P.M. to discuss a regional master plan. CW said that someone from the planning board should attend.

JP said that he expected to attend.

CW referred to the contact information for board members and asked board members to correct any incorrect information.

The board discussed making personal contact information public and noted that members of the public can contact board members through the town hall.

AGENDA ITEM 5: Approval of Minutes of the March 21, 2013 Meeting

CW moved to approve the minutes of March 21, 2013, as written in draft.

EN seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

Vote to approve the minutes of March 21, 2013, as written in draft: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 6: Review and Comment per RSA 674:41 for the Request by AHG that the Board of Selectmen Authorize the Issuance of Building Permits on Thompson Road, a Class VI Road – Stagecoach Condominium Cluster Subdivision (Map R44, Lot 1)

JP recused himself because his mother is an abutter to the Stagecoach Station project. JP submitted to the board a letter commenting on the material that CW had distributed to the board yesterday.

PD sat in JP’s place.

CW said that he had searched the Internet for information to guide the planning board in preparing comment for the board of selectmen. CW had found little such information. This dearth of information may be because the planning board’s comment is only advisory. Pembroke had some interesting information to guide the planning board. New Durham has an interesting class VI highway-development policy.

CW said that the planning board’s function is to advise the board of selectmen, so the planning board should express all of the planning board’s concerns. RSA 674:41, I, (c), (1), states no guidelines for deciding whether to authorize the issuance of building permits, so part of the planning board’s advice should be that the board of selectmen first adopt a policy on which to base a decision and second decide AHG’s request on the basis of that policy. Making a decision without first having a policy as a basis invites lawsuits. Many policies say that the deciding authority can consider any factor that the authority thinks relevant, but, if the policy also has many specific conditions, then the intent of the policy is clear. The board of selectmen should seek guidance from not just the planning board but also other town departments.

CW said that the planning board should tell the board of selectmen where the planning board is in the process of reviewing Stagecoach Station.

CW referred to the planning board’s letter to the board of selectmen on March 4, 2013, listing matters on which AHG needs decisions from the board of selectmen. These matters relate to AHG’s plans to improve Thompson Road, which is the planning board’s biggest concern now. Of the Thompson Road concerns, the biggest concern is AHG’s plan to move the stone wall at the edge of Kathy Bleckmann’s field. The board of selectmen cannot approve the road-improvement plan before AHG resolves the problem with moving the Bleckmann stone wall. The whole road-improvement plan, including road width and drainage, depends on moving the Bleckmann stone wall.

CW said that the planning board and the board of selectmen must develop a class VI highway-development policy as a matter separate from Stagecoach Station. The town’s recent adoption of a class V frontage requirement for subdivision will not eliminate the need for a policy when a person wants to build on an existing lot. RSA 674:41, I, (c), (1), applies to both building and subdivision.

BM said that the planning board should advise the board of selectmen to defer its decision until after AHG acts on the two letters that, in agenda item 7, the planning board will consider sending to AHG. If AHG has to redesign around the Bleckmann stone wall without moving it, then AHG may have to seek new approvals from the NH DOT.

CW said that the planning board can recommend that the board of selectmen defer its decision until after AHG acts on the two letters. The planning board can also recommend that the board of selectmen begin working on a class VI highway-development policy.

CW referred to A Hard Road to Travel, 2004 edition, pages 147, 148, 149: Building along Class VI Highways: RSA 674:41, I(c). Page 148 has a list of things that the town should require. RSA 674:41, I, (c), does not require everything in this list, but everything in the list makes sense. The class VI highway-development policy has to cover a wide range of situations ranging from a single dwelling unit with minor roadwork to Stagecoach Station doing major improvements and subsequent maintenance. Under RSA 674:41, I, (c), (2), the town cannot be liable for anything. The selectmen’s minutes have not discussed any of these issues.

PD asked for clarification that the planning board has not given final subdivision approval to Stagecoach Station.

CW said that the planning board has not given final subdivision approval.

PD asked how the board of selectmen could issue building permits to an unapproved subdivision.

CW explained that the vote under RSA 674:41, I, (c), (1), is just to authorize building permits to be issued, not to issue building permits in fact. CW explained that AHG should have resolved the RSA 674:41, I, (c), issues long ago. But the board of selectmen has waited for the planning board to finish its review. This delay pressures the board of selectmen to vote “yes” under RSA 674:41, I, (c), (1).

PD asked whether expecting the board of selectmen to develop a class VI highway-development policy before voting on AHG’s request is realistic.

CW said that the board of selectmen will have to decide PD’s question, but deciding AHG’s request without having a policy on which to base the decision is risky. RSA 674:41, I, (c), (1), has no guidelines. Whether the board of selectmen votes “yes” or “no,” the dissatisfied people will ask what was the basis of the board of selectmen’s decision.

CW said that the policy will need to address other issues, for example, whether or when a developer can upgrade a class VI highway to class V. The New Durham policy states near its beginning that the board of selectmen understands that allowing development on class VI highways may lead to petitions to lay out the highway as class V. If the policy requires improvement to a “class V standard,” then this requirement may invite an expectation that the town will take responsibility for the highway. Some towns require only an emergency-lane standard to avoid such an expectation. Pittsfield also needs a policy relating to roads dedicated to public use, such as in the West Meadow development. The town has no policy defining the level of development occupancy that triggers the town to accept the road.

PD said that the town’s adoption of a class V frontage regulation for subdivision should simplify the development of a class VI highway-development policy.

CW agreed with BM’s earlier comment that the town should not ask AHG to go through the process of RSA 674:41, I, (c), (1), before AHG has resolved the problem of moving the Bleckmann stone wall, but CW thought that the town should work on a class VI highway-development policy in the meantime.

BM said that AHG is not only seeking authorization for the issuance of building permits; AHG is also seeking permission to do major road construction on Thompson Road. The planning board should tell the board of selectmen that, because of the stone wall problem, AHG’s current plan is probably not what AHG will build and that the board of selectmen should not give AHG permission to work on Thompson Road before the planning board approves the Thompson Road plan. The planning board’s current agenda item (item 6) does not address AHG’s need for permission under RSA 236:9 to work on Thompson Road.

EN acknowledged BM’s concern.

CW said that the planning board’s letter of March 4, 2013, is comprehensive and lists issues that the class VI highway-development policy should address.

EN said that he liked the New Durham policy.

CW agreed and said that the board had received many other sample policies from the CNHRPC. CW said that Pittsfield’s policy should make clear that AHG’s reference to “a class 5 standard” (zoning board of adjustment minutes, October 12, 2006) does not suggest that the town will become responsible for maintaining Thompson Road.

CW said that the planning board should at least recommend to the board of selectmen that the selectmen develop a class VI highway-development policy before the selectmen vote on AHG’s request.

BM asked whether the planning board could vote to adopt the New Durham policy?

CW said that the New Durham policy is for the board of selectmen’s vote under RSA 674:41, I, (c), (1).

BM said that the planning board and the board of selectmen should have the same policy.

CW agreed.

BM asked whether the planning board could recommend that the board of selectmen adopt the New Durham policy.

PD said that the planning board should separate its recommendations on AHG from its recommendations on a class VI highway-development policy. PD said that JP should not be disqualified from recommending a class VI highway-development policy.

EN said that he understands that the planning board recommends that the board of selectmen develop a class VI highway-development policy. EN will present the Pembroke policy (guiding the planning board) and the New Durham policy (guiding the board of selectmen) to the board of selectmen and ask the board of selectmen to make whatever changes the board of selectmen thinks appropriate. Then EN will return to the planning board for its suggested changes. Finally, EN will return to the board of selectmen for it to vote on the final policy.

CW summarized the three issues that he had discussed so far. First, the planning board will recommend that the board of selectmen work on developing a class VI highway-development policy. Second, CW likes the letter that the planning board sent to the board of selectmen on March 4, 2013, addressing the board of selectmen’s responsibilities in relation to Thompson Road. Third, the planning board could vote to recommend that the board of selectmen defer a vote under RSA 674:41, I, (c), (1), until AHG has resolved the problems of the two letters that the planning board will discuss in agenda item 7.

The board agreed that it would suspend agenda item 6 until after the board had done agenda item 7.

CW called a recess at 7:53 PM.

The meeting resumed at 7:59 PM.

AGENDA ITEM 7: Letters to AHG Regarding Changes Required Prior to for Compliance Hearing for the Conditional Approval for the Stagecoach Condominium Cluster Subdivision (Map R44, Lot 1)

CW said that the planning board had asked CW to ask the NH Local Government Center (“LGC”) for guidance in writing two letters to AHG: one letter saying that AHG must remove from the Stagecoach Station plat the plan to relocate the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field, and one letter saying that AHG must remove “as amended from time to time” from the Stagecoach Station conservation restriction. LGC declined to comment on these letters because the letters are so specific to the case. LGC’s guidance is intended to be general. Consequently, CW used the board’s minutes to list the board’s concerns and reasons in relation to the stone wall movement and the “as amended from time to time” language in the conservation restriction.

CW said that different board members had said several times that the board has the authority to correct errors of law. CW based the letter on this idea that the planning board can correct errors of law before giving final approval to a conditionally approved plat.

Deliberation and vote on sending the stone wall letter:

CW reviewed some of the material that he had drawn from the minutes and used in the letter objecting to the stone wall movement. The board had discussed and rejected the surveyor’s explanation. The board had discussed and rejected the town attorney’s advice that moving the stone wall is a private matter between AHG and Kathy Bleckmann. BM had asked that the letter include case law and statutory support. CW used A Hard Road to Travel, 2004 edition, pages 45, 46, and 47 (Factors for Granting or Denying Layout Petition, Layout Subject to Conditions, and Public v. Private Benefit) and pages 49 and 50 (Location and Width of Highways) to find the case law and statutory support. CW has concluded from this research that even the board of selectmen cannot approve moving the stone wall because the board of selectmen cannot show a public benefit from the stone wall movement. No one is using Thompson Road. As a result of all of these considerations, the planning board now wants AHG to remove the stone wall movement because conditionally approving the plat showing the stone wall movement was an error of law.

EN said that the town attorney had said that the stone wall movement is a civil matter. Even if the town approves the stone wall movement, AHG will not be able to build the road if AHG cannot resolve the civil matter.

CW said that AHG does not own the road or abut the land where AHG proposes to move the stone wall.

EN said that, if the stone wall is on AHG’s plat but not on AHG’s land, then AHG cannot touch the stone wall unless the people who own the wall agree.

BM said that moving the stone wall would require Kathy Bleckmann’s agreement, but AHG cannot ask for Kathy Bleckmann’s agreement because AHG does not own on the other side of the stone wall.

EN said that, in that case, AHG will not be able to build the road.

CW said that AHG attorney Andrew Sullivan had said that Kathy Bleckmann has no rights to the stone wall. (Planning board minutes, December 6, 2012.) Andrew Sullivan based his conclusion on the surveyor Jacques Belanger’s recommendation. CW said that Jacques Belanger is mistaken. Widening the highway will take someone’s property, and only the selectmen can take property by eminent domain for a town highway. Under RSA 231:8, there must be an occasion to take the property. An occasion includes a public interest, such as correcting public danger or otherwise benefiting the public. The planning board will not endorse the plat showing the stone wall movement. Conditionally approving the plat showing the stone wall movement was an error of law. The minutes of 2007 do not discuss the stone wall movement, and much of the other road design appeared in 2008. The board of selectmen should get the highway agent’s (George Bachelder’s) opinion. CW said that he had talked to George Bachelder, and George Bachelder thought that AHG cannot move the stone wall. The board of selectmen needs advice from the highway agent, the police department, and the fire department.

BM said that he liked the letter and moved the board to send CW’s draft stone wall letter to AHG as written.

PD seconded the motion.

Discussion:

CW asked whether AHG could appeal the board’s vote on the letter. CW said that he thought that AHG could appeal the vote.

BM thought that only decisions approving or denying an application are appealable. (RSA 677:15.)

JP said that he did not want to participate in the board’s discussion but that the board should know whether AHG could appeal the board’s vote on the letter. JP thought that AHG could appeal the vote. (DHB v. Pembroke, 152 N.H. 314, 876 A.2d 206 (2005).)

BM said that the board must send the letter because the board will not agree to AHG’s moving the stone wall.

CW said that the case law supports the board’s previous discussions. The stone walls are the monuments defining the highway boundaries.

EN asked whether any lawyer had reviewed the letter.

CW said no. CW said that he had sought LGC’s review, but LGC declined.

EN asked why the planning board is not using the town attorney when the board of selectmen has given the planning board “full use” of the town attorney? The planning board must protect the town.

BM said that some of the town attorney’s advice has been less than helpful.

EN said that he will vote “no” to the letter if the planning board does not have a lawyer review it.

BM said that the town attorney had said that the Bleckmann stone wall movement is a private matter. According to A Hard Road to Travel, 2004 edition, and the supporting case law and statute, the stone wall movement is not a private matter.

EN repeated that he will vote against sending the letter if the board does not have a lawyer review it.

PD asked why the draft letter left its date blank.

CW said that he would add a date once the board voted.

PH said that he was standing next to the town attorney (at the selectmen’s meeting of January 15, 2013) when she said that the stone wall movement was a “personal matter” between AHG and Kathy Bleckmann. How can the matter be personal when AHG does not own the road?

BM agreed with PH.

CW said that the town attorney has cited no law supporting her position.

PH said that the town attorney’s failure to cite supporting law undermines her credibility. The stone wall movement is anything but personal; the matter is between Bleckmann and the town. AHG has no say. But the town attorney thinks otherwise, so she will certainly object to the letter. PH thought that the letter is correct and that the planning board should send it.

EN said that the board is asking AHG to remove the stone wall movement, which has nothing to do with whether the legal issue is civil or otherwise.

PH said that, even if the stone wall movement is a civil matter between AHG and Kathy Bleckmann, the board still erred in 2007 by approving the movement. AHG cannot move the stone wall in any case.

EN repeated that he wanted legal review to protect both the town and the individual board members. EN said that he would object to the town attorney’s advice if it did not sound correct to him. The town attorney might highlight specific issues to consider.

BM said that the board is addressing only one issue: “The board now thinks that that conditional approval to relocate the stone wall was an error of law, which the board has the authority to correct.” (Draft letter on the stone wall movement.) All of the legal materials that CW has collected support this conclusion.

EN said that board members are not lawyers and thus may not be qualified to decide whether the board has made an error of law.

CW said that he had already talked to the town attorney several times about all of these issues. She has dismissed all of these issues and maintains that the stone wall movement is a civil matter. The town already has received her opinion several times. The town attorney disagrees with this letter. But board members are the elected officials and, as such, must make the final decision.

EN asked the board to get another lawyer.

CW said that he would not oppose getting another lawyer, but getting another lawyer would be time consuming.

EN said that he will ask the board of selectmen about another lawyer at the next selectmen’s meeting.

PD said that he would support legal advice from a different source because the board already knows what Laura Spector-Morgan thinks.

BM said that he is reluctant to delay another month and that he wants to get this information to AHG.

PH agreed with BM. It is time for the board to act.

CW agreed with PH and BM. Another month will bring this review to a year. The board could send the letter and consider finding another lawyer. Board members must be responsible as the elected officials. The board has discussed the issues thoroughly and is convinced that its position is correct. The letter is an accurate and well-supported statement of the board’s deliberations at past meetings. AHG has had the chance to address these concerns, but AHG been inconsistent and has said that Kathy Bleckmann has no rights. CW recommended sending the letter.

BM said that AHG attorney Andrew Sullivan or AHG engineer Jennifer McCourt will send the board a letter before AHG sues the board.

Vote that the board will send AHG a letter dated April 4, 2013, saying that AHG must remove from the Stagecoach Station plat the plan to relocate the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field: carried 4 – 1 – 0. (Voting “yes”: PD, PH, BM, and CW. Voting “no”: EN. Abstaining: none.)

Deliberation and vote on removing “as amended from time to time” from the conservation restriction:

CW said that the conservation restriction containing “as amended from time to time” had been part of the special exception in 2006 and part of the planning board’s conditional approval in 2007.

CW said that AHG had given two different explanations for “as amended from time to time.” One reason that AHG had given for “as amended from time to time” is to allow AHG to adjust the locations and dimensions of the unit footprints. CW cited the condominium declaration sections 3.4.2 and 3.4.4, which say that the locations and dimensions of the building footprints are as specified on the plan. CW cited RSA 356-B:20, II, which says, “There shall also be recorded, simultaneously with the declaration, floor plans of every structure which contains or constitutes all or part of any unit or units…” CW cited subdivision regulations section 5, K, 4, (section 5, I, 4, in 2007) which requires a “permanent” conservation restriction. In light of the preceding legal considerations, the planning board wants AHG to remove “as amended from time to time” and to provide the locations and dimensions of the unit footprints.

CW said that AHG’s second reason for “as amended from time to time” came from AHG attorney Andrew Sullivan’s testimony on December 6, 2012. At the December 6, 2012, meeting CW asked Andrew Sullivan four times why AHG needs “as amended from time to time,” and Andrew Sullivan testified that the reason was to build in the open space. Andrew Sullivan said nothing about unit footprints.

CW referred to the e-mail exchange between Andrew Sullivan and town attorney Laura Spector-Morgan on August 13 and 14, 2012. AHG changed the conservation restriction somewhat, but “as amended from time to time” remained in it.

CW said that the board had objected to “as amended from time to time” more than once.

CW said that AHG’s explanation to revise the plat with a new footprint every time AHG sells a house makes no sense.

BM moved the board to send CW’s draft conservation restriction letter to AHG as written except dated April 4, 2013.

PH seconded the motion.

Discussion:

EN said that he objected to the conservation restriction letter for the same reason that he objected to the stone wall letter.

PD said that the letter says that the board voted that AHG must remove “as amended from time to time.” PD said that the board should vote this matter separately from voting the letter. The board agreed.

BM withdrew his previous motion on the conservation restriction letter and then moved the board to vote that AHG must remove “as amended from time to time” from the Stagecoach Station conservation restriction.

PH seconded the motion.

Discussion: No further discussion.

Vote that AHG must remove “as amended from time to time” from the Stagecoach Station conservation restriction: carried 4 – 0 – 1. (Voting “yes”: PD, PH, BM, and CW. Voting “no”: none. Abstaining: EN.)

Deliberation and vote on sending the conservation restriction letter:

BM moved the board to send CW’s draft conservation restriction letter to AHG as written except dated April 4, 2013.

CW seconded the motion.

Discussion: No further discussion.

Vote that the board will send AHG a letter dated April 4, 2013, saying (1) that AHG must remove “as amended from time to time” from the Stagecoach Station conservation restriction and (2) that AHG must add to the Stagecoach Station plat the locations and dimensions of the unit footprints: carried 4 – 1 – 0. (Voting “yes”: PD, PH, BM, and CW. Voting “no”: EN. Abstaining: none.)

Deliberation and vote on removing the stone wall movement from the Stagecoach Station plat:

BM moved the board to vote that AHG must remove from the Stagecoach Station plat the plan to relocate the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field.

PD seconded the motion.

Discussion: No further discussion.

Vote that AHG must remove from the Stagecoach Station plat the plan to relocate the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field: carried 4 – 0 – 1. (Voting “yes”: PD, PH, BM, and CW. Voting “no”: none. Abstaining: EN.)

BM said that the board would have to send AHG a letter stating the planning board’s bonding and escrow requirements.

CW suggested that BM work on a draft letter for the board’s May 2, 2013, meeting. CW said that the bonding requirements would have to be the subject of a public hearing.

BM agreed to draft a letter.

BM discussed the issue of drainage from Stagecoach Station onto Sargent land via the state culvert under NH Route 107. Board members thought that the Sargent’s grievance, if any, is between the Sargents and the State of NH because the state will be responsible for the water if the state allows AHG to put the water into the state culvert. BM said that another way of looking at the matter is that AHG is responsible for changing the flow through the culvert.

AGENDA ITEM 6 resumed: Review and Comment per RSA 674:41 for the Request by AHG that the Board of Selectmen Authorize the Issuance of Building Permits on Thompson Road, a Class VI Road – Stagecoach Condominium Cluster Subdivision (Map R44, Lot 1)

CW and BM said that the planning board should recommend that the board of selectmen defer a vote under RSA 674:41, I, (c), (1), until AHG resolved the issues stated in the planning board’s two letters to AHG. BM said that the board of selectmen will need to know what AHG will actually build.

The board consensus agreed.

AGENDA ITEM 8: Selectman’s Report – Eric Nilsson, Selectman Ex Officio

EN said that, at the last selectmen’s meeting, EN had asked the board of selectmen to defer the vote under RSA 674:41, I, (c), (1), and had given the selectmen general feedback on planning board issues.

AGENDA ITEM 9: Members’ Concerns

JP said that PD could remain seated with the board because JP has no member’s concern to state.

PD asked for clarification that AHG needs a vote from the board of selectmen under RSA 674:41, I, (c), (1), before the planning board can give Stagecoach Station final subdivision approval.

CW said yes.

AGENDA ITEM 10: Public Input

Carol Lambert said that LK had said that he had signed the NH DOT driveway permit for AHG on town attorney Laura Spector-Morgan’s advice that the driveway permit was acceptable to sign and that the selectmen had already voted “yes” under RSA 674:41, I, (c), (1). Obviously, the selectmen had not already voted “yes” under RSA 674:41, I, (c), (1). Last July, Laura Spector-Morgan advised the planning board that AHG’s application was not abandoned, and that advice was wrong. Carol Lambert referred to the e-mail exchange between AHG attorney Andrew Sullivan and town attorney Laura Spector-Morgan of August 13 and 14, 2012, saying that AHG wants to leave a back door open to develop the conservation area. Laura Spector-Morgan said that amendments were not permissible, and then she said that the “as amended from time to time” language was acceptable.

EN acknowledged Carol Lambert’s concerns but thought that the planning board needs some legal advice.

Carol Lambert said that Durham is thinking about replacing Laura Spector-Morgan’s firm, Mitchell Municipal, as Durham’s town attorney. Laura Spector-Morgan takes calls from AHG attorney Andrew Sullivan, but Laura Spector-Morgan refused to take a call from Carol Lambert’s attorney, Scott Hogan.

JP, speaking from the audience, said that he could add nothing to what people have already said about the town attorney, except that using any other lawyer in Laura Spector-Morgan’s firm (Mitchell Municipal) is the same as using Laura Spector-Morgan herself.

JP said that most of the board’s discussions were impressive. JP asked the board to consider his letter because JP thought that the board’s sample class VI highway-development policies do not apply to Stagecoach Station. All of the board’s sample class VI highway-development policies apply to building on existing lots. AHG is not asking to build on an existing lot; AHG is asking for subdivision approval. A Hard Road to Travel, 2004 edition, is inadequate in this matter; it does not discuss subdivision on class VI highways. New Hampshire Practice—New Hampshire’s premier treatise on land-use law—does discuss subdivision on class VI highways and strongly recommends against it. New Hampshire Practice explains that subdivision differs substantially from building on an existing lot because “subdivision on that same lot is a commercial activity which will definitely increase the demand for services. (Blevens v. Manchester, 103 N.H. 284, 170 A.2d 121 (1961).) Few of the equitable arguments in support of an individual who has paid taxes on an existing lot for a number of years and simply wants to construct a single-family home can be mustered by an individual wishing to subdivide.” (New Hampshire Practice, third edition, page 414.) AHG cannot argue any tax equity such as New Hampshire Practice describes for building on an existing lot, because the Stagecoach Station property is and always has been taxed at current use.

JP referred to his letter’s discussion of ballot article 3, which the town meeting just adopted to prohibit subdivision on class VI highways and private roads. JP’s letter says that the town cannot enforce this new zoning regulation per se against Stagecoach Station, but the planning board and the board of selectmen can respect the policy that the regulation created. (See the town attorney’s e-mail of November 2, 2012, saying that the selectmen’s vote under RSA 674:41, I, (c), (1), is a matter of policy.)

JP said that PD was correct in saying that the town’s adoption of a class V frontage definition will simplify Pittsfield’s task of developing a class VI highway-development policy, because Pittsfield’s policy will become like other town’s policies in covering building but excluding subdivision.

BM asked what does AHG’s 2006 special exception say about AHG’s assumption that she should get a favorable vote under RSA 674:41, I, (c), (1), to enable subdivision approval.

JP said that the special exception says nothing about what AHG can assume about a vote under RSA 674:41, I, (c), (1). Several arguments defeat any such assumption. First, 10 years ago (on June 5, 2003), when AHG created the back lot where AHG now proposes Stagecoach Station, BM was on the planning board, and then-planning board chair Scott Ward warned AHG’s representative Forrest Sell that, if AHG cut off the Governor’s Road frontage, then AHG might find the back lot landlocked. Forrest Sell said that he was not worried about such landlocking because AHG had no plans for the back lot.

BM agreed.

JP continued. Second, as the planning board has discussed many times, RSA 674:41, I, (c), (1), denies any actual right to do anything, build or subdivide, until the board of selectmen votes “yes” under RSA 674:41, I, (c), (1). AHG has delayed 10 years in seeking this approval, and AHG has done so because, as CW said earlier, delaying the decision until after the planning board has approved much engineering pressures the selectmen to say “yes.” AHG proceeded with these development plans knowing from Scott Ward’s warning that AHG was proceeding at her own risk. Third, development-approval rights do not vest until the developer invests money in actual construction on the ground. (Grandfathered—The Law of Nonconforming Uses and Vested Rights (2009 edition), H. Bernard Waugh, page 15.)

BM asked whether the planning board had erred as a matter of law in conditionally approving Stagecoach Station in 2007 without requiring the board of selectmen’s approval under RSA 674:41, I, (c), (1).

JP said technically yes but practically no because the approval under RSA 674:41, I, (c), (1), just becomes another condition of subdivision approval.

CW agreed with JP. The planning board erred in 2007.

JP stressed that AHG consciously proceeded at her own risk and decided to wait on RSA 674:41, I, (c), (1), until the frontage question was before this year’s town meeting. The town meeting declared a policy of no subdivision on class VI highways or private roads. The regulation clearly exempts building on class VI highways and private roads. Now the board of selectmen must decide whether to respect or reject the town meeting’s policy. The selectmen can vote either way. JP would respect the town meeting’s policy if JP were a selectman. The selectmen’s decision to apply for the driveway permit on AHG’s behalf is probably what persuaded the town to vote for the class V frontage regulation.

BM asked whether a “no” vote under RSA 674:41, I, (c), (1), would be a retroactive application of a new zoning law.

JP said no, JP is not talking about applying a new zoning regulation per se. The board of selectmen can vote either “yes” or “no.” As Laura Spector-Morgan said in her e-mail on November 2, 2012, the board of selectmen’s vote is a matter of policy, not a question of satisfying the zoning ordinance. In saying “no,” the selectmen are free to listen to the town meeting.

CW said that PD was correct in saying that the town’s adoption of the class V frontage regulation will simplify the development of a class VI highway-development policy.

JP thanked PD for seeking reappointment to the board. PD has gained much good experience and has many very helpful insights.

BM asked what would happen if the board of selectmen denied subdivision approval under RSA 674:41, I, (c), (1).

CW said that he had read several cases citing RSA 674:41, all decided in favor of the town. “[RSA] 674:41 is not one you want to sue on.”

JP cited Turco v. Barnstead, 136 N.H. 256, 615 A.2d 1237 (1992), as an example upholding the town in denying subdivision approval under RSA 674:41, I, (c), (1).

JP said that AHG’s Developer Improvement Agreement talks about compliance with the site plan review regulations. The agreement should also agree to comply with the subdivision regulations.

AGENDA ITEM 11: Adjournment

PD left the board, and JP returned to the board.

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of April 4, 2013: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of April 4, 2013, is adjourned at 9:10 P.M.

Minutes approved: April 18, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on April 6, 2013, from notes that I made during the planning board meeting on April 4, 2013, and from copies of the two Town tapes that Chairman Clayton Wood made on April 5, 2013.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.