August 1, 2013 Minutes

These minutes were posted by the Planning.

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

DATE: Thursday, August 1, 2013

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:03 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; and
Gerard LeDuc (GL), selectmen’s ex officio alternate planning board member.

Planning board members absent:
Eric Nilsson (EN), selectmen’s ex officio planning board member, and
Peter Dow (PD), alternate planning board member.

Members of the public appearing before the planning board: None.

“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: Agenda Review

CW had no changes to make to the agenda. CW reminded the board that it had given notice of the August 15, 2013, meeting to consider revoking AHG Properties’ April 19, 2007, conditional approval of Stagecoach Station.

AGENDA ITEM 4: Approval of Minutes of the July 10, 2013 Meeting

BM moved to approve the minutes of July 10, 2013, as written in draft.

PH seconded the motion.

Discussion:

JP asked for the following changes:

Agenda item 6, page 9: change “the case law interesting” to “the case law is interesting”.
Agenda item 6, page 9: change “Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006) as” to “Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006), as”.
Agenda item 6, page 13: change “not to let abutters speak” to “not to let abutters speak during the revocation proceedings”.
Agenda item 9, page 16: change “the board is giving AHG” to “the planning board is giving AHG”.
Agenda item 9, page 16: change “The board is being very generous with AHG” to “The planning board is being very generous to AHG”.

Vote to approve the minutes of July 10, 2013, with the changes that JP requested: carried 4 – 1 – 0. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: GL. Abstaining: none.)

CW asked GL why GL voted against the minutes.

GL said that he voted against the minutes because they did not include Carol Lambert’s comment during public input that the selectmen are “cowards.”

JP said that he would have liked to have known about GL’s concern before the board voted so that JP could have reviewed the tape.

BM asked whether, as a point of order, a board member who did not sit for a particular meeting can vote on the minutes of that meeting.

CW and JP said that GL can vote on the minutes.

AGENDA ITEM 5: Appointment on July 23 with the Board of Selectmen on the Planning Board’s Review and Comment Regarding the BOS action on the Building on a Class VI Road per RSA 674:41, I(c)(1) for the Stagecoach Condominium Cluster Subdivision (Map R44, Lot 1)

CW reviewed his appointment with the board of selectmen on July 23, 2013. At the planning board meeting of July 10, 2013, EN had raised some issues of confusion regarding the process of RSA 674:41, I, (c), (1). Because of that confusion, CW had made the appointment with the board of selectmen on July 23, 2013. CW had wanted to focus on three matters:
1. the need for a general class VI highway-development policy on which to base a vote under RSA 674:41, I, (c), (1);
2. the planning board’s concerns regarding AHG’s application in particular and how the board of selectmen could help the planning board in respect to those concerns; and
3. the fact that approval under RSA 674:41, I, (c), (1), is a condition precedent to the planning board’s final approval of Stagecoach Station.

CW said that the board of selectmen had agreed to begin work on a general class VI highway-development policy in September 2013.

CW said that the board of selectmen wants to defer action on Stagecoach Station until after the planning board decides the revocation matter on August 15, 2013.

CW said that the board of selectmen appears still not to understand Thompson Road’s issues of concern. In respect to the stone wall, the issue is not whether the town owns the stone wall or whether Kathy Bleckmann owns the stone wall; the issue is that AHG clearly does not own the stone wall. Because the town owns the right-of-way, the town must be involved in deciding whether to permit AHG to move the stone wall. If the town does permit AHG to move the stone wall, then the town must be clear on its reason to permit AHG to move the stone wall. If the movement benefits only a private party, then the town cannot permit AHG to move the stone wall. The major treatises (New Hampshire Practice and A Hard Road to Travel, 2004 edition) make clear that taking property for a highway must be for a public interest. (RSA 231:8.)

CW said that he had asked the selectmen to seek guidance from highway agent George Bachelder in evaluating AHG’s plans to improve Thompson Road. CW said that the board of selectmen did not understand CW’s request, so CW explained in a letter of July 25, 2013, to the board of selectmen.

CW said that the board of selectmen still does not agree with the planning board that approval under RSA 674:41, I, (c), (1), is, in fact, a condition precedent to final subdivision-approval. The board of selectmen thinks that the planning board can give final subdivision-approval when the board of selectmen has not given approval under RSA 674:41, I, (c), (1).

BM referred to his concern that he expressed at the July 10, 2013, meeting of the planning board. The board of selectmen does not know what it is actually approving because the planning board might require substantive changes to AHG’s plan after the board of selectmen acts under RSA 674:41, I, (c), (1).

CW said that the case law is clear: the planning board cannot give final approval until all conditions precedent are fulfilled. (Sklar Realty v. Merrimack and Agway, 125 N.H. 321, 480 A.2d 149 (1984); Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006).) AHG is asking for approval of buildable lots, and the lots are not buildable without approval under RSA 674:41, I, (c), (1). Approval under RSA 674:41, I, (c), (1), is a condition precedent to final subdivision-approval. (Turco v. Barnstead, 136 N.H. 256, 615 A.2d 1237 (1992).) Cluster subdivisions have standard conditions precedent, such as a conservation restriction and bonding for completion. In addition, AHG must show permission to move the stone wall. Because AHG does not even abut the stone wall, AHG has no say in whether the stone wall can be moved.

BM said that AHG’s petition to the board of selectmen has two parts: (1) reconstruction of the town highway (under RSA 236:9) and (2) authorization to issue building permits under RSA 674:41, I, (c), (1). (Letter of AHG attorney Andrew Sullivan of February 28, 2013, to the board of selectmen.) The selectmen are saying that they do not know what the planning board will finally approve. Could the planning board ask the board of selectmen to give conditional approval under RSA 674:41, I, (c), (1), on condition that the approval be valid for only the application before the planning board now?

CW recommended against such a conditional approval. The planning board has no approving authority under RSA 674:41, I, (c), (1); the planning board can only advise. CW does not know the basis of the board of selectmen’s thinking that the planning board should give final approval before the board of selectmen votes under RSA 674:41, I, (c), (1). Furthermore, the case law is that RSA 674:41 applies with equal force to building permits and subdivision permits. (Turco v. Barnstead, 136 N.H. 256, 615 A.2d 1237 (1992).) AHG must have approval under RSA 674:41, I, (c), (1), before the planning board gives final approval, because AHG is requesting buildable lots.

JP agreed with CW’s discussion of conditions precedent. In respect to BM’s concern, JP said that substantive changes to AHG’s plan are not permissible because, according to Sklar Realty v. Merrimack and Agway, 125 N.H. 321, 480 A.2d 149 (1984), substantive changes kill prior approval. Therefore, whatever AHG is proposing now is what AHG must substantively propose ultimately.

BM said that the holding of Sklar Realty is not written into RSA 674:41 and that the selectmen do not know that what they approve now would be what the planning board ultimately approves.

JP said that BM is simply stating a reason to deny AHG’s current request under RSA 674:41, I, (c), (1). Nothing stops the board of selectmen from approving a later request.

CW said that BM is also stating the reason why the board of selectmen must develop a class VI highway-development policy. Such policies state the information that the board of selectmen must have to approve an application under RSA 674:41, I, (c), (1), but the information required is stated in the board of selectmen’s policy, not in the planning board’s approval. If AHG were to change her application substantively, then the planning board’s conditional approval (of April 19, 2007) would become void.

BM said that the board of selectmen’s approval under RSA 674:41, I, (c), (1), would still exist even if the planning board’s approval became void.

CW said that the board of selectmen’s class VI highway-development policy would state the conditions in which the approval under RSA 674:41, I, (c), (1), would survive or become void. The class VI highway-development policy and its conditions for approval are the board of selectmen’s responsibility, not the planning board’s responsibility.

BM said that the planning board may have to consider revoking AHG’s conditional approval because the board of selectmen has not authorized the issuance of building permits under RSA 674:41, I, (c), (1).

CW said that the board of selectmen’s failure to authorize the issuance of building permits under RSA 674:41, I, (c), (1), is not the planning board’s responsibility. AHG has petitioned the board of selectmen to authorize the issuance of building permits under RSA 674:41, I, (c), (1). AHG is responsible for persuading the board of selectmen to vote that authorization.

BM asked for confirmation that the planning board does not have to have a decision from the board of selectmen under RSA 674:41, I, (c), (1).

JP said that BM was technically correct. Because AHG asked the planning board for final subdivision-approval before AHG obtained or requested approval under RSA 674:41, I, (c), (1), the planning board can deny final subdivision-approval.

BM asked why could the planning board not give final subdivision-approval before the board of selectmen gives approval under RSA 674:41, I, (c), (1).

JP said that approval under RSA 674:41, I, (c), (1), is a condition precedent to final subdivision-approval. (Turco v. Barnstead.)

CW said that, in May 2012, when AHG requested final approval, he looked for the list of conditions precedent to be confirmed fulfilled. CW looked for the condominium documents. They did not exist. CW looked for the developer’s improvement agreement. It did not exist. CW looked for approval under RSA 674:41, I, (c), (1). It did not exist. Why would the planning board want to purport to approve buildable lots when the board of selectmen has given no approval under RSA 674:41, I, (c), (1)? The board of selectmen has great power and flexibility under RSA 674:41, I, (c), (1). CW cited New Hampshire Practice and said that this treatise says that the board of selectmen should be very careful in approving subdivision on class VI highways as opposed to building on individual lots on class VI highways.

JP said that the answer to BM’s concern of not wanting to say “yes” under RSA 674:41, I, (c), (1), is to say “no” under RSA 674:41, I, (c), (1). The Planning Board in New Hampshire – A Handbook for Local Officials (page IV-15) advises the planning board not to grant conditional approval when the board does not have enough information to support the approval. The same principal should apply to a decision under RSA 674:41, I, (c), (1). If the selectmen do not have enough information to say “yes” under RSA 674:41, I, (c), (1), then the selectmen should say “no” and explain that they are saying “no” because they do not have enough information to say “yes.”

CW said that the board of selectmen on July 23, 2013, suggested a joint nonpublic session of the board of selectmen and the planning board for “consultation with legal counsel.” (RSA 91-A:2, I, (b).) CW sees no reason why a nonpublic session is necessary to discuss process for RSA 674:41, I, (c), (1), and CW said so in his letter of July 25, 2013, to the board of selectmen. CW’s letter also referred to the question of which must come first: the planning board’s final approval or the board of selectmen’s approval under RSA 674:41, I, (c), (1). To answer this question, CW’s letter quoted the full passage from Turco v. Barnstead holding that that RSA 674:41 applies with equal force to building permits and subdivision permits. (Turco v. Barnstead, 136 N.H. 256, 265, 615 A.2d 1237, 1241 (1992).)

CW referred to his suggestion on July 23, 2013, that the selectmen seek guidance from highway agent George Bachelder in evaluating AHG’s plans to improve Thompson Road. CW’s letter of July 25, 2013, to the board of selectmen explains that the evaluation information that the highway agent should furnish is as specified in Pembroke’s class VI highway-development policy, Applicant, A, 7 and 8: the right-of-way width, the traveled way width, the road conditions, and any proposed road improvements. The selectmen must know what will happen to the section of Thompson Road between NH Route 107 and Stagecoach Road. The highway agent should report the right-of-way boundaries.

CW explained to the selectmen on July 23, 2013, that the New Hampshire Department of Transportation (“NH DOT”) had not given the Sargents and Kathy Bleckmann due process when the NH DOT approved AHG’s proposed improvements to Thompson Road. The NH DOT did not hear the Sargents on the issue of drainage onto their land, or Kathy Bleckmann on the issue of moving Kathy Bleckmann’s stone wall. The NH DOT did evaluate the drainage onto Sargent land but did so without hearing the Sargents. Because the abutters have not had due process, the board of selectmen should hear the abutters before the board of selectmen approves AHG’s proposed improvements (under RSA 236:9) to Thompson Road.

CW said that, in addition, the board of selectmen must consider any safety concerns on Thompson Road.

CW said that the planning board cannot approve AHG’s plan unless AHG tells the planning board that AHG will not move Kathy Bleckmann’s stone wall.

BM asked whether the planning board had told AHG that the NH DOT driveway permit is not valid because AHG has no permission to move Kathy Bleckmann’s stone wall.

JP said that reason 5 of the notice of meeting for August 15, 2013, says that the NH DOT driveway permit is not valid because AHG has no permission to move Kathy Bleckmann’s stone wall.

BM asked whether the board had received any communication from AHG.

CW said that AHG engineer Jennifer McCourt had asked the board to schedule a compliance review, but she made her request before the board sent Andrew Sullivan the letter of July 11, 2013, saying that the board would consider revoking the conditional approval of April 19, 2007.

AGENDA ITEM 6: Selectman’s Report – Eric Nilsson, Selectman Ex Officio

GL said that the board of selectmen is disappointed that the planning board has refused to have a joint nonpublic session of the board of selectmen and the planning board for “consultation with legal counsel.” (RSA 91-A:2, I, (b).)

BM asked GL why the board of selectmen needs to consult with the town attorney in a nonpublic session.

GL said that the board of selectmen does not want to have shown its hand if the selectmen’s decision under RSA 674:41, I, (c), (1), goes to a lawsuit.

JP said that the town should not have a hand at this time.

BM agreed with JP and said that the board of selectmen’s reasons would be discoverable anyway.

GL said that he was stating the advice of the town attorney.

CW said that he had talked to PH about having a joint nonpublic session for “consultation with legal counsel.” (RSA 91-A:2, I, (b).) PH shares CW’s concerns about the proposed joint nonpublic session. The planning board’s positions are very clear. CW does not know what the board of selectmen is thinking. CW thinks that a group of voting board members meeting behind closed doors is very dangerous. The planning board’s letters have set out the board’s requests, the case law, and the statutes very clearly.

JP quoted RSA 91-A:3, II, (e): “Only the following matters shall be considered or acted upon in nonpublic session: … (e) Consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the public body or any subdivision thereof…” JP said that the town cannot hide its hand from an opponent in litigation unless the litigation has actually been threatened in writing or filed. No litigation has been threatened in writing or filed in the AHG case.

CW agreed with JP and emphasized that the town is in the process of deciding the merits of an application; the town is not in the process of devising a strategy to defend a decision already made.

BM said that the planning board should not stop doing things in public, as the board has done all along.

PH said that he opposes gathering in nonpublic session because a nonpublic session appears to be doing something improper. The planning board’s nonpublic session on June 6, 2013, gave PH additional reason for concern.

CW said that the planning board’s consensus is that the board will not have a nonpublic “consultation with legal counsel.” (RSA 91-A:2, I, (b).)

PH said that the planning board’s whole case is set forth in over a year of the board’s minutes.

AGENDA ITEM 7: Members’ Concerns

No board member expressed any concern.

AGENDA ITEM 8: Public Input

BM asked whether the board should acknowledge or summarize in the minutes Carol Lambert’s letter of July 25, 2013, responding to the notice of meeting on August 15, 2013.

CW suggested that the board acknowledge all such letters at the August 15, 2013, meeting.

AGENDA ITEM 9: Adjournment

PH moved to adjourn the meeting.

BM seconded the motion.

Vote to adjourn the planning board meeting of August 1, 2013: carried 5 – 0 – 0. (Voting “yes”: JP, GL, PH, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of August 1, 2013, is adjourned at 7:41 P.M.

Minutes approved: August 15, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on August 3, 2013, from notes that I made during the planning board meeting on August 1, 2013, and from a copy of the one town tape that Chairman Clayton Wood made on August 2, 2013.

____________________________________________
Jim Pritchard, planning board recorder and secretary

one town tape