August 15, 2013 Minutes

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

DATE: Thursday, August 15, 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;
Eric Nilsson (EN), selectmen’s ex officio planning board member; and
Peter Dow (PD), alternate planning board member.

Planning board members absent:
Gerard LeDuc (GL), selectmen’s ex officio alternate planning board member.

On August 6, 2013, GL submitted to the board of selectmen a letter stating his resignation as the selectmen’s ex officio alternate planning board member. The board of selectmen will consider GL’s letter of resignation at the board of selectmen’s next meeting, on August 20, 2013. See the board of selectmen’s minutes, August 6, 2013, and tonight’s planning board minutes, agenda item 6, Selectman’s Report.

Other town officials present: Jesse Pacheco, building inspector.

Members of the public appearing before the planning board:
Fred Hast, 140 Barnstead Road (Route 107), Pittsfield, NH;
Carol Lambert, 83 Governor’s Road, Pittsfield, NH;
Dan Schroth, 295 Clough Road, Pittsfield, NH; and
Larry Stockman, 1078 Province Road (Route 107), Gilmanton, 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: Agenda Review

CW had no changes to make to the agenda.

AGENDA ITEM 4: Approval of Minutes of the August 1, 2013 Meeting

BM moved to approve the minutes of August 1, 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 August 1, 2013, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: EN.)

AGENDA ITEM 5: Consideration to Revoke the Conditional Approval for the Stagecoach Station Cluster Subdivision (Map R44, Lot 1)

JP recused himself because his mother is an abutter to the Stagecoach Station project.

PD sat in JP’s place.

CW said that, on July 11, 2013, the board had sent letters to Attorney Andrew Sullivan of AHG Properties and to the abutters of Stagecoach Station that the board would consider revoking the board’s April 19, 2007, conditional approval of Stagecoach Station. CW read the board’s notice of consideration to revoke the board’s April 19, 2007, conditional approval of Stagecoach Station. CW asked that the notice be included in the minutes:

Notice of Meeting

Notice of Consideration to Revoke Conditional Approval

The Pittsfield Planning Board will hold a meeting to consider revoking the board’s April 19, 2007, conditional approval of Stagecoach Station subdivision. The time and place of the meeting is Thursday, August 15, 2013, 7:00 PM, at the Pittsfield Town Hall, 85 Main Street, Pittsfield, NH. The applicant’s name and address is AHG Properties, Inc., 46 Strawberry Hill Road, Bedford, NH 03110. Stagecoach Station is a 12-lot cluster subdivision on Thompson Road, a class VI highway, between NH Route 107 and Governor’s Road, tax map R44, lot 1, in the Rural zoning district. The board’s enabling authorities to consider the revocation are Thomas v. Town of Hooksett, 153 N.H. 717, 903 A.2d 963 (2006) and Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006). The board’s reasons for considering the revocation are:

(1) AHG refuses to bond Stagecoach Station for completion (RSA 674:36, III, (b), and subdivision regulations section 7, A, 2);
(2) AHG refuses to remove “as amended from time to time” from the conservation restriction (subdivision regulations section 5, K, 4);
(3) AHG refuses to state the locations and dimensions of the unit footprints (RSA 356-B:7);
(4) AHG refuses to redesign the plan so as not to move the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field (Hoban v. Bucklin, 88 N.H. 73, 80, 184 A. 362, 366 (1936)); and
(5) AHG’s lack of permission to move the stone wall violates condition 5 of the NH DOT driveway permit required by the April 19, 2007, conditional approval.

The board will consider any written comments that the applicant or any other member of the public submits to the board by August 9, 2013. August 9, 2013, means the date when the board receives the written comments.

The application for Stagecoach Station is on file for public inspection at the town hall, 85 Main Street, Pittsfield, NH.

The preceding sentence is the end of the notice of consideration to revoke the conditional approval of Stagecoach Station subdivision.

CW said that the board had received two letters by the August 9, 2013, deadline: one letter was from Carol Lambert, and one letter was from Kathy Bleckmann. The board received no letter from the applicant, AHG Properties.

CW suggested appending the letters to the minutes but not reading them aloud because the board is focusing on its specific requests to AHG.

BM moved the board to append the two letters to the minutes and not read them aloud.

EN seconded the motion.

Discussion: None.

Vote to append the two letters of Carol Lambert and Kathy Bleckmann to the minutes and not read them aloud: carried 5 – 0 – 0. (Voting “yes”: PD, EN, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

The letters are appended at the end of the minutes document.

PH said that he welcomed the letters from the abutters. Neither author is vague in her position, and both letters make good points.

CW said that he had sent a letter to the applicant’s attorney (Andrew Sullivan) to tell him of tonight’s revocation proceedings and to allow him 10 minutes to explain any written comments that he might submit by the August 9, 2013, deadline. The 10-minute allowance is moot because neither the applicant nor her attorney appeared.

CW said that no statutory process to revoke a conditional approval exists, but a statutory process to revoke a recorded final approval does exist. (RSA 676:4-a.) For tonight’s consideration to revoke AHG’s (unrecorded) conditional approval, the board has adapted the process to revoke a recorded final approval. The board must state the specific reasons for the revocation.

CW moved the planning board to revoke the board’s April 19, 2007, conditional approval of Stagecoach Station subdivision because of the five reasons stated in the board’s notice of consideration to revoke the conditional approval:
(1) AHG refuses to bond Stagecoach Station for completion (RSA 674:36, III, (b), and subdivision regulations section 7, A, 2);
(2) AHG refuses to remove “as amended from time to time” from the conservation restriction (subdivision regulations section 5, K, 4);
(3) AHG refuses to state the locations and dimensions of the unit footprints (RSA 356-B:7);
(4) AHG refuses to redesign the plan so as not to move the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field (Hoban v. Bucklin, 88 N.H. 73, 80, 184 A. 362, 366 (1936)); and
(5) AHG’s lack of permission to move the stone wall violates condition 5 of the NH DOT driveway permit required by the April 19, 2007, conditional approval.

PH seconded the motion.

Discussion:

BM questioned the board’s authority to revoke a conditional approval and recommended that the board simply stop processing the Stagecoach Station application until AHG responds to the board’s four requests. BM said that he had been able to find only one statute relating to revocation, and that statute (RSA 676:4-a) applies only to a recorded approval, which the conditional approval of Stagecoach Station is not. The situation before the board is (1) an applicant asking for final approval and recording and (2) the board telling the applicant that the final approval and recording can happen only when the applicant provides certain things, including the matters listed 1 through 4 in the board’s notice of consideration to revoke the conditional approval. BM said that a vote to revoke a conditional approval is improper because no statutory process to revoke an unrecorded approval exists. If the board votes to revoke the unrecorded conditional approval, then the board will give the applicant a specific act of the board that the applicant can appeal as being not supported by the statutes. Despite BM’s opposition to the revocation motion, BM said that he does not support final approval of Stagecoach Station because the applicant has not satisfied the requirements for final approval. BM recommended that the board simply stop consideration of Stagecoach Station and adopt a resolution “that, absent responses from the applicant to requests for certain changes in the application, the planning board cannot proceed toward final approval.” This resolution will avoid a lawsuit claiming that the board revoked the conditional approval without following a statutory process. AHG would not be able to sue the town unless AHG went to court and convinced the court that each of the five “compliance criteria” of the revocation motion does not apply to final approval, and BM thinks that the five “compliance criteria” do apply to final approval. BM acknowledged that his recommendation would leave the Stagecoach Station application unresolved, at least for the moment, but BM said that any future planning board trying to resolve the Stagecoach Station application would have to confront BM’s recommended resolution first.

CW said that the board had already discussed BM’s approach at the board’s July 10, 2013, meeting.

BM agreed but said that he had changed his mind since July 10, 2013. “It irritates me that these people have ignored us and defied us, and that sort of makes me want to say, ‘let’s revoke it,’ but I don’t think that’s a good idea.”

CW said that case law establishing the board’s authority to revoke a conditional approval does exist. (Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006).)

BM said that court cases are decided case by case. No statute enabling the board to revoke a conditional approval exists.

CW reminded BM that the board had agreed that doing nothing is not an option. AHG has formally requested a decision under RSA 674:41, I, (c), (1), and a compliance hearing. On July 10, 2013, the board cited case law (DHB v. Pembroke, 152 N.H. 314, 876 A.2d 206 (2005)) saying that the board cannot defer a final-approval decision indefinitely to force the applicant to comply with the board’s requests. (See the planning board minutes of July 10, 2013, agenda item 6, page 10, paragraph 5.) The board is on record as having decided that AHG must comply with the board’s four requests before the board can proceed with a compliance hearing. The board discussed that its two options were (1) rescind its four requests or (2) revoke the conditional approval. CW repeated that case law establishing the board’s authority to revoke a conditional approval does exist. (Simpson Development Corp. v. City of Lebanon.) Doing nothing will weaken the board and expose the board to a lawsuit. CW will have to schedule a compliance hearing if the board does not revoke the conditional approval, because the board cannot simply “sit on” the application; the law does not permit indefinite deferral.

PD asked what would happen if the board scheduled a compliance hearing. Would the board find the application noncompliant because the applicant has not satisfied the board’s four requests?

CW said that the board had discussed this issue too. If the board does not have a separate process for the five reasons stated in the notice of consideration to revoke the conditional approval, then the board will go into the compliance hearing having already decided the result of the compliance hearing. Because the compliance hearing is supposed to be judicial (RSA 676:4, I, (i)), AHG will complain that the board was prejudiced. The board has to face the five reasons and decide what to do about them. The board has been digging into these problems for more than a year and has been developing an increasingly firm position on them. CW said that BM was the board member who had moved the board to send the board’s letters of April 25 and May 6, 2013, and that the board had approved the three letters almost unanimously. The board must now act on those letters. The board sent the letters in April, the month is now August, and the applicant has not answered.

EN said that the board would be satisfied if, at a compliance hearing, AHG would agree to all of the board’s requests.

CW said that AHG would have 30 days to ask the board to reconsider its decision if the board revoked the conditional approval. CW repeated that the board has the authority to revoke a conditional approval.

EN said, “I’m on Bill’s [BM’s] side of the RSA part only because, if the RSA doesn’t say anything about a nonrecorded item, they’re going to end up, there’s going to be a loophole somewhere.”

BM said that the validity of the board’s revocation would depend on how well the board’s revocation would compare to other revocations that the supreme court has affirmed.

CW said that the board’s revocation would compare very well to what the supreme court has affirmed.

BM said that the board should schedule a compliance hearing because compliance is the issue. If the board finds Stagecoach Station to be noncompliant, then the board will not have to record a final approval.

CW said that a compliance hearing would have to consider many items other than the five reasons of the revocation notice. For example, the board has not even seen the developer’s improvement agreement that AHG was supposed to modify. The board must resolve the five reasons of the revocation notice before the board can proceed to other compliance matters. The board presented its four requests to AHG four months ago. What makes BM think that AHG will change her position at a compliance hearing?

BM agreed that he did not think that AHG would change her position, but BM said that the board needs a compliance hearing to establish that AHG is not compliant. If, at the compliance hearing, AHG refuses to comply with the board’s requests, then the board will know that AHG is not compliant.

CW asked BM why the board had sent AHG the board’s three letters.

BM said that the board had sent AHG the three letters to persuade AHG to comply with the board’s requests, but BM said that the board needs a compliance hearing to establish that AHG has not complied with the board’s requests.

CW said that the board is having a hearing on compliance with the three letters right now. The board is considering revocation on the basis of the three letters.

BM said that the board needs another step in the process. The board needs to have a compliance hearing so that, after the board votes to revoke, the board can say that it found AHG to be noncompliant after a compliance hearing.

CW said that the revocation issue will be moot if AHG does not pass the compliance hearing. CW said that the board had given AHG many chances.

BM agreed.

CW said that BM had said, “Let’s call their bluff on this.” The board did call the bluff, but AHG did not fold.

BM agreed and said that the board must now follow procedure.

CW said that the procedure is revocation.

BM said that a compliance hearing is a procedural step before revocation.

CW reminded BM that the board had discussed its three theoretical options on the board’s letters to AHG: (1) do nothing, (2) rescind the board’s votes on its letters, which no board member wanted to do, or (3) revoke the conditional approval.

PD asked for clarification of the 30-day period of reconsideration.

CW said that the revocation statute (RSA 676:4-a) allows the applicant to ask for a hearing if the approval is revoked. “They have 30 days.” There is also a state appeals process. If the planning board revokes the conditional approval, then AHG can tell the board what AHG will do.

PD asked whether AHG would get a letter telling her of her options.

CW said that the board would give AHG a notice of tonight’s decision.

PD asked whether AHG knows what her appeal options are.

CW said that he did not know what AHG knows. CW said that his letter clearly asked for a “yes” or “no” answer and, if the answer was “no,” what was AHG’s plan.

PD said that the board should do what it said that it would do.

PH said that the board had been working on the Stagecoach Station application for a long time and that AHG has had six to eight months to resolve the current problems. AHG has been uncooperative. The board must decide. The board could give AHG another six months or so, but, if the board gives this extra time, the board will be doing nothing except attending to AHG. PH asked CW to end the discussion and call for a vote.

BM disagreed with PH. BM said that revocation may be appropriate in the future but that the board must be certain not to miss any procedural steps.

EN asked why the board had not held the compliance hearing months ago when AHG first approached the board.

PH said that the board gave AHG the extra time in order to give AHG every opportunity to satisfy all conditions of final approval. Despite the board’s efforts to help AHG, AHG did not cooperate.

Fred Hast stated a point of order that PH had asked the chair to end the discussion and call for a vote.

CW agreed with Fred Hast’s point of order.

PD asked for a reading of the motion.

JP, as recording secretary speaking from the audience, read the motion.

Vote to revoke the board’s April 19, 2007, conditional approval of Stagecoach Station subdivision because of the five reasons stated in the board’s notice of consideration to revoke the conditional approval:
(1) AHG refuses to bond Stagecoach Station for completion (RSA 674:36, III, (b), and subdivision regulations section 7, A, 2);
(2) AHG refuses to remove “as amended from time to time” from the conservation restriction (subdivision regulations section 5, K, 4);
(3) AHG refuses to state the locations and dimensions of the unit footprints (RSA 356-B:7);
(4) AHG refuses to redesign the plan so as not to move the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field (Hoban v. Bucklin, 88 N.H. 73, 80, 184 A. 362, 366 (1936)); and
(5) AHG’s lack of permission to move the stone wall violates condition 5 of the NH DOT driveway permit required by the April 19, 2007, conditional approval:
carried 3 – 2 – 0. (Voting “yes”: PD, PH, and CW. Voting “no”: EN and BM. Abstaining: none.)

CW said that he would notify AHG of the board’s decision and would advise AHG of her options to request reconsideration or to appeal within 30 days. CW thought that the board would have to hold a public hearing if AHG requested reconsideration, but the board does not have to revote on the revocation; AHG would have to show something new to persuade the board to reverse itself.

EN said that the board’s revocation notice and the board’s agenda said that the board would “consider” revoking the conditional approval. Nothing said that the board would actually revoke the conditional approval.

PD said that anyone concerned about the revocation happening should have appeared at the consideration hearing.

CW said that the board could have revoked the conditional approval and then notified the applicant after the revocation. (RSA 676:4-1, II.) The board has been as consistent in processing this application as the board could have been.

BM said that he was not saying that revocation was wrong; the board just did it in the wrong way.

The board’s notice of decision revoking the board’s April 19, 2007, conditional approval of Stagecoach Station subdivision is appended at the end of the minutes document, after the letters of Carol Lambert and Kathy Bleckmann. (See RSA 676:3, II.)

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

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

EN said that Larry Konopka had resigned from the board of selectmen effective last Sunday, that GL had submitted a letter stating his resignation as the selectmen’s ex officio alternate planning board member, and that EN had tried to resign as the selectmen’s ex officio planning board member but that the board of selectmen had not accepted EN’s resignation because the resignation was not in writing. GL submitted his letter of resignation on August 6, 2013, and the board of selectmen will consider GL’s letter of resignation at the board of selectmen’s next meeting, on August 20, 2013.

BM asked what is the procedure for replacing a selectman who has resigned.

EN said that he is now the acting chair of the board of selectmen (because Larry Konopka was the chair and because EN is the vice-chair). EN explained that the board of selectmen will advertise for candidates and then will appoint someone.

AGENDA ITEM 7: Members’ Concerns

PH began a brief discussion among board members of housing for older persons. The board agreed to put this topic on the agenda of a subsequent meeting in order to consider the matter in greater depth. The topic of housing for older persons might involve proposing changes to the zoning ordinance.

EN said that the town needs a zoning change relating to the BOCA building code. The BOCA building code as such no longer exists.

AGENDA ITEM 8: Public Input

Dan Schroth said that AHG will fight the board’s revocation. Dan Schroth said that waiting five months for AHG to comply with the board’s requests was not a long time as Dan Schroth does business. Sometimes Dan Schroth needs eight years to finish a project.

Dan Schroth said that JP’s vigorous note-taking suggested that JP expects AHG to sue.

Dan Schroth asked how far apart the board and AHG are on the proposed bond amount.

Dan Schroth asked for confirmation that the Condominium Act (RSA 356-B) requires AHG to show the unit footprints.

CW said yes.

Dan Schroth said that he might not want his own stone wall to be moved, but he is moving it anyway. Dan Schroth said that stones get moved every day.

Dan Schroth said that JP had been interacting with the board during the revocation proceedings.

Dan Schroth said that Stagecoach Station appeared to be lost. Dan Schroth said that the loss would cost revenue from both the town and businesses.

Dan Schroth thanked AHG for tying up the planning board this year.

Dan Schroth said that the town’s most serious problem is increasing expenses, no increasing revenue, and a decreasing population.

Dan Schroth said that the town is 21% overvalued. The tax rate will jump when the town corrects its valuation. The high tax rate will discourage development.

Dan Schroth said that the town will not be able to pave its roads.

Dan Schroth repeated that AHG will fight the revocation. Dan Schroth said that he agreed with BM.

Carol Lambert thanked CW for his leadership and the board for its courage.

Larry Stockman thanked the board for its work. Larry Stockman said that Dan Schroth had attended none of the meetings on Stagecoach Station that Larry Stockman had attended.

Dan Schroth said that he thought that he had “helped to approve this development.”

Fred Hast asked whose land the stone wall was on.

CW said, “Mrs. Bleckmann and the town.”

EN said that AHG’s surveyor had said that the stone wall is inside the Thompson Road right-of-way.

JP, speaking from the audience, referred to Dan Schroth’s statement that JP interacted with the board during the revocation proceedings. JP said that he did not interact with the board except as necessary for JP’s duties as recording secretary.

JP referred to the board’s discussion of whether the board followed proper procedure to revoke a conditional approval and whether the board “should have gone a few extra miles.” JP read the first paragraph of Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988, 989 (2006):

“The plaintiff, Simpson Development Corporation (Simpson), appeals an order of the Superior Court (Houran, J.) affirming a decision of the City of Lebanon Planning Board (the board) revoking its conditional approval of an amendment to Simpson’s cluster subdivision plan. We affirm.”

JP said that the supreme court’s affirmation established the planning board’s authority to revoke a conditional approval. JP said that he had researched the procedure that Lebanon had followed, and that even the case itself shows that the time between when the board discovered its error and when the board revoked the conditional approval was much shorter in Lebanon than in Pittsfield. JP said that he had read planning board minutes from the Lebanon case and that the Pittsfield Planning Board had done much more for AHG than the Lebanon Planning Board did for Simpson, and JP did not agree that the Pittsfield Planning Board omitted some step that the board should have taken.

AGENDA ITEM 9: Adjournment

EN moved to adjourn the meeting.

BM seconded the motion.

Vote to adjourn the planning board meeting of August 15, 2013: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, CW, and BM. Voting “no”: none. Abstaining: none.) The planning board meeting of August 15, 2013, is adjourned at 7:55 P.M.

Minutes approved: September 5, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on August 18, 2013, from notes that I made during the planning board meeting on August 15, 2013, and from a copy that Chairman Clayton Wood made on August 16, 2013, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary

Attachments:
1. Letter of Carol Lambert to the planning board, July 24, 2013.
2. Letter of Kathy Bleckmann to the planning board, August 4, 2013.
3. Notice of decision revoking the planning board’s April 19, 2007, conditional approval of Stagecoach Station Subdivision.