August 2, 2012 Minutes

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

DATE: Thursday, August 2, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:02 P.M.

AGENDA ITEM 2: Roll Call

Members present: Jim Pritchard (JP, secretary), Gerard Leduc (GL, selectmen’s ex officio member), Bill Miskoe (BM, associate member), Clayton Wood (CW, chair), and Peter Dow (PD, alternate).

Members absent: Pat Heffernan (PH, vice-chair) excused absence, and Larry Konopka (LK, selectmen’s ex officio alternate).

Other town officials present: None.

Members of the public appearing before the planning board: Fiona Doody, 63 Tan Road; Jeff Doody, 63 Tan Road; Carol Lambert, 83 Governor’s Road; Nick Saint Germain, 43 Tan Road; Nathan Thorsell, 19 Tan Road.

AGENDA ITEM 3: Agenda Review

CW asked PD to sit for PH.

CW asked GL whether GL wanted to give the selectmen’s report in a dedicated selectmen’s report period, or whether GL could give the report in the members’ concerns period.

GL agreed to use the members’ concerns period.

CW asked the members of the audience present when they wanted to address the board. CW explained that public input was usually the last agenda item

The audience members agreed to wait for the designated public-input period.

AGENDA ITEM 4: Approval of Minutes of July 5, 2012

GL moved to approve the minutes as written in draft.

JP seconded the motion.

Discussion:

BM asked that the following passage in Agenda Item 5, page 9:

“BM told the abutters that the board will ensure that the plat is the same as the plat that the board approved in 2007.

“JP said that the abutters should not have to listen to BM’s post-decision rhetoric.”

should be changed to read as follows to delete JP’s objection:

“BM told the abutters that the board will ensure that the plat is the same as the plat that the board approved in 2007.”

BM said that JP’s objection should be deleted because the chair had not recognized JP to speak as a member of the public when JP objected.

GL and CW agreed with BM.

JP objected to the deletion. JP said that his objection to BM’s address to the abutters should stand because JP had not interrupted board deliberations and because BM had had no right to address the abutters after the board had reached its decision and while BM was still sitting as a board member. JP also noted that GL had previously insisted that an out-of-order comment that did interrupt board deliberations (Matt St. George, January 5, 2012) must be included in the minutes.

CW said that, in Agenda Item 5, page 11, he had said that the escrow amount was $1000. The minutes are accurate, but the number that CW had given was wrong. The correct number was $2005.

Vote to approve the minutes of July 5, 2012, with the change that BM requested: carried 4 – 0 – 1. (Voting “yes”: PD, GL, BM, and CW. Voting “no”: none. Abstaining: JP.)

AGENDA ITEM 5: Review/Discussion Final Plat Approval of Cluster Subdivision/Site Plan for AHG Properties, Inc., Stagecoach Condominiums, Tax Map R44, Lot 1

JP recused himself because his mother is an abutter.

CW said that board members should have a copy of his letter to AHG dated July 15, 2012. [Editorial comment of recording secretary JP: JP did not receive a copy of the chair’s letter and therefore took the information strictly from the chair’s statements.] As of July 15, the board had nine concerns, which the July 5, 2012, minutes listed in Agenda Item 5, page 11. CW’s letter addressed the first five concerns:

1. State subdivision approval.
2. State septic system approval.
3. Permits for community water supply.
4. Specification of utilities as underground or aerial.
5. Condominium covenants.

CW said that AHG responded to these first five concerns.

CW said that the “potable water supply” of Stagecoach Station does not meet the state definition of a “community water system.” CW researched RSA 485:1-a, I. This statute defines a “community water system” as having 15 service connections. AHG resolved the board’s questions in relation to utilities. AHG said that the condominium covenants are “to be submitted at a future time.” The condominium covenants are important because they are a condition of the special exception in relation to the use of the common area. But AHG has resolved the board’s first four concerns as far as CW knows; CW will do more research on concern 4 with building inspector and code enforcement officer Jesse Pacheco. The board has four other concerns in addition to the first five concerns:

6. Permission from the selectmen to build on a class VI highway (RSA 674:41, I, (c), (1)).
7. Recorded waiver of maintenance liability on a class VI highway (RSA 674:41, I, (c), (3)).
8. Bond for improvement of Thompson Road.
9. Bond for the NH Department of Transportation Driveway permit.

CW met with highway agent George Bachelder, town administrator Paul Skowron, and selectmen’s representative GL only two days ago on Tuesday. CW, George Bachelder, Paul Skowron, and GL agreed that CW will work with Matt Monahan of the Central New Hampshire Regional Planning Commission to resolve these four concerns. CW said that there is confusion among some officials about concerns 6 and 7. Both the selectmen’s permission and the recorded waiver must exist before the board can give final approval. Case law makes these requirements clear. George Bachelder felt comfortable that the NH DOT driveway permit makes AHG responsible for the driveway-permit bond. CW disagreed because the driveway permit does not mention AHG; the permit is in the name of the Town of Pittsfield. Furthermore, the subdivision regulations require AHG to post a bond. Participants of the Tuesday meeting thought that the state will require someone to bond the work, that the town will refuse to bond the work, so that AHG will have to provide the bond. CW disagreed with that thinking, especially because the driveway permit does not mention AHG; the permit only states the Town of Pittsfield. The highway agent said that he will not oversee the reconstruction of Thompson Road because this project will not use town money. The meeting suggested that private consultant Louis Berger Group would oversee the reconstruction of Thompson Road. AHG would have to pay Louis Berger Group. CW said that he is concerned about the condominium covenants. Nowhere does the application say how Thompson Road will be maintained. Consequently, AHG must sign the waiver of road-maintenance liability, and AHG must bond the road work to ensure that the road will at least be restored to its current condition if AHG defaults. The planning board and the board of selectmen will work together to manage this class VI-highway development project. CW will work with Matt Monahan to create a list of what the planning board needs to “sign off” on the AHG application, and how much money Louis Berger Group will need to oversee the project. The highway agent will work with Louis Berger Group to ensure that the construction does, in fact, meet town road-construction standards at the final inspection of the road work. The board will not vote on the AHG application tonight because of the unresolved concerns.

BM asked whether the planning board had money in escrow to pay Matt Monahan.

CW said that there was almost $700.

BM asked what was CW’s “expectation that all this might be complete and ready for a vote on September 6.”

CW said that he had hoped to have more issues resolved during the month of July. CW said that the supervision of AHG’s road construction must be more than just Thompson Road; the supervision should include the road inside the subdivision. “They agreed to that.”

BM said that the town may not have any right to say how the condominium association will maintain its property or fulfill its obligations inside the subdivision.

CW said that the development infrastructure must be complete before AHG builds any house unless AHG posts a bond. Posting a bond is therefore in AHG’s best interest.

BM said that AHG must build much infrastructure before AHG can sell even one lot. “This is a heavily front-end-loaded project.”

PD asked whether CW had investigated the land-use concerns in the letters that the board had received.

CW said no. The board will meet next on September 6, 2012, and CW will research these matters by that meeting.

GL asked when will CW meet with Matt Monahan.

CW said that town administrator Paul Skowron will schedule the meeting. CW said that the selectmen should send a representative. This project could be a good occasion for the planning board and the board of selectmen to work on class VI highway development issues in general.

AGENDA ITEM 6: Members’ Concerns

JP returned to the board.

GL’s selectman’s report:

GL had nothing to report as the selectmen’s representative.

CW’s concern with the selectmen’s monitoring all planning board communications with the Local Government Center:

CW said that, several weeks ago, he had sent a letter to the board of selectmen asking them whether they would reconsider their policy of monitoring all communications between the planning board and the Local Government Center. CW wanted to know what action, if any, the selectmen had taken on that letter.

GL said that the selectmen have not acted on that letter. GL will remind the selectmen of that letter.

CW’s concern with Hank Fitzgerald’s petition to remove JP from the planning board:

CW said that the selectmen had received a petition for the removal of a board member [JP]. CW wanted to know what action, if any, the selectmen had taken on that petition.

GL said that the selectmen have not acted on that petition either. GL will remind the selectmen of that petition.

JP’s concern with the disqualification of PH and BM because of their activities at the zoning board of adjustment:

JP said that he had a concern related to PH, so PH’s absence is unfortunate. At the meeting of the zoning board of adjustment (“ZBA”) on July 12, 2012, PH sat with the ZBA to decide the variance application of Wayne Summerford, which PH had the right to do. In addition, BM attended the ZBA meeting and said, “I am in favor of granting the variance.”

JP said that PH should understand that he cannot sit on both tribunals (ZBA and planning board) for the same matter. Consequently, because PH sat on the ZBA for Wayne Summerford’s variance application to enable the subdivision, PH cannot sit on the planning board for the application for the subdivision itself; PH is disqualified. JP said that he did not know whether PH understands that sitting on the ZBA for Wayne Summerford’s project disqualified PH from sitting on the planning board for that same project.

JP said that, because BM said, “I am in favor of granting the variance,” BM has prejudged Wayne Summerford’s project and is thus also disqualified from sitting for the Summerford project. BM does not meet the juror standard as required by state law (RSA 673:14, I).

CW said that one planning board member can be on the ZBA, but most of the projects that go through the ZBA will come to the planning board. CW asked whether the statute clearly stated the disqualification.

JP said that members must meet the juror standard. A planning board member who has sat on the ZBA has literally prejudged the project. JP cited the example of Ed Vien, who had been a member of both the ZBA and the board of selectmen, and who had had to recuse himself from the Snedeker junkyard proceedings at the board of selectmen because Ed Vien had sat for that same matter at the ZBA. In BM’s case, one cannot say, “I am in favor of this project,” and then sit on the planning board and pretend to have any impartiality at all.

CW asked how can PH be effective on both boards at the same time.

JP said that PH cannot be effective on both boards at the same time.

BM said that, last year, the planning board had not objected to Ted Mitchell sitting on the ZBA while serving as chair of the planning board.

CW clarified that the issue was not being on the board; the issue was being on the vote of the board.

JP said that Ted Mitchell was an alternate to the ZBA and that Ted Mitchell never sat on both boards for the same matter. JP clarified that he was not saying that PH cannot be on both boards at the same time; PH simply cannot sit on both boards for the same matter.

BM said that he had spoken to the ZBA as a citizen. Being on the planning board does not deprive BM of his rights to express his personal opinion. Being in favor of the variance does not mean that BM cannot render an impartial decision on the planning board. BM will not recuse himself from the Summerford subdivision application.

JP said that he had not expected BM to recuse himself. BM’s distinction of speaking as a private citizen as opposed to speaking as a board member is irrelevant. There was a NH Supreme Court case (Winslow v. Holderness, 125 N.H. 262, 480 A.2d 114 (1984)) in which a person was in fact a private citizen, he spoke in favor of a project, and then he joined the planning board and participated in the vote on that project. The supreme court invalidated the planning board’s decision because of that person’s participation.

CW referred to H. Bernard Waugh’s essay Free Speech at Public Meetings—The New Hampshire Right-to-Know Law. A public official does lose some rights, or, as an alternative way of looking at the matter, the public official gains responsibilities. Planning board members should be careful how they interact with the other committees. This was the same issue that CW was discussing in relation to CW’s seeking the opinion of Carole Dodge, who chairs the ZBA. When Carole Dodge gives her opinion to the planning board, she puts herself in an awkward position on her own board.

BM said that whether the Summerford variance application is granted “has no bearing on whether or not his subdivision application can be granted, and I believe I can be entirely impartial on how I deal with that.”

JP said that the variance is, in fact, necessary to enable the subdivision, or at least it was requested for that purpose. Consequently, when BM said that he was in favor of granting the variance, he said that he was in favor of enabling this project. No abutter or other interested person sitting in the audience is going to think that BM, sitting on the planning board, is impartial following BM’s statement at the ZBA. When a person says that he is in favor of a project, then that person is disqualified.

JP’s concern with new construction in Bailey Park:

JP said that a lot owner in Bailey Park had approached building inspector Jesse Pacheco about building in Bailey Park. Jesse Pacheco had asked JP whether Bailey Park is an approved subdivision. JP had told Jesse Pacheco that, as best JP can remember, Bailey Park is not an approved subdivision. This issue first surfaced two and one half years ago when town attorney Laura Spector-Morgan had asked the planning board to approve open-space restrictions on Bailey Park. The planning board did not understand her request. The result of the research was that she was asking for approval on one of the subdivision-approval conditions that had never been fulfilled even though the plan had been endorsed and recorded. JP had reported to the planning board and had concluded that Bailey Park is either an unapproved subdivision or a subdivision violating its approval conditions. The condition at issue was “The Declaration of open space drafted by the Town Attorney.” This declaration related to the ownership and maintenance of the required common area to ensure permanent protection of the open space from development. That declaration had not been done. The subdivision regulations require this protection, and the notice of decision also specified it. The request for a building permit now forces the planning board to decide what it is going to do about Bailey Park and whether it will make an enforcement action. If the planning board does nothing here, then the board will invite accusations from other developers of selective enforcement. The planning board has to do something. The most obvious option is to revoke the subdivision approval relative to the unimproved lots. JP asked administrative assistant Cara Marston to find JP’s report, but she could not find it. JP suggested that he could reconstruct the report and distribute it to the board, and that the board be prepared to discuss this matter at the next meeting. In the meantime, JP suggests that the chair tell the building inspector to tell the applicant that his building permit is delayed because the planning board has to investigate whether Bailey Park is violating its approval conditions.

CW asked who activates this issue.

JP said that it was a planning board issue.

CW asked about time considerations.

JP read RSA 676:4-a, I, (b): The planning board may revoke a subdivision plat when the applicant or successor in interest “has materially violated any requirement or condition of such approval.”

CW asked for clarification that Bailey Park is a cluster development without by-laws.

JP said yes.

CW asked for clarification of ownership in Bailey Park.

JP said that the developer, K & M Developers, owned the open space the last JP knew. The town attorney wanted the planning board to approve open-space restrictions in order to fulfill a subdivision-approval condition. But the planning board did not want to impose these restrictions on people who had bought and improved lots in good faith when no such restrictions existed.

CW asked for confirmation that there are three owners of improved lots.

JP said yes.

CW asked how many lots exist.

JP said 12 he thought. [Editorial comment of recording secretary JP: Bailey Park actually has 15 house lots and one open-space lot.]

CW asked whether the building permit were for the developer.

JP said that the building permit would be for Mr. Eccleston, who was the subdivider.

BM said that the planning board approved the cluster subdivision. The original applicant was Mr. Eccleston. Mr. Eccleston’s company, Trigger Development, went bankrupt. At that point, three lots had been sold and built upon. The remaining lots went into foreclosure. Another organization bought the remaining lots. BM said that that organization sent the planning board letters “requesting that the planning board enforce a requirement that the existing owners, of which there were four, because one lot went to the original owner, requiring them to sign into an owner organization. The planning board declined to do that. The planning board simply said, ‘you, as a secondary buyer, have bought what you have bought.’ And that is my recollection of where that went. It is not the record. So, it’s a cloudy thing.”

BM asked why the building inspector presented this matter to JP instead of to the full board.

JP said that the matter evolved from a conversation on a different topic that JP and Jesse Pacheco had been discussing.

CW said that he will try to keep Jesse Pacheco more informed about the agenda.

BM asked JP who had asked JP to investigate and report on Bailey Park.

JP said the planning board had assigned him, as a planning board member, and Kyle Parker, the then-building inspector, to investigate and report.

CW said that part of the board’s problem was how to enforce the proposed arrangement.

JP read from the letter of the developer’s attorney:

“I would also appreciate your assessment and opinion on the lots not owned by my client. I believe there are four (4). Mr. Eccleston retained two (2) and Trigger sold two (4) [sic] as I recall. If I approach them on this they may well tell me to get lost. As I see it, the Town has the leverage to demand their cooperation and accepting an association and Declaration.”

BM said that the town declined to impose the covenants.

CW said that the board still has a problem.

BM said that, if the town refuses to issue building permits in Bailey Park, the town has already set a precedent in having issued three building permits.

JP disagreed. The issuance of three building permits was not a precedent because the town did not know about the problem then. The town officials and the new residents were acting in good faith. JP reminded the board that JP had said that any revocation would have to exclude the three improved lots, because the town issued the permits in good faith and because the builders used the permits in good faith. Those owners are grandfathered against any revocation proceedings. The town will set precedent if it issues any more building permits, because the planning board now knows about the problem. Furthermore, the town could expose itself to selective-enforcement accusations if the planning board says that Bailey Park does not have to have a permanent conservation restriction on its open space.

CW said that the problems in Bailey Park show why cluster developments must be planned properly. CW was once in a homeowners association with very good protection for its residents, from the first resident to the last. CW said that he will talk to Jesse Pacheco.

JP asked CW whether JP should reconstruct the report on Bailey Park.

CW said yes.

GL’s concern with the deputy building inspector:

GL said that he had resigned as deputy building inspector and that Eric Nilsson was the new deputy.

AGENDA ITEM 7: Public Input

Carol Lambert asked whether the board had received and considered her letter related to Stagecoach Station.

CW said that the board had received the letter but had not considered it because of its very recent delivery. The letters from the neighbors to Stagecoach Station will not be summarized in tonight’s minutes because the board has not had time to study them. The board will summarize the letters in a future meeting when the board resumes review of Stagecoach Station.

Carol Lambert asked why had the planning board not notified abutters about the recent activity on Stagecoach Station. The board used to notify her about abutting projects. Because the project was stagnant for so long, Carol Lambert had thought that the project was abandoned.

BM said, “Abutters are notified when an application comes to the board. This is not an application that has just come to the board. It was approved in 2007. We are not discussing the approval of the application.”

CW said that the only time when the board has to notify the abutters is when an application comes to the board for approval.

Carol Lambert asked for confirmation that the abutters will not have any opportunity to be heard despite the five-year delay in this project.

CW said yes.

BM said that an application requiring a public hearing has to be noticed, but the board is not doing anything now requiring a public hearing.

CW said that the Stagecoach Station neighbors would have an opportunity to speak at the September meeting of the planning board.

BM said that hearing the Stagecoach Station neighbors in September might not give them a meaningful opportunity to speak because everything might be in order to give the project final approval.

CW said that the board will hear the neighbors before the board votes on final approval.

Fiona Doody said that she knows little about planning board activities, but she wants to know whether the board considers the impact of a development on the neighborhood.

CW said that there is a whole list of such impacts in the subdivision regulations and in state law.

Fiona Doody asked why did the project resume after such a long lag.

CW did not know.

Fiona Doody asked whether it was the developer who started it again.

CW explained that the developer requested final approval of her plat.

Fiona Doody referred to Carol Lambert’s letter and that letter’s reference to the condominium covenants and a hearing on them. Does the planning board have to have a hearing on those covenants? Or did Carol Lambert have misinformation?

CW said that Carol Lambert may have received misinformation. Whether the board has to have a hearing depends on how substantial the change is.

Fiona Doody asked for clarification of what the condominium covenants do.

CW said that the condominium covenants define the legal responsibility for maintaining the common area, which is the area in joint ownership. The condominium covenants would also define the owners’ responsibility for maintaining the class VI highway Thompson Road.

Fiona Doody asked whether the planning board had a plan for managing the maintenance of Thompson Road.

CW said yes.

Fiona Doody asked about the planning board’s concern for the separate lot Tax Map R-44, Lot 1-3, which AHG prepared apparently for building and then abandoned years ago. Is the board concerned about a possible current-use violation?

BM said that this lot is not part of Stagecoach Station, although AHG owns both properties. The board of selectmen controls this issue.

CW agreed that the board of selectmen controls the tax issues on Tax Map R-44, Lot 1-3.

Fiona Doody asked whether all of these matters were public record.

CW said yes.

Nick Saint Germain asked whether the planning board was concerned that an owner owing taxes on another piece of property might suggest a higher chance of default in Stagecoach Station. Stagecoach Station sounds like Bailey Park in relation to its financial situation.

BM said that he was on the board in April 2007 when the board approved the Stagecoach project. AHG owed no taxes at that time. The developer has been trying to fulfill conditions since then. The board has no mechanism for determining the applicant’s financial status considering whether the project will succeed or fail.

Nick Saint Germain said that the planning board should consider the best interests of the town. This company is not benefiting the town if they owe back taxes.

BM said that the board has to follow rules and put the best interest of the town first. Because the board has no requirement on the books in relation to an applicant’s financial status, the board cannot consider this status.

CW said that the board has to apply objective conditions. If the board sets unreasonable conditions, then the developer can sue the board and win.

Nick Saint Germain asked whether there were a deadline for the developer to fulfill the conditions of the approval.

CW said that the board had had a split decision on that question. The majority decided that there was no deadline.

Nick Saint Germain said that such an arrangement would not make the development conform to current realities.

CW said that the board will avoid such a problem with future developments. In order to deny a project, the board has to give at least one solid reason grounded in law.

BM said that the board has abandonment standards for applications before the board and not approved. If the applicant does not keep the application moving, then the board can call the application abandoned after 12 months. But this application was approved.

Nathan Thorsell referred to the depressed real estate market. Does the planning board consider the affect that a development has on neighboring property values? Tax Map R44, Lot 1-3, is an eyesore on Governor’s Road. How does AHG think that they can sell 12 houses on the abutting property?

CW said that he did not know how to evaluate these property-value issues that Nathan Thorsell discussed. This difficulty is why CW supports restricting subdivision on class VI highways. The town currently has nothing in place defining a class VI property owner’s rights.

Nathan Thorsell said that overbuilding was bad planning.

BM said, “There is a bit of a planning board function here. When this particular Stagecoach application came to us back in 2006, it was for 24 lots on that same piece. The planning board looked at it and used a criterion which is in our subdivision regulations which says that the planning board can deny an application if it is considered to be premature and/or scattered. That’s a strange way to put it, but the function of that provision is for the planning board to say, ‘No, this is not a good sort of thing to have in this part of the town right now. Maybe in 15 years, when we have a sewer line, or when we build another school,’ so we have that much control. The only other control exists in the zoning ordinance, which says that I’m not allowed to move in next to you in a rural area and start recycling truck tires or something like that. But the planning board has no authority to tell people whether or not they are making good economic decisions.”

Nathan Thorsell said that the planning board could regulate the extent of road frontage and lot area.

CW said that the town regulates these features through the zoning ordinance. The planning board can propose changes to the zoning ordinance, but, if the town does not vote them in, they do not become law.

BM said that many of the subdivisions approved in the last five years will not make money soon. But it is not the planning board’s function to say that a development is economically unviable. BM said that he realized that Nathan Thorsell was talking about approvals diminishing property values, but the planning board does not control this issue. Controlling for diminished property values would be discriminatory.

Nathan Thorsell asked for clarification of the 24-lot proposal.

BM said that AHG had proposed 24 lots in a conceptual consultation. The planning board spent a lot of time on this proposal. The minutes of late 2006 to early 2007 show the board’s diligence in studying traffic issues and so forth. Stagecoach Station is a well-engineered project, and it was approved 5-0. The 24-lot proposal was denied in a conceptual consultation, so AHG returned with the 12-lot proposal.

Nick Saint Germain asked for clarification of the bond issue.

CW explained that the planning board, with the help of the engineering company, decides the extent of bonding. The bond assures that construction will be completed if the developer defaults. A surety bond is not risk sharing like common insurance; the surety company expects to get the money from the developer if the developer defaults.

BM said that there were a number of ways that this project could be bonded. The planning board could request that the developer deposit cash with the town. The planning board could allow the developer to get a third-party bonding company to bond the project. A third form is called a performance bond, which is also dealt with by a bonding company, which guarantees a certain amount and quality and type of work. The planning board is going for a performance bond.

CW referred to subdivision regulations page 26, which defines the bonding requirements.

Nathan Thorsell said that the economy had worsened since 2007. This development will be a demand on already-stretched town services. Nathan Thorsell was concerned that public participation at planning board meetings is poor.

CW said that public participation at this meeting was unusual. CW asked JP to “take license” in condensing the minutes of this public-input period.

JP said that he had heard much public input and many answers from the board. JP was concerned that much of the information from the board, particularly from BM, is wrong. For example, BM talked about a 24-lot proposal. JP has followed this project for a long time, and JP does not remember any 24-lot proposal. JP did remember a 32-unit, multi-family-dwelling proposal; that was AHG’s first proposal. That went first to the ZBA, and the ZBA approved it, but the Pritchards challenged it and won. Then AHG proposed on this parcel a 16-dwelling-unit project, and the planning board approved that project in concept, but the project needed a variance from the ZBA, and the ZBA, not the planning board, denied the project. The number of permissible dwelling units is not under the planning board’s discretionary control; it is under the zoning ordinance’s control. If AHG had proposed 24 lots, the zoning ordinance would not have permitted them. The maximum potential density permissible under the zoning ordinance is 12 dwelling units. That is where the 12-lot figure comes from, not from planning board judgment. The planning board has never said “no” to this applicant.

JP referred to BM’s explanation of bonding as money on deposit and so forth. By statute (RSA 674:36, III, (b)), the type of security must be as specified in the subdivision regulations. The subdivision regulations specify a performance bond. A performance bond is not like money in the bank; it is much more than that. Performance bonds come from surety companies, which investigate the contractor and determine the viability of the project. A surety company protects a contractor from himself, from wishfully taking a risk that the surety company knows, from its diversified business, is not viable. JP referred to CW’s comment that this type of insurance is not risk sharing like automobile insurance. The surety company requires the contractor to make a very substantial and frequently personal commitment to the project.

JP said that the audience had had questions about notice. RSA 676:4, I, (i), says that the board has to give notice and hearing if the board uses its “discretionary judgment.” Notice and hearing are required not just when the board first gets the application. When AHG proposes the condominium covenants, which AHG has not yet proposed, the planning board will have to evaluate them. That evaluation requires the planning board’s discretionary judgment; therefore, the board will have to notify abutters. JP thinks that the planning board is at least skating on the edge of things that require notice. For example, the board said that they would use Louis Berger Engineering Group, not the town highway agent, to supervise the Thompson Road construction project. RSA 231:62 says that the highway agent must have charge of any construction, maintenance, or repair of any town highway. The planning board is thinking about ignoring this state law. That is not an administrative decision. If the board actually goes through with that, then the board must give notice.

JP said that BM had talked about voting final approval on September 6. The planning board does not have the condominium covenants. The condominium covenants are extremely important because they, above all else, will decide the protection of the open space. The neighbors do not want this development to go in, and then learn that the open-space protection has a loophole letting this developer return to the planning board and ask for permission to deviate from the restrictions and do extra building. The neighbors depend on that open space as a buffer. Currently, the neighbors have zero assurance of permanent protection on the open space. The planning board must give notice on the condominium covenants, and the neighbors should be extremely concerned that those covenants protect the open space permanently.

JP was concerned by the board’s talk of approving this project when the condominium covenants do not even exist.

JP referred to Nick Saint Germain’s questions about abandonment. The abandonment question was much disputed, as the 3-2 split decision shows. At issue was whether a conditionally approved application—not an approved application, because the AHG application is conditionally approved—is still under the process of review. The planning board’s majority view was that the abandonment regulation does not apply to out-of-process applications and that AHG’s application is no longer in the process of review. JP said, just look at what the planning board is doing; they are reviewing the application. It is in process. The abutters submitted a letter citing decisive case law, which says, “conditional approval is therefore only an interim step in the process of the board’s consideration.” (Sklar Realty v. Merrimack and Agway, 125 N.H. 321, 480 A.2d 149 (1984)) The planning board majority simply ignored this case law and decided that this application is no longer in process and subject to the abandonment regulation.

JP wanted an answer from the board as to whether the board is going to ignore RSA 231:62 and put Louis Berger Group instead of the highway agent in charge of the Thompson Road reconstruction. Where is the board’s authority to ignore this state statute?

JP referred to BM’s request to strike from the minutes JP’s objection to BM’s address to the abutters on July 5, 2012. BM appeared to be objecting on the narrow technical ground that JP failed to call for a point of order before JP stated his objection. An individual board member clearly has no right to address the public, as BM did, after the board reaches a decision, and the address was a great insult to the abutters.

JP referred to his public input at the July 5 planning board meeting and JP’s discussion of what all of the help from the boards and courts had done to JP’s neighborhood. Now JP wanted to discuss what all of that help had done to the developers themselves. Van Hertel and Alice Goldstein brought their proposals to the planning board at about the same time, approximately 2003. Mr. Hertel got no help and sold eight lots. Mrs. Goldstein got lots of help but has sold only one lot. Mrs. Goldstein’s poor performance is not despite all the help but because of it. What Mrs. Goldstein really needs is buyers, and encouraging her to create properties that are less desirable than the ones that, for example, Mr. Hertel created, is not going to attract buyers.

JP referred to Nathan Thorsell’s comments about economic viability. JP admitted that economic viability is in a gray area, but the subdivision regulations do require a bond, which does relate to the economic viability of a project. Therefore, to say that the planning board is completely unconcerned with the economic viability of a project is not exactly true.

CW closed public input, thanked the public for attending, and said that the board will hear the public at the September 6, 2012, meeting.

AGENDA ITEM 8: Adjournment

BM moved to adjourn the meeting.

GL seconded the motion.

Vote to adjourn the planning board meeting of August 2, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PD, GL, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of August 2, 2012, is adjourned at 8:53 P.M.

Minutes approved: September 6, 2012

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on August 7, 2012, from notes that I made during the planning board meeting on August 2, 2012, and from copies of the two Town tapes that Chairman Clayton Wood made on August 3, 2012.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.