December 5, 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, December 5, 2013

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:04 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; and
Bill Miskoe (BM), planning board member.

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

Zoning board of adjustment (ZBA) members present:
Carole Dodge (CD), ZBA member and chair (arrived at 7:08 PM);
Paul Sherwood (PS), ZBA member and vice-chair;
Pat Heffernan (PH), ZBA member; and
Al Douglas (AD), alternate ZBA member.

ZBA members absent:
Paul Metcalf (PM), ZBA member, and
Chris Smith (CS), ZBA member

Other town officials present: Linda Small, selectman, and Ralph Odell, chair of the master plan committee.

Members of the public appearing before the planning board:
Sybil Bond, 27 Leavitt 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: Agenda Review

CW said that Ralph Odell, chair of the master plan committee, would appear at about 8:00 to 8:30 PM to give an update and to request help on a particular matter for the master plan. CW said that the planning board would help Ralph Odell after the board’s joint meeting with the ZBA.

CW said that the planning board had received notice of a cell tower construction project in Gilford. The board will attend to this matter after the board’s joint meeting with the ZBA. (Editorial comment of recording secretary JP: The planning board forgot to attend to the Gilford project.)

AGENDA ITEM 4: Joint Meeting with ZBA
1. Proposed Amendments to the Zoning Ordinance by the Zoning Board
2. Proposed Amendments to the Zoning Ordinance by the Planning Board

CW opened the joint meeting of the planning board and the ZBA at 7:07 PM.

CW asked each of the ZBA members to identify himself and his office, if any, on the ZBA.

AD said that he is an alternate member of the ZBA and a selectman.

PS said that he is the vice-chair of the ZBA.

CW said that CD had sent the planning board a request (1) that the planning board propose an article for the town meeting warrant designating the ZBA to act as the local building code board of appeals and (2) that the planning board hold a joint meeting with the ZBA to discuss zoning amendments that the ZBA wants to propose. CW said that he had met with CD to discuss these matters.

CD arrived at 7:08 PM.

CW referred to the zoning proposal that he and JP had prepared and distributed to the planning board at the board’s meeting on November 7, 2013. CW wants the ZBA’s evaluation of this proposal.

CW asked CD to discuss the ZBA’s requests for proposed articles for the town meeting.

CD said that she and CW had discussed housekeeping changes. CD also had a concern about the ZBA acting as the local building code board of appeals. At its meeting on November 21, 2013, the ZBA had discussed whether the ZBA should be designated as the local building code board of appeals, and the ZBA needs to discuss this question more. Amending the ZBA’s rules of procedure directing appeals of the building code to the state is another possible way to clarify the appeal process. The ZBA had also discussed converting the ZBA from an appointed board to an elected board. (See RSA 673:1, IV.) The ZBA was split 2-2 on this issue. (Four members—CD, PS, PH, and PM—attended the ZBA meeting on November 21, 2013. CD and PH were for the elected board; PS and PM were against it.) The ZBA wants to revise the zoning definition of “agriculture” because the provision “Home farming is allowed.” is vague as to what “home farming” is.

The ZBA’s request for a town meeting warrant article designating the ZBA to act as the local building code board of appeals:

CW asked what is the ZBA’s position on whether the ZBA should act as the local building code board of appeals.

CD said that the ZBA’s acting as the local building code board of appeals would be difficult because of changes that the state legislature has made to the powers of the local building code board of appeals. (See RSA 155-A:1, IV, and RSA 674:34.) A change to the rules of procedure directing appeals of the state building code to the state may be more appropriate.

BM asked for clarification that the ZBA does not want to act as the local building code board of appeals.

CD and PS said yes, the ZBA does not want to act as the local building code board of appeals.

BM asked whether other towns have a process that works.

PS explained that the law has changed recently. Before one and one half years ago, the local building code board of appeals could grant variances from the building code. Then the state revoked the variance-granting power.

BM asked what is the appeal process in the absence of a local building code board of appeals.

JP agreed with PS; what other towns do is irrelevant because of the major change that the state legislature has made to the review and enforcement of the state building code. (See RSA 155-A:1, IV, and RSA 674:34.) JP said that the state legislature is trying to create an appearance of local control where, in fact, there is no local control. JP explained that, in the absence of a local building code board of appeals or the ZBA acting as such, appeals of the building inspector’s decision go directly to the superior court, not to the state building code review board. The state building code review board is created purely from state statute. (RSA 155-A:10.) Therefore, the state building code review board has only those powers that the state statutes give it. State statutes state only three types of appeals that the state building code review board can hear: (1) appeals of decisions of the state fire marshal (RSA 155-A:11), (2) appeals of decisions of the electricians’ board established under RSA 319-C:4 (RSA 155-A:11-a, I), and (3) appeals of the board of home inspectors established under RSA 310-A:186 (RSA 155-A:11, I). Appeals of decisions of a local building inspector are not among the statutorily authorized appeals to the state building code review board; therefore, the state building code review board cannot hear these appeals. By contrast, state statute (RSA 677:16) does define a right of superior court review of a local building inspector’s decision, ordinarily after review by the designated local building code board of appeals. According to DHB v. Pembroke, 152 N.H. 314, 876 A.2d 206 (2005), a municipality cannot thwart a statutorily defined right of appellate review of a municipal decision by failing to perform some required act leading to the appellate review. Therefore, a municipality’s failure to designate a local building code board of appeals will not thwart the statutory right of superior court review (under RSA 677:16). If a town fails to designate a local building code board of appeals, then the absence of the local building code board of appeals allows the appellant to appeal directly to the superior court.

BM asked whether there were a reason to designate the ZBA as the local building code board of appeals.

CW read RSA 674:34 and said that the appeals board needs professional expertise to perform its function properly under the statute. CW referred to a slide presentation of the New Hampshire Municipal Association on the state building code. The state building code applies to all buildings, and applying it and interpreting it requires more expertise than the ZBA ordinarily uses.

CD said that the state has a list of experts that the state requires on its own state building code review board. (RSA 155-A:10, I.)

PS said that very few ZBA’s in the state would have the professional expertise that the state requires of its own state building code review board.

BM asked whether the ZBA’s acting as the local building code board of appeals would benefit the town.

CD, PS, and PH said no, the ZBA’s acting as the local building code board of appeals would not benefit the town. The ZBA does not have a sufficient number of experts.

The unanimous consensus of both boards was that the planning board will not propose empowering the ZBA to act as the local building code board of appeals.

CD asked for confirmation that, in the absence of a local building code board of appeals, an appeal of the building inspector’s decision is to the superior court, as in the statute (RSA 156:4-c) effective in 1975 (when the town created the building inspector’s position).

JP said that that statute had been repealed but that the current appeal process is the same.

The ZBA’s suggestion that the ZBA be converted from an appointed board to an elected board (RSA 673:1, IV):

CD said that the ZBA had been split 2-2 on whether to convert the ZBA from an appointed board to an elected board. (Four members—CD, PS, PH, and PM—attended the ZBA meeting on November 21, 2013. CD and PH were for the elected board; PS and PM were against it.) CD said that she favors converting the ZBA to an elected board. The proposal was defeated at the town meeting (in 2007) because the proposal was improperly presented. CD said that other people had discussed converting the ZBA to an elected board. An elected board would be more independent.

PH said that the ZBA should be elected. An elected ZBA would be accountable to only the people. The argument that candidates would not run for election is invalid. Getting on the ballot is just as easy as asking the board of selectmen for an appointment.

CW said that he favors an elected ZBA. CW said that, in the past, he had favored the elected planning board. Several town meeting warrant articles have challenged the elected planning board. All have failed. The town voters have been very clear in wanting an elected planning board.

CD said that the elected planning board has been more productive than the appointed planning board was.

PS said that comparing the ZBA to the planning board is not appropriate. The planning board meets regularly, at least once per month, but the ZBA meets only when needed. The ZBA may go months without meeting. The board of selectmen does not influence members. The ZBA can grant exceptions to and variances from the zoning ordinance. PS joined the ZBA shortly after moving to Pittsfield. Probably he could not have been elected to the ZBA because he was not well known. PS did not limit his request to an appointment to the ZBA; he volunteered for whatever was needed. No one has tried to influence PS, and he would pay no attention if anyone ever did try to influence him. The elections would be a popularity contest. The popularity contest would discourage candidates. PS said that the appointment process gives the board of selectmen and the planning board greater freedom to recruit candidates. Elections require more than volunteer spirit; they require passion.

BM asked what would happen if the ZBA were elected and if no one ran.

PH, JP, and PS said that the ZBA itself could appoint members to fill vacancies. (RSA 673:12, I.)

PS asked whether an elected board would have the same membership requirements as the appointed board. For example, could PH, a planning board member, and AD, a selectman, serve on an elected ZBA.

Board members discussed that the membership requirements are the same regardless of whether the ZBA is elected or appointed.

CW said that the electoral process does require “putting yourself on the line.” The problem of finding candidates is the same on the planning board and on the board of selectmen. Elected boards fill their own vacancies.

AD asked for clarification that a person could run for election to the ZBA and to the board of selectmen at the same annual town meeting.

CW said yes.

CD said that people had told her that applying to the board of selectmen discourages them from seeking membership on town boards.

BM said that people who do not want to ask the selectmen for an appointment should not be on the town boards.

JP disagreed with BM and said that, from JP’s personal experience with the appointment and electoral processes, he would prefer to stand for election. JP said that he had been denied appointments.

CW said that the selectmen had denied others besides JP. Appointments are not automatic upon request.

CW expressed concern with the board of selectmen’s exerting influence over the ZBA by appointing selectmen to the ZBA. The board of selectmen appointed LK to the ZBA, and, when the selectmen discovered that LK could not serve because of the multiple-membership restriction on planning board members serving on other boards (RSA 673:7, I, and RSA 673:6, IV), the selectmen appointed another selectman, AD, to the ZBA. The selectmen’s representative to the planning board is important and influential.

AD asked for clarification of the multiple-membership restriction for planning board members as it applies to the board of selectmen.

JP said that two planning board members, including alternates, cannot be on the board of selectmen at the same time. (RSA 673:6, III and IV.)

CW and CD discussed how the ZBA might break the deadlock on whether the ZBA should be elected or appointed. CD said that the deadlock was a reason for tonight’s discussion of the question.

JP said that CS had been absent from the ZBA’s meeting on November 21, 2013, and is absent tonight. CS’s vote would break the deadlock.

CW said that a proposal for an elected ZBA would be more powerful coming from the ZBA itself.

CD said that she will try to have a meeting on December 12, 2013, to resolve the question of whether to propose an elected ZBA.

The ZBA’s request for an amendment revising the zoning definition of “agriculture”:

CW said that the planning board will consider an amendment for a new definition of “agriculture.”

CD explained that the current definition of “agriculture” is problematic because the provision “Home farming is allowed.” is vague as to what “home farming” is. CD added that the provision “on any parcel of at least 2 acres in size” is also problematic.

JP agreed with CD. The provision “on any parcel of at least 2 acres in size” is problematic because farming activities on parcels smaller than 2 acres are not agriculture as defined. JP suggested that using the state’s definition of “agriculture” in RSA 21:34-a, II, would be an appropriate replacement for the current definition of “agriculture.”

PS agreed with JP and said that he had searched extensively for the meaning of “home farming” but had found nothing.

The boards agreed to propose the state’s definition of “agriculture” in RSA 21:34-a, II, as a replacement for the current definition of “agriculture.”

The planning board’s amendment proposal for articles 1, 22, 23 (administration and enforcement), 24, 5, 6, and 7:

CW said that other towns have frequent zoning amendments to stay current with changes that the state legislature makes to the statutes. Pittsfield has fallen far behind. The proposed revision of article 5 describes the establishment, membership, and operation of the ZBA. The planning board’s amendment proposal for articles 1, 22, 23 (administration and enforcement), 24, 5, 6, and 7, defines the administration of the zoning ordinance and is not land use regulation per se. CW said that he hoped that both boards would support this first amendment.

BM said that the planning board needs to be able to propose an elected ZBA.

CW said that he and JP had produced language for the elected ZBA if the ZBA chose to support this change.

PS said that the ZBA’s rules of operation are the same regardless of whether the ZBA is appointed or elected.

CW agreed and said that the new language is simply a change of the first page of article 5.

PS and CD said that the ZBA’s consensus was that the planning board’s first amendment was good.

The planning board’s amendment proposal for article 10, Manufactured Housing:

CW said that the building inspector, Jesse Pacheco, had asked the planning board to propose correcting the building code references in article 10. CW said that article 10 should not have building codes at all and should not have permitting conditions for manufactured housing parks because manufactured housing parks are not permitted in any zoning district. (Zoning ordinance article 2, table 1.)

The boards noted that the proposed definition of “manufactured housing” quotes the state’s definition, RSA 674:31, exactly and explicitly excludes “presite built housing as defined in RSA 674:31-a,” also called modular housing, from the meaning of “manufactured housing.” The intent of article 10, both now and as proposed, is to regulate only mobile manufactured housing. The intent of the zoning ordinance is to treat stationary manufactured housing and presite built housing the same as other single-family dwellings.

The planning board’s amendment proposal for article 16, Parking Regulations:

CW explained that the main feature of the parking-regulations proposal is to waive parking requirements on existing commercial floor area in the Commercial District.

JP said that he had discussed the parking-regulations proposal with building inspector Jesse Pacheco and that, while JP was talking to Jesse Pacheco, PH entered the building inspector’s office. Jesse Pacheco opposes this amendment at this time because Jesse Pacheco thinks that the boundaries of the Commercial District are badly drawn and that, as a result, the waiver will apply where it should not apply. Jesse Pacheco had said that the proper way forward is to correct the boundaries of the Commercial District and then propose the parking-requirements waiver. Jesse Pacheco had said that doing the parking-requirements waiver before correcting the boundaries of the Commercial District could harm the downtown neighborhood.

PH agreed with JP’s account of Jesse Pacheco’s advice. PH added that Jesse Pacheco had pointed out that the Commercial District is, in fact, largely residential. Only eight to 10 businesses exist in the Commercial District.

JP said that he was not sure whether Jesse Pacheco was right or wrong.

The consensus of the boards was that the planning board should investigate the appropriateness of the boundary of the Commercial District.

CW asked JP to meet with him and Jesse Pacheco to investigate this matter.

Summary of the two boards’ zoning proposals and the boards’ actions on them:

1. Converting the ZBA to an elected board: The ZBA will meet on December 12, 2013, and decide whether to request an amendment to make the ZBA elected.

2. Revising the definition of “agriculture”: The planning board will propose an amendment to replace the current definition of “agriculture” with the state’s definition of “agriculture” in RSA 21:34-a, II.

3. Revising articles 1, 22, 23 (administration and enforcement), 24, 5, 6, and 7: The planning board will propose the revision presented on November 7, 2013.

4. Revising article 10, Manufactured Housing: The planning board will propose the revision presented on November 7, 2013.

5. Revising article 16, Parking Regulations, to waive parking requirements on existing commercial floor area in the Commercial District: CW and JP will investigate what changes, if any, must be made to the boundaries of the Commercial District.

BM said that the planning board has little time available to prepare the amendments, to give notice of the hearings, and to hold the hearings.

The planning board agreed to meet on December 19, 2013.

JP said that the planning board’s biggest problem is what to do about the boundaries of the Commercial District.

CW called the joint meeting of the planning board and the ZBA finished at 8:40 PM.

CD moved to dismiss the ZBA from the joint meeting of the planning board and the ZBA.

Vote to dismiss the ZBA from the joint meeting of the planning board and the ZBA: carried 4 – 0 – 0. (Voting “yes”: AD, PH, CD, and PS. Voting “no”: none. Abstaining: none.) The ZBA was dismissed from the joint meeting of the planning board and the ZBA at 8:40 P.M.

PH remained with the planning board’s meeting as a member of the planning board. The other members of the ZBA left the meeting.

AGENDA ITEM ADDED: Meeting with Ralph Odell, chair of the master plan committee

Ralph Odell said that the master plan should have a “community facilities section.” (RSA 674:2, III, (b).) To write this section, the master plan committee needs some people with expertise in building inspection in order to evaluate the condition and possible future uses of municipal buildings. Ralph Odell said that a small committee, to be called the facilities-needs committee, of two or three people would be enough. Ralph Odell said that a space-needs committee had existed, but Ralph Odell can find no report of that committee. Ralph Odell said that he would like to be on the facilities-needs committee. Ralph Odell said that the building inspector could help. Ralph Odell said that the facilities-needs committee would need the board of selectmen to authorize the committee’s existence. Ralph Odell would like to have results from the committee by March or April 2014.

BM said that he has expertise in building inspection. BM said that he works for insurance companies inspecting buildings. BM offered to join the facilities-needs committee.

CW asked Ralph Odell whether the master plan committee could do the building-inspection project with resources already at the planning board’s disposal and not go to the board of selectmen to ask for additional help.

Ralph Odell said that the master plan committee may be able to do the building-inspection project with the planning board’s own resources.

AGENDA ITEM 5: Approval of the November 7, 2013 Meeting Minutes

BM moved to approve the minutes of November 7, 2013, as written in draft.

PH seconded the motion.

Discussion:

JP asked for the following change:

Agenda item 6, page 15: change “John Arnold said patients” to “John Arnold said that patients”.

Vote to approve the minutes of November 7, 2013, with the change that JP requested: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

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

There was no selectman’s report because EN was absent.

AGENDA ITEM 7: Members’ Concerns

Members’ concern 1: JP’s concern with whether he should countersign the Summerford subdivision plat.

JP (the planning board secretary) said that the subdivision regulations require the planning board secretary to countersign the chair’s signature on approved plats. (Subdivision regulations section 5, F, 3, paragraph 5, sentence 1. Also see RSA 674:37.) JP asked for the board’s guidance on whether he or someone who sat for the application should countersign the Summerford subdivision plat in view of the fact that JP was disqualified from the Summerford case.

CW said that he thought that JP could countersign. CW explained that the requirement for a countersignature is a check to avoid the chair’s signing in error and is very important.

PH asked for JP’s analysis of the question.

JP said that his countersigning appears to be lawful because countersigning is an administrative act and because RSA 676:4, I, (i), excludes administrative acts from judicial disqualification. Nonetheless, JP thought that the countersigner should be a fair person because the countersigner’s function is to check for errors that the chair may make. For that reason, JP wants the four board members who decided the Summerford case—EN, PH, CW, and PD—to decide JP’s question. But EN and PD are both absent tonight. JP cited the subdivision approval of Hill Top Drive, where LK was the planning board chair and was disqualified. The vice-chair, Tom Hitchcock, chaired the case and endorsed the plat.

CW said that Wayne Summerford had not submitted the final plat for endorsement and recording, so there was enough time for the four board members to decide JP’s question at the December 19, 2013, meeting.

Members’ concern 2: BM’s concern with Sybil Bond’s letter of November 19, 2013, to the board of selectmen, the planning board, and the ZBA.

BM referred to Sybil Bond’s letter of November 19, 2013, to the board of selectmen, the planning board, and the ZBA “regarding the storing and repairs of truck/cars on the property of 30 Leavitt Road.” BM said that he had driven by the site on last Monday and had seen no evidence of the activities that Sybil Bond’s letter described.

Sybil Bond said that, when the residents moved in to 30 Leavitt Road, they had about 10 cars parked in the driveway and that some of the cars had “for sale” signs on them. The cars left. The residents at 30 Leavitt Road have since taken steps to make cars less visible. They have erected a fence and have moved cars around to avoid the cars’ being conspicuous.

Sybil Bond said that Pittsfield’s zoning laws should be clear and definitive but that they are not. Sybil Bond said that the planning board and the ZBA should communicate more.

BM suggested that Sybil Bond join the master plan committee.

JP said that 30 Leavitt Road is a split lot between the Suburban (zoning) District and the Light Industrial/Commercial District. The lot has its access on Leavitt Road, and this access determines the district from which the vehicles are being sold, if the vehicles are, in fact, being sold, because this access determines how the vehicles are moving in and out of the property. To prove the sale of cars, the town must track titles through the NH Department of Transportation. The police are investigating whether cars are being sold.

Sybil Bond said that she is concerned about possible environmental harm, such as oil spilling, in addition to possible zoning violations. Sybil Bond said that her neighborhood is residential and that a quiet, residential character is important to the neighborhood residents.

CW recommended that Sybil Bond look at the selectmen’s minutes to see what the selectmen are doing. The board of selectmen has charge of enforcing the zoning ordinance. CW said that the town boards are trying to work together more. CW said that Pittsfield’s volunteerism is higher than in most towns.

PH said that the state requires that any person selling a certain number of motor vehicles within a certain time period must have a dealer’s license. (RSA 261:103-a, I.)

JP said that the license requirement is for selling five or more vehicles in a 12-month period. (RSA 259:89-a.)

PH said that more than five vehicles had moved in and out of 30 Leavitt Road.

AGENDA ITEM 8: Public Input

There was no public input. Sybil Bond left the meeting before the public-input period began. No other members of the public were present.

AGENDA ITEM 9: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of December 5, 2013: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.) The planning board meeting of December 5, 2013, is adjourned at 9:20 P.M.

Minutes approved: December 19, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on December 7, 2013, from notes that I made during the planning board meeting on December 5, 2013, and from a copy that Chairman Clayton Wood made on December 6, 2013, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary