DATE: Thursday, December 6, 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; Pat Heffernan (PH), vice-chair; Gerard LeDuc (GL), selectmen’s ex officio member; Bill Miskoe (BM); Clayton Wood (CW), chair; and Peter Dow (PD), alternate.

Members absent: Larry Konopka (LK), selectmen’s ex officio alternate.

Other town officials present: Building inspector Jesse Pacheco.

Members of the public appearing before the planning board: Carol Lambert, 83 Governor’s Road, Pittsfield; Jennifer McCourt, 42 Ezekiel Smith Road, Henniker, NH, engineer for AHG Properties, 46 Strawberry Hill Road, Bedford, NH; Dana Sargent, 11 Thompson Road, Pittsfield; Larry Stockman, 1078 Province Road (Route 107), Gilmanton, NH; Andrew Sullivan, 24 Eastman Avenue, Bedford, NH, attorney for AHG Properties.

“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 referred to Agenda Item 5, Darin Greenleaf’s request for exemption from site plan review. CW has deferred this request until probably January. The request for exemption had claimed that the use was an “indoor flea market,” but the code enforcement officer and building inspector, Jesse Pacheco, denied this zoning classification. Darin Greenleaf can appeal the denial to the zoning board of adjustment (“ZBA”) as an appeal of an administrative decision (RSA 674:33, I, (a)), or he can apply to the ZBA for a special exception (RSA 674:33, IV) for retail sales in the Light Industrial/Commercial District.

CW said that he and building inspector Jesse Pacheco are trying to devise a structured procedure that sends all prospective applicants to the building inspector for initial determinations of zoning classifications and conformance. Prospective applicants for change of use should not bypass the building inspector and go to members of the planning board or ZBA. If the prospective applicant does not agree with the building inspector’s initial determination, then the prospective applicant’s next step is to go to the ZBA for either an appeal of an administrative decision, a variance, or a special exception, whichever is appropriate to the proposed change of use. (RSA 674:33, I, (a); RSA 674:33, I, (b); or RSA 674:33, IV.) The planning board should not be involved in this initial determination.

CW referred to the lot-line adjustment of Steven and Melissa Gendron and Peter and Katherine Treem, which the board has scheduled for December 20, 2012. The applicants have requested a continuance to January 17, 2013. CW will discuss the continuance during the members’ concerns period.

AGENDA ITEM 4: Approval of Minutes of November 15, 2012

GL moved to approve the minutes as written in draft.

PH seconded the motion.

Discussion:

BM asked that the notation “unexcused absence” be removed next to his name in the roll call. BM said that he had missed the meeting because CW had not notified BM at BM’s new e-mail address even though BM had given CW the new e-mail address.

JP asked for the following change:

Agenda Item 3, page 2, in two places: change “zoning proposal” to “proposed zoning amendment”.

Vote to approve the minutes of November 15, 2012, with the changes that BM and JP requested: carried 4 – 0 – 1. (Voting “yes”: JP, PH, GL, and CW. Voting “no”: none. Abstaining: BM.)

AGENDA ITEM 5: Request for Waiver from a Change Of Use Site Plan Review by Darin Greenleaf (Map R38, Lot 12)

This agenda item is deferred to the members’ concerns period.

AGENDA ITEM 6: Appointment with AHG Regarding the October 11, 2012 Letter from the Planning Board Requesting Information on the Stage Coach Condominium Subdivision (Map R44, Lot 1)

JP left the board and sat in the audience because his mother abuts the Stagecoach Station project.

PD sat in JP’s place.

CW explained that AHG had an appointment with the planning board regarding the letter that the board had sent to AHG on October 11, 2012. The board is not holding a hearing; the board is hearing input from only AHG. Board members may ask questions of AHG and will direct their questions to Andrew Sullivan (AHG’s attorney) or Jennifer McCourt (AHG’s engineer). The board will not hear other members of the public during this agenda item.

CW suggested that the board go through AHG’s material piece by piece to be sure of covering each of the points of the October 11, 2012, letter. CW suggested addressing the plat first and then proceeding to the text documentation.

Andrew Sullivan said that there had been a flurry of e-mails today, so he wanted to be sure that board members had the most recent copy of what AHG is submitting. AHG submitted documents first on November 29, 2012, and then submitted revisions on December 3, 2012. The documents are (1) the condominium declaration, (2) the agreement and release for Thompson Road, and (3) the restrictive covenants on the open space (that is, the conservation restriction). Attorney Sullivan presented a letter dated December 5, 2012, from town attorney Laura Spector-Morgan saying that she had reviewed all of these documents and had found them acceptable to her.

CW said that the board had gone through Central New Hampshire Regional Planning Commission’s (“CNHRPC”) review of Stagecoach Station and had sent AHG a letter addressing CNHRPC’s concerns. AHG responded last week. There has been a “dynamic exchange” between AHG, Matt Monahan of CNHRPC, and the town attorney, Laura Spector-Morgan, and the documents changed during the course of the exchange. The board will not make a final decision tonight. The board intends to make sure (1) that the board has all of the information, (2) that all board members have the same information, and (3) that the board has time to absorb the information.

Jennifer McCourt addressed the minor plat-review issues of the board’s October 11, 2012, letter in respect to sheets 3 and 4. Jennifer McCourt said that she had made corresponding revisions to sheets 3 and 4.

Jennifer McCourt referred to plat sheet 3 and said that she had added the conditions of the planning board and the zoning board of adjustment.

Jennifer McCourt said that she will not label the island of the cul-de-sac as common area. She said that labeling the island of the cul-de-sac as common area is not necessary because the island is part of Stagecoach Road, which is already labeled as common area.

Jennifer McCourt said that she had stated on the plat the acreages of all of the common areas.

Jennifer McCourt referred to plat sheet 4 and said that she had labeled Thompson Road.

Jennifer McCourt addressed the major plat-review issues of the board’s October 11, 2012, letter.

Jennifer McCourt said that, on plat sheet 3, she had removed the driveway of Lot 1P from the setback yard.

Jennifer McCourt referred to the matter of drainage onto Sargent land and said that the Stagecoach Station project will not increase the amount of water flowing to the state culvert onto Sargent land. Jennifer McCourt has added to the plat the deed reference for the Sargent purchase. (M.C.R.D. Book 2049, Page 244.) The Sargent deed, in turn, references the state flowage easement. (M.C.R.D. Book 765, Page 321.) AHG will act in place of the state or the town and use the state or town authority to replace the current culvert, which is in bad condition. The NH Department of Transportation (“DOT”) had required AHG to replace the culvert. Jennifer McCourt said that, in order to receive the alteration-of-terrain permit, AHG had had to prove to the NH Department of Environmental Services (“DES”) that the Stagecoach Station project would not increase the flow through the state culvert. Jennifer McCourt said that Stagecoach Station would actually reduce the flow through the state culvert.

BM asked whether the replacement culvert would be the same size as the current culvert.

Jennifer McCourt said yes.

BM asked whether the construction would change the drainage area leading through the culvert.

Jennifer McCourt said no.

BM asked whether any drainage from Stagecoach Station would go to Thompson Road.

Jennifer McCourt said no.

BM asked whether pavement on Thompson Road, which is now unpaved and undeveloped, would change the drainage concentration time for a particular rainfall.

Jennifer McCourt said she had done drainage calculations, and the purpose of the infiltration basins, detention ponds, and infiltration trenches up above is to accommodate drainage concentration on Thompson Road.

BM asked for clarification that there are detention structures within the first 400 feet of Thompson Road.

Jennifer McCourt said no.

BM said that the flow will be more concentrated if Thompson Road is paved and if there are no detention structures.

Jennifer McCourt said that Thompson Road is not the only source of drainage to the state culvert. “What will happen is that maybe you will have a hair more water going there in the first few minutes, but then after that, it equals itself out because you are changing the hydrograph on the top part of the water.”

BM agreed that the drainage area does not change, but BM said that the flow rate might change. BM referred to conditions 6 and 10 of the DOT driveway permit:

Driveway permit condition 6: “Applicant [board of selectmen] agrees to indemnify, save and hold harmless the Department [of Transportation] from liability for all damages to persons or property, which arise out of the exercise of the rights granted by this permit. This clause shall include, but not be limited to, liability resulting from any increase or change in the flowage of water as a result of the proposed construction. Applicant further agrees to defend any claim or suit brought against the Department arising out of the rights granted by this permit.”

Driveway permit condition 10: “Applicant [board of selectmen] must provide suitable drainage structures and facilities of adequate size to prevent ponding of any surface drainage within the highway right of way limits. Furthermore, Applicant must save and hold the State harmless from any liability for any and all damages to any persons or property as the result of any flowage passing from or through the Applicant’s property or as the result of any flowage caused by the performance of any work in connection with this permit. This permit relates solely to the use of the State right of way and is not determinative of any rights of flowage between private landowners and the Applicant.”

BM said that these conditions made clear that there is a demand on AHG to remedy any negative impact on other people’s property.

Jennifer McCourt said that conditions 6 and 10 relate to and only to constructing or maintaining the system as designed.

BM disagreed and read condition 6 of the driveway permit.

Jennifer McCourt said that, according to her best estimates, the proposed design will not increase the flow through the state culvert. The flow through the culvert will actually decrease.

CW asked, “when you got the state permit, was that part of their scrutiny on the permit also?”

Jennifer McCourt said yes.

CW confirmed that the culvert onto Sargent land remains the state’s responsibility.

Jennifer McCourt said yes. Culverts on Thompson Road outside of the state right-of-way are the town’s responsibility, which will become AHG’s responsibility by way of the condominium covenants. Jennifer McCourt said that the state flowage easement has no restrictions to it.

BM asked for confirmation that the state flowage easement had no restrictions on volumetric flow.

Jennifer McCourt said yes.

CW said that the new plat had much new detail that was not on the plat that the planning board discussed in 2007.

Jennifer McCourt agreed and said that the new detail derived from the subdivision-approval condition requiring AHG to get an NH DOT driveway permit.

CW said that the planning board in 2007 overlooked the potential impact to Sargent land because the now-new detail was absent in 2007. The driveway permit has prompted abutters to raise other questions that the board had never considered.

CW asked how the stone wall had gotten relocated. The abutters did not know that the stone wall would be moved. CW acknowledged that the plans conditionally approved in 2007 showed the stone wall moved.

BM said that he had thought that the stone wall would be moved by agreement between AHG and abutter Kathy Bleckmann, in the same way as AHG obtained an easement from the Stockmans. BM has since learned that Kathy Bleckmann knew nothing about the movement of the stone wall.

Jennifer McCourt said that she had never said that there would be any agreement between AHG and Kathy Bleckmann to move the stone wall. Jennifer McCourt said that the surveyor had determined that the right-of-way, as it was dedicated to the Town of Pittsfield, is from the center line of the road. As is typical with described right-of-ways, the stone wall generally never falls where the right-of-way is. Under NH RSA, if the stone wall is within the highway right-of-way, then AHG Properties can relocate the stone wall to the actual right-of-way boundary.

BM asked how did the surveyor, Jacques Belanger, determine where the legal center line of the highway is.

Jennifer McCourt said that she is not a surveyor and that she would have brought Jacques Belanger and his step-by-step research if she had known that this question would arise. The stone wall separation is less than two rods (33 feet). Jacques Belanger had a previous survey of the Stockman land. Jennifer McCourt said that she thought that Jacques Belanger had used the center line between the stone walls as the center line of the highway.

CW asked where did the plans specify the pavement composition of Thompson Road and Stagecoach Road?

Jennifer McCourt said that the road cross sections are on sheet 12.

CW asked about the building sites and noted that they are not all the same.

Jennifer McCourt agreed that the building sites are not all the same. She explained that each of these building sites is a limited common area, which, relative to use, is functionally a lot for one building.

CW asked AHG’s representatives to discuss bonding.

Jennifer McCourt read from the planning board minutes of March 1, 2007, as follows:

“The issue of road bond and restoration bond was discussed in detail between the Board and Atty. Sullivan. Jennifer McCourt related they would not be looking for building permits until the bond was set. The issue of bonding private property, restoration bond, and road completion was discussed as well as water supply for fire purposes and sprinkler system and T-intersection as suggested by Tony Puntin. The Board discussed also what would happen if for some reason, condo association did not succeed.”

Jennifer McCourt referred to and read from the cost estimates from January 29, 2007, that she submitted to the planning board on November 29, 2012. Jennifer McCourt said that, in 2007, AHG had not intended to bond anything other than the Thompson Road-Route 107 intersection area, and that is why AHG is proposing a $78,277 bond to cover that work only. $50,000 of this bond goes to NH DOT, and the remaining $28,277 goes to the town.

BM disagreed. $50,000 is to cover the NH DOT’s requirements. The town has its own bonding requirements for the rest of Thompson Road. The $78,277 bond estimate is totally inadequate. BM got cost estimates from a road-construction contractor who has done work for BM. That road-construction contractor estimated $100 per linear foot as a minimum. BM talked to a highway agent in another town and got an estimate of $125 per linear foot. BM said that PH got an estimate from Frank Merrill Construction of $125 to $150 per linear foot. The Thompson Road length is 400 feet. 400 feet at $125 per foot is $500,000. [Editorial comment of recording secretary JP: 400 multiplied by 125 is 50,000, not 500,000.] BM read from the subdivision regulations section 7, A, 2), (a) and (b):

“the Planning Board shall require that a Developer Improvement Agreement Form be signed…”

“Such performance bond shall comply with all statutory requirements and shall be satisfactory to the Planning Board and Town Counsel, as to form, sufficiency and manner of execution…”

BM said that the DOT bond is separate from the town’s own bonding requirements. The cost of the road is about $400,000 different from AHG’s bond proposal.

Jennifer McCourt said that the planning board approved AHG’s bond concept and AHG’s cost numbers in 2007.

BM said that that approval was for materials only, not construction or inspection.

Jennifer McCourt said that inspection is a separate cost and that her cost estimates came from the NH DOT in 2007.

BM said that the cost estimate was only for materials.

Jennifer McCourt disagreed.

BM said that the board had to require an appropriate bond.

Jennifer McCourt said that the bond that BM was discussing was for the town to finish Thompson Road, but the town will not finish Thompson Road because Thompson Road is a class VI highway. The town would only stabilize the road enough to give access to the Sargents.

BM said that Jennifer McCourt cannot decide what the town would do and that the purpose of a performance bond is to guarantee performance.

Andrew Sullivan said that Thompson Road would remain a class VI highway if AHG defaulted on its construction obligations.

BM said that the planning board is obliged to ensure that AHG does not create a nuisance with AHG’s work on Thompson Road. The subdivision regulations require a performance bond for any work on town land. The town will not accept a $78,277 bond and give $50,000 to the NH DOT, leaving $28,277 for the town’s security for 400 feet on Thompson Road.

CW said that town attorney Laura Spector-Morgan had said that Stagecoach Road must be bonded too. CW said that the $78,277 bond did not seem to make sense. CW said that the board must focus on the Developer Improvement Agreement.

Andrew Sullivan said that the condominium association is responsible for Thompson Road and that the town does not want to be responsible for Thompson Road even though it is a town highway. Furthermore, Stagecoach Road is a private road, so the town cannot have any responsibility for it. The planning board and AHG never discussed or suggested that AHG would bond the interior private road.

CW disagreed. Stagecoach Road must be bonded. If AHG defaults, then the town will have to secure the development site.

Jennifer McCourt repeated that AHG will not ask for any building permits without first either finishing or bonding Stagecoach Road. Thus AHG does not need to bond Stagecoach Road in order to build it.

CW asked what would happen if AHG sold the property.

Jennifer McCourt said that AHG will not sell the property without first building Stagecoach Road. AHG said in 2007 that AHG would not bond Stagecoach Road, and the planning board conditionally approved Stagecoach Station on that basis.

CW said that the minutes may be clear that AHG said that they would not bond Stagecoach Road, but such bonding may be a requirement of the subdivision regulations. The board must decide what does have to be bonded. The board should meet with Louis Berger Group to get a good number for construction cost. The bond will have to meet the requirements of the subdivision regulations and the state RSA.

BM asked whether the town had enough money in escrow to pay Louis Berger Group.

PH said that the town had $4,100 in escrow.

CW said that he was concerned with the infrastructure. Developers in Pittsfield have a bad record of going bankrupt. CW said that the requirement for bonding or finishing the infrastructure before issuing building permits did reduce the town’s risk. The town needs to have two bonds, one for Thompson Road, and one for the state.

Andrew Sullivan said that AHG was proposing two bonds.

CW said that he will contact Louis Berger Group.

Andrew Sullivan confirmed that AHG will provide only two bonds: One for the DOT and one for whatever Thompson Road requires. AHG will not bond other infrastructure.

Jennifer McCourt said that AHG will build all of the infrastructure before it requests any building permits.

Andrew Sullivan addressed BM’s concerns about the stone wall bounding Thompson Road from Kathy Bleckmann’s land. Andrew Sullivan said that the stone wall has always been and still is within the highway right-of-way. There is no need to notify a person whose land is not being disturbed.

Andrew Sullivan said that the DOT flowage easement allows whatever water flow there is to go through the state culvert.

Andrew Sullivan said that AHG is not doing or expanding anything that is not in place or historically allowed.

CW said that the particular volume through the culvert is not necessarily the critical thing; the flowage easement does not address volume. If AHG makes a change in the flow, even if the flow remains within the current volume, then AHG must address the results of the change. AHG is saying that her studies have shown that there will be no change.

Andrew Sullivan agreed with CW and said that CW’s explanation is why AHG conforms to conditions 6 and 10 of the DOT driveway permit.

BM said that, according to the conditions 6 and 10, the driveway permit applicant must hold the DOT harmless for damage to other people’s property regardless of whether the roadwork is done to the specifications of the driveway permit. A person sustaining damage could sue the person causing the damage, and the person causing the damage would not be the DOT.

Andrew Sullivan disagreed. The conditions say that the developer could be liable to the DOT, not liable to private property owners. The sole purpose of the conditions is to ensure that the developer does the roadwork according to the specifications of the driveway permit.

BM referred to the stone wall bounding Thompson Road from Kathy Bleckmann’s land. If the stone wall is within the right-of-way, and if it has historically been there, then it may have rights somehow similar to “squatter’s rights.” BM thought the stone wall’s presence at one place might give it a right to remain there even if the stone wall is within the right-of-way. BM asked on whose authority is AHG moving the stone wall.

Andrew Sullivan said that a private party cannot acquire prescriptive rights in government property. Andrew Sullivan said “the statute” allows AHG to move the stone wall within the right-of-way.

BM asked whether the town would have to give permission to move the stone wall.

Jennifer McCourt said that the stone wall movement was shown on the conditionally approved plan and that the selectmen know about it too. In addition, the state law gives AHG every right to move the stone wall to the highway boundary.

BM asked again on whose authority is AHG moving the stone wall.

Andrew Sullivan said that Jennifer McCourt had answered the question: on the authority of “both the town approval and the state statute.”

PD asked whether the town would have to hold a hearing in order to maintain a class VI highway.

BM said that maintaining a class VI highway one time obligates the town to continuous maintenance.

PD said that, if the town were going to maintain the class VI highway, then the planning board would have to hold a hearing on the matter.

BM repeated that he had thought that the conditional approval of 2007 included Kathy Bleckmann’s agreement to move the stone wall. But Kathy Bleckmann did not even know about the stone wall movement.

Andrew Sullivan said that AHG cannot ask permission from someone who has no legal authority to grant or deny the permission.

CW called a recess at 8:25 PM.

The board reconvened at 8:30 PM.

Andrew Sullivan referred to the text documentation—(1) the condominium declaration, (2) the agreement and release for Thompson Road, and (3) the restrictive covenants on the open space (that is, the conservation restriction)—that he had submitted on November 29 and December 3, 2012. The revision corrected minor typographical errors, but the main change is to make the developer responsible for maintaining the improved section of Thompson Road. The declaration of condominium will refer explicitly to the DOT driveway permit to avoid any ambiguity. Both the declaration and the release agreement will refer to the DOT driveway permit. Andrew Sullivan read the letter dated December 5, 2012, that town attorney Laura Spector-Morgan wrote approving all of these documents:

“Dear Andy,

Thank you for all of your work in finalizing the various documents related to the Stage Coach Station Condominium. I have reviewed the Declaration of Stage Coach Station Condominium, the Agreement and Release related to Thompson Road, and the Declaration of Restrictive Covenants relating to the open space area, and these documents are all acceptable to me, subject to the minor comments provided to you by Matt Monahan.”

Andrew Sullivan referred to section 2.10 of the Stagecoach Station declaration, defining “Common Expense.” Typically, “Common Expense” means expenses on property that the condominium owns, but the definition of “Common Expense” under the Stagecoach Station declaration includes the improvement and maintenance of Thompson Road. The town will have no responsibility for the improvement or maintenance of Thompson Road.

BM disagreed. The town is responsible for the improvement of Thompson Road.

Andrew Sullivan clarified that the condominium declaration specifies what the developer’s responsibilities will be.

CW referred to section 12.6 of the condominium declaration, which says that “under no circumstances” may the condominium association reduce its obligations to improve or maintain Thompson Road.

CW referred to the declaration of restrictive covenants (that is, the conservation restriction) and objected to the phrase “as amended from time to time.” The subdivision regulations require a permanent conservation restriction, and an amendable conservation restriction is not permanent. CW asked that the phrase “as amended from time to time” be removed. CW asked Andrew Sullivan to explain the amendment procedure.

Andrew Sullivan said that the property owner takes the plan to the planning board and requests an amendment. The board looks at the rules. If the board does not like the amendment, then the board denies the amendment.

CW said that the board cannot change the open space. The open space is the basis of the special exception from dimensional requirements.

Andrew Sullivan said that there is always a way to change something. The restriction is just saying that nothing is changed unless it is changed. The town does not have to grant the amendment.

Jennifer McCourt said that the condominium association might want to build something in the open space that is not planned in the open space now. For example, the condominium association might want to build a gazebo to watch birds. If the provision for amendment were removed, then the association would never be able to build the gazebo.

CW said that he thought that changing the conservation restriction would require an act of the state legislature. (RSA 674:21-a.)

Andrew Sullivan disagreed. The planning board would have the authority to amend the conservation restriction. The open-space restriction restricts what is deemed to be open space.

CW disagreed. Changing a conservation restriction is almost impossible.

Andrew Sullivan agreed. Changing a conservation restriction is almost impossible but not impossible. The conservation restriction should not be so unchangeable that the restriction is actually detrimental to the purpose of the open space.

Jennifer McCourt said that a natural disaster might make the condominium association need to clear downed trees.

Andrew Sullivan reminded the board that the town attorney had approved this particular language of the conservation restriction.

CW said that he knew that the town attorney had approved the conservation restriction, but that amendments and permanence still seemed to conflict with each other.

PD said that he did not understand the reason to include the phrase “as amended from time to time.”

CW summarized that the board had the declaration of condominium and the conservation restriction. The board is working on the Developer Improvement Agreement.

CW referred to the waiver of maintenance liability on a class VI highway, also known here as the “agreement and release.” (RSA 674:41, I, (c), (1) and (3).)

Andrew Sullivan said that he had added reference to the NH DOT driveway permit.

CW said that the waiver of maintenance liability on a class VI highway was between AHG and the board of selectmen. CW said that he would consider whether the Thompson Road bonding should be part of the waiver of maintenance liability on a class VI highway.

Andrew Sullivan referred to the $50,000 in the waiver. This reference is intended as a reference to the DOT driveway permit.

PD said that putting the Thompson Road bond in the waiver of maintenance liability on a class VI highway makes no sense.

PH referred to the common area utility system and the potable water system. (Section 3.55 of the condominium declaration.) What will have the fire alarms? The individual houses or just the infrastructure buildings?

PD said that the utility building will be the control center of the alarm system and will have the telephone connection to notify the fire department. Each house will have an alarm connected to the central control.

Andrew Sullivan agreed.

CW said that he had an action list to work on. The board will prepare for a compliance review to determine whether AHG has satisfied the conditions of approval. CW reviewed details of the compliance review

Andrew Sullivan asked for confirmation that the planning board wanted the Developer Improvement Agreement completed and approved before the compliance review.

CW said yes. CW referred to subdivision regulation section 7, A, 2), (a).

Jennifer McCourt said that the selectmen will want to know the amount of the bond that the planning board will require. She asked to be invited to CW’s meeting with Louis Berger Group.

CW agreed.

BM said that the planning board should be able to determine the bond amount by December 20, 2012. BM asked whether there were any unresolved issues remaining between AHG and either the planning board or the zoning board of adjustment.

Jennifer McCourt said that AHG had either satisfied or was working on every condition of both boards.

Andrew Sullivan asked whether the planning board would establish the bond amount.

BM said yes.

Andrew Sullivan asked whether AHG could challenge Louis Berger’s bond estimate.

CW said that the board would meet that issue when it arose.

AGENDA ITEM 7: Selectman’s Report – Gerard LeDuc, Selectman Ex Officio

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

GL said that budgeting was going as scheduled. The selectmen mostly agree on the budget. A group of abutters to Stagecoach Station will meet with the town attorney and Matt Monahan to discuss the driveway permit.

JP said that, on November 27, Larry Konopka had said that Larry Konopka, Matt Monahan, and probably CW would meet with the abutters to answer the abutters’ questions. Larry Konopka had said that the selectmen understood what they were doing when they signed the driveway permit and could answer questions, but that asking the selectmen to answer questions on the spot was not fair.

GL said that Larry Konopka will run the meeting but that the town attorney and Matt Monahan will answer all of the questions.

JP asked why GL could not explain a vote that he had already cast.

GL said that he chose to let the town attorney and Matt Monahan explain it.

PD asked whether the meeting would be a public meeting.

CW said that he had heard that the meeting would happen on January 15, 2013. The abutters and AHG will be notified. CW plans to attend. CW will notify the planning board, and CW recommends that all of the planning board members be there.

BM asked whether the abutters were trying to change the language of the DOT driveway permit.

GL said that the meeting would be just to answer the abutters’ questions.

AGENDA ITEM 8: Members’ Concerns

CW said that the board should provide a comfortable and respectful place for JP to sit and take notes when JP is disqualified.

PD said that he would be absent from the December 20, 2012, meeting.

JP said that the board would have to meet on December 20, 2012, to open the hearing for Steven and Melissa Gendron and Peter and Katherine Treem, and then vote to continue the hearing to a later date.

AGENDA ITEM 9: Public Input

Carol Lambert said that AHG’s presentation showed how Andrew Sullivan is untrustworthy. When CW had asked how a permanent conservation restriction could be amendable, AHG said that she might want to build a gazebo. Carol Lambert read from town attorney Laura Spector-Morgan’s e-mail to Andrew Sullivan (of August 14, 2012, at 9:06 AM and part of e-mail dialog between Andrew Sullivan and Laura Spector-Morgan from August 13, 2012, at 4:33 PM to August 14, 2012, at 2:11 PM):

“Normally, I would have no problem with proposed language that allows the planning board to approve an amendment; however, in this case, where the area is designated open space, both RSA 674:21 [sic, RSA 674:21-a] and the case of Simpson Dev. Corp. v. Lebanon, 153 N.H. 506 (2006) make it clear that the planning board has no authority to permit such an amendment because the designation of open space is the equivalent of a creating a conservation easement on the property. Since the planning board lacks that authority, it would seem to only lead to confusion to put language in here suggesting that the planning board can approve an amendment to allow building in the open space area.”

Carol Lambert said that Andrew Sullivan knew of Laura Spector-Morgan’s e-mail and that he had said in e-mail correspondence to Laura Spector-Morgan that he wanted to keep a back door open on the conservation easement. Obviously, Andrew Sullivan still wants to keep that back door open, and he kept it open dishonestly because he knew that the regulations prohibit back-door amendments. Making this developer conform to every detail of the regulations is crucial.

Carol Lambert said that Jennifer McCourt’s assessment of the drainage into Sargent land was laughable.

Carol Lambert said that AHG will sell the property and that the town will not be able to enforce the promises that AHG is making.

BM said that the promises would transfer with the sale.

Larry Stockman said that he was very upset with AHG. AHG has made the Stockman property unmarketable, and Andrew Sullivan sits and laughs about it. AHG is untrustworthy. AHG should have justified the movement of the stone wall before the selectmen gave them a driveway permit. Larry Stockman still wants to know why the selectmen applied for a driveway permit on AHG’s behalf. Larry Stockman wants to know how a private developer, such as AHG, can work on a town highway. Larry Stockman does not believe Jennifer McCourt’s statement that paving the road will not send more water to the state culvert to Sargent land. AHG is untruthful.

Dana Sargent does not believe Jennifer McCourt’s statement that paving the road will not send more water to the state culvert to Sargent land. The water will harm the Sargent land.

Larry Stockman said that he had much personal experience with the drainage situation on Thompson Road. The pavement will make the drainage much worse.

JP, speaking from the audience, referred to the stone wall movement and Andrew Sullivan’s statement that state law allows AHG to move the stone wall. Andrew Sullivan did not cite the state law allowing AHG to move the stone wall. If JP had been sitting for the AHG case, then JP would have asked Andrew Sullivan to cite the law. The stone wall issue has existed for a while, and AHG should have been prepared to cite the law. AHG should also have been prepared to say how she derived her survey. Anyone can say that state law allows anything. Previously, JP had addressed the stone wall issue and had cited both case law, Hoban v. Bucklin, 88 N.H. 73, 184 A. 362 (1936), and New Hampshire’s preeminent treatise on road law, A Hard Road to Travel (2004 edition), page 50. Both the case law and the treatise say that stone walls supersede the ancient layout record.

JP referred to the conservation restriction. JP appreciated that two board members objected to the “as amended from time to time” language. JP was troubled that more board members did not object.

JP referred to the condominium covenants. The board seems to think that the “under no circumstances” language of paragraph 12.6 is strong protection. No board member questioned how a private covenant could lawfully circumvent the driveway-permit statute (RSA 236:13), which says that any conflict with the driveway permit is unlawful. It would have been nice if some board member had cited this statute and asked how a private covenant can supersede a state law.

JP referred to the bonding proposal and AHG’s refusal to provide bonds for street work or infrastructure prior to the final approval of their plat. JP said that the board had discussed this issue earlier this year and that two statutes are involved: RSA 676:12, which requires bonding prior to issuance of building permits, and also RSA 674:36, III, (b), which requires bonding prior to subdivision approval.

JP echoed the sentiments of the other abutters: AHG is untrustworthy. JP referred to and disagreed with BM’s statement that AHG’s promises would transfer with the sale of the property. This transfer will not happen if the promises are unlawful. If the condominium covenant purporting to relieve the selectmen of their responsibilities under the driveway permit is unlawful, then the covenant will not transfer to the buyer no matter how wonderful the covenant sounds.

JP said that he understood that the board’s deliberation of the compliance review was still in its infancy, and that he hoped that the board would answer and resolve his concerns.

AGENDA ITEM 10: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of December 6, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of December 6, 2012, is adjourned at 9:30 P.M.

Minutes approved: December 20, 2012

______________________________ _____________________

Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on December 8, 2012, from notes that I made during the planning board meeting on December 6, 2012, and from copies of the two Town tapes that Chairman Clayton Wood made on December 7, 2012.

____________________________________________

Jim Pritchard, planning board recorder and secretary

December 6, 2012 Minutes

2 Town tapes.