Pittsfield Zoning Board of Adjustment
Town Hall, 85 Main Street
Pittsfield, NH 03263
Minutes of Public Meeting & Hearing
December 8, 2005
Chairman Lincoln called to the meeting to order at 7:05 pm.
Members in Attendance:
Roll Call was taken. Robert Lincoln (BL) Chair, Ed Vien (EV), Susan Muenzinger (SM), Paul
Metcalf (PM), and Alternate Carole Dodge (CD), were present.
Robert Elliott (BE) Vice Chair, and Alternate Jesse Pacheco (JP), was absent.
Jeremy Lamson, Town Administrator was present.
Anne Taylor, PB/ZBA secretary was present.
Item 3. Approval of minutes of the November 10, 2005 meeting
(SM) Page two, under AHG, change “edit” to review. Under item six, page two, change “are” to
were. On page three, add, “When that occurs, I hope the parties involved will be in attendance”.
On page three, change “ask” to comment.
(PM) Motion to approve November 10, 2005 minutes as amended
(SM) Seconds motion
4-0 Motion Carries
Alternate Carole Dodge steps up
(RL) I would like the record to reflect that this is the second meeting in a row that (RE) has not
attended without calling.
Item 4. Consideration of a request for clarification regarding a Special
Exception for a Cluster Subdivision in the Rural Zone filed by Trigger
Development LLC of P.O. Box 515 Suncook, NH 03275 for a lot on Route 107
(Map R-03 Lot 7) Pittsfield, NH 03263.
(JL) I have a memo that was distributed stating that I was advised by the Pritchards that this
procedure for Trigger Development is not legal. Attorney Tim Bates also confirmed this.
(Memo Ex. A)
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(SM) That was my argument all along. There should have been a recommendation or statement
from the Planning Board as it states in Article 8.
(JL) That is not what I meant. The reference was the Planning Board sending it back to the ZBA
for interpretation was illegal. The issue was whether or not the setbacks were waived
(SM) The question was whether the setbacks were waived? My memory of the ZBA’s decision
in the minutes was that we waived the setback requirements.
(JL) The PB was not sure.
(SM) Why, if it is clear in the record, does the PB have questions on it?
Bill Miskoe (BM): Trigger Development came in with a cluster development plan. They had lot
line setbacks of thirty feet frontline instead of fifty and fifteen or ten sideline instead of thirtyfive.
The question was why are these lot line setbacks diminished from what the Zoning
Ordinance says. The applicant said that the zoning ordinance lot line setbacks were waived by
the ZBA. We read the Notice of Decision and the only specificity was that no lot be smaller than
a ½ acre. There was no reference to frontage or lot line setbacks. I don’t think you can change
your Notice of Decision six months later.
(JL) At this point, they are not coming here because the ZBA cannot do anything. As the memo
states, the question is does the PB concur. The zoning ordinance says that the ZBA can with the
concurrence of the PB waive the setbacks.
(SM) To me, that has always meant prior to the ZBA dealing with the Special Exception. The PB
has never wanted to put themselves on the spot to comment on waiving or discussing the
dimensional requirements.
(JL) That is what they are going to do when they discuss this again. I don’t think we need to
spend any more time on it because the PB should be the ones discussing it.
(SM) The PB is not discussing it, the ZBA is, and I am trying to get clarification on my motion
and why there is an issue. The motion says, “Further I move that the Board agrees to waive the
dimensional requirements of Article 2, Table 2.”
(BM) Had that made it into the Notice of Decision, there would be no problem. The Notice of
Decision is what someone who wished to appeal within the thirty-day appeal period has to act
upon.
(SM) What did the notice say?
(JL) The Notice of Decision had the conditions and limitations on it. The limitations from Article
2, Table 2 were waived, however the Board set some specific conditions on that waiver about
amount of lots and minimum lot size and that’s what was in the Notice of Decision were those
conditions.
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(SM) So had the Board waived the dimensional requirements of Article 2 and set minimum
setbacks, this would not be an issue?
(JL) The Board just simply waived the setbacks; it did not set specific setbacks.
(SM) We do not have to set them. The ordinance states that we waive them or not waive them.
(RL) It is obvious we can’t hear this.
(PM) Motion to pass over Item four on agenda.
(CD) Seconds motion.
(RL) Any discussion?
5-0 Motion Carries
Item 5. AHG Discussion
(RL) I have two letters from Attorney Blakeney dated December 7, and December 8, 2005.
Reads the letters to the public (Exhibit B and Exhibit C). Any discussion?
(SM) I was apprised of this fax from December 8th this morning. I called Attorney Bates and
asked him to clarify that he had no objection to the Board granting the one-week delay that
Attorney Blakeney had requested. In e-mail back, (Exhibit D) and a subsequent conversation, he
confirmed that he had no objection to Attorney Blakeney’s request for a one-week extension to
review and respond to the final work product. He also stated that he did not at any time state to
him that he agreed that the ZBA should grant any such request he might make. That decision is
up to the discretion of the ZBA. Bates did not take any position on this with Attorney Blakeney,
except that it was all right for him to make the request.
(RL) How does the Board feel about Attorney Blakeney’s request?
(SM) I do not feel we need to grant the extension. The document is public record tonight and
anyone can have a copy tonight if we vote on it. It is the Board’s statement, not the Pritchard’s,
Attorney Blakeney, or Attorney Sullivan’s statement. It was agreed upon by the Town Attorney.
I think it is sufficient.
(PM) This is our document to go to the judge after much review. We are not going to change it.
(RL) The first document was a little wordy. The Town Attorney suggested it be shortened.
(EV) If this is the response we are sending, I don’t see the point in giving a week delay.
(CD) This has been said over and over that there is not a time limit, correct?
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(SM) There is not a time limit; however, we have spent about two months on this. Delaying it
longer would require another meeting on the 15th or the 19th of December. If we delay into
January, several members will not be here, including me. This is our statement and if the
Attorneys look at it and do not like it, they have thirty days from the time it is submitted to
submit something for or against the statement. I appreciate the concern that the Attorneys have
shown and I made every effort to include salient points that were good, but redundant. That is
why it is a shorter document.
(CD) I read it and find the points quite valid. There may have been some small things that were
changed.
(EV) The time to argue would be after it goes to court.
(RL) No matter what, one of the Attorneys won’t like it.
(SM) In minutes of the last meeting, that statement was included in its entirety. We are required
to have all documents sent to court. Anything that is not in the statement is in the record
submitted to back it up.
(CD) There was a lot of discussion on Class six roads.
(SM) That is not germane to the substantial justice issue. I left that out and Attny. Bates
concurred.
Discussion follows on Class Six frontage in relation to substantial justice criteria for AHG
(EV) Motion to deny the request for a one-week extension.
(PM) Seconds motion
(RL) All in favor?
Motion carries 4 in favor-1 abstention (CD)
(RL) Any discussion?
(JL) Suggests (EV) and (CD) abstain.
(PM) Motion to send the document regarding AHG –answer to the court-as amended.
(SM) Seconds motion.
(RL) All in favor?
Motion carries 3 in favor-2 abstention (EV) and (CD
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Item 6.Public Input
(BM) I want to go back to the interaction of the PB and the ZBA in regards to
cluster developments. First I want to look at the PB’s subdivision regulations on
page 22, in reference to cluster (Reads regulation). Did the ZBA get a letter from the
PB requesting a waiver of dimensional requirements, as specified in Table 2?
(SM) The ZBA has never, on a cluster application, gotten a recommendation from
the PB, with regard to that section, since the beginning of time.
(BM) In looking at Article 8 of the zoning ordinance which is entitled “Cluster
Development” (reads ordinance). If the ZBA, in your deliberation of Trigger
Development, in your granting the exception, waived the dimensional requirements,
upon whose request did you do that?
(JL) It sounds like you are bringing something up that would come from an appeal.
(BM) I heard that it was the intent of the ZBA to waive the dimensional
requirements. Why waive them without input from the PB?
(SM) We have never gotten input from the PB. We were asked to issue a Special
Exception on the cluster development and, obviously, part of that is waiving the
dimensional requirements. Why would you have a cluster if you did not waive
dimensional requirements and lot sizes?
(BM) Because if the ZBA issued a Special Exception on a cluster, it would be on the
applicant to come to the PB and request specific waivers of frontage and…
(SM) The PB has no jurisdiction to grant waivers under the zoning ordinance. Only
the ZBA has jurisdiction to waive dimensional requirements.
(BM) In granting your Special Exception, you waived all of your dimensional
requirements. Does this mean that an applicant can come to the PB having received
a complete waiver of any and all dimensional requirements: area, frontage, and lot
line setbacks that the PB then has to accept and approve any plan which has lots of
400 ft. and 2 feet of frontage?
(SM) I don’t know.
(BM) Neither do I. When you waive all dimensional requirements, that means there
are none. Where does the PB go from there?
(JL) It is up to the PB, during the review process, to deem what is acceptable.
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(SM) The ZBA is authorizing the PB, based on a plan that makes sense, to be the
one that sets the new dimensional requirements. The PB considers prudent aspects
of subdivisions and clusters to make the determinations.
(BM) So your waiver is basically granting the PB the leeway to reduce to change
dimensional requirements?
(SM) Yes.
(BM) Back to your Notice of Decision regarding Trigger Development, was it
appropriate for you having waived all dimensional requirements to set them? If you
are going to waive them, how do you reserve the right to set them?
Larry Konopka (LK) If it was on the Notice of Decision on the setbacks we wouldn’t
have been here tonight. We went to the site and read the Notice of Decision; it had
nothing in regards to setbacks. That why this even came here tonight. Until the
Department heads get out there, get engineers involved, have an on site visit, we do
not know if this is even going to meet conditions. We do not see what fits until we
get out there. You do not know until DES and the CC gets out there, either. I know
they have a lot of concerns on some subdivisions going on now. We should work as a
team to get the final product right.
(BM) Basically, I feel the engineers are information providers to the PB and DES
has its own jurisdiction.
(LK) What about George Bachelder, the Road Agent?
(BM) He is a department head.
(LK) We work as a team.
(BM) Yes, we do, but certain people have the responsibility for making decisions
and the outside consulting engineers don’t have the responsibility. When you say
this is determined by engineers, I think that is incorrect. The PB makes those
determinations. Back to the Notice of Decision, can you waive them and give the
responsibility to the PB?
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(JL) Article Six, Special Exceptions, allows the ZBA to set conditions because it says
in Article 8 the ZBA may grant the waiver on dimensional regulations; they still
have the power to set conditions.
(SM) Reads Section 6.3 (a) –Lot area. We chose the lot size because we did not want
the lots to be ¼ or 1/3 of an acre.
(BM) That causes a problem for the PB when you grant a waiver on it and then put
conditions and we have to work within your conditions. We have nothing else to
work with because you waived everything.
(EV) Why didn’t the PB send a letter to us, like you pointed out, the PB is supposed
to?
(BM) You are not even supposed to grant an exception unless you get a request from
the PB>
(SM) We have NEVER gotten a request.
(JL) You did get a letter from the Chairman of the PB stating that it was an
appropriate location for a cluster. The plans the PB looked at did not show any
dimensional requirements.
(RL) I was arguing that we should not even hear that because we did not have
enough information, and you stated that we should.
Discussion on procedure regarding cluster review by the PB and the ZBA.
(BM) More specific request letters would be appropriate then?
(SM) That would be nice. The PB has to exercise judgment. The ZBA is more
administerial, as (RE) would say.
(LK) When the PB does not have all the information, we continue the hearing.
Suggests the ZBA do the same.
(SM) We authorize the PB to work within the concept of what will work on the
ground for a sixteen-lot subdivision on a twenty-acre parcel. We gave conditions on
lot size.
John Lenaerts: The subdivision regulations and the zoning ordinance need to be
clarified.
(RL) We can work together.
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(LK) You do not know how much you want to waive until you see the land, walk the
property, and get input from the Department heads.
(SM) Maybe you send things to us prematurely. The PB should do more homework.
(LK) We get the engineering firm to work with us. We need money in escrow from
the applicant first before we can do that. We need the department heads input as
well. To give the ZBA input, we need to get others involved.
(SM) It does not say in the subdivision regulations you cannot accept an application
without a special exception.
(JL) You can do it with conditions.
Board reviews subdivision regulations.
(SM) When we waive something, we are not waiving them away; we are waiving
them to acceptable limits.
(JL) The issue was that the PB did not believe they weren’t waived at all. The
applicant believed they were.
J. Lenaerts: A cluster means you have to change the dimensions.
Fred Hast: The PB can set dimensional regulations. All subdivisions are different.
Terrain is different. The ZBA gave an exception on the cluster. It is the PB’s job to
set the requirements.
(PM) The applicant wanted ¼ acre lots. The PB can adjust the requirements. That
is the way it should be.
(SM) The next time we have a cluster, the PB should have a report for the ZBA with
recommendations. When we review, we will be more specific. We will make the
waiver clearer.
Item 7. Member’s Concerns
None.
Item Eight: Adjournment
(CD) Motion to adjourn, seconded by (EV). Motion passed 5 – 0. Adjourned at 8:20PM.
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Respectfully Submitted by Anne Taylor, Board Secretary
Chair____________________________ Date__________________________