February 21, 2013 Minutes

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

DATE: Thursday, February 21, 2013

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:05 P.M.

AGENDA ITEM 2: Roll Call

Planning board members present:
Clayton Wood (CW), planning board member and chair;
Pat Heffernan (PH), planning board member and vice-chair;
Jim Pritchard (JP), planning board member and secretary;
Bill Miskoe (BM), planning board member;
Gerard LeDuc (GL), 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.

Planning board members absent: None.

Other town officials present: Jesse Pacheco, building inspector.

Members of the public appearing before the planning board:
Carol Lambert, 83 Governor’s Road, Pittsfield, NH 03263.

“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

Paul Rogers’s conditional exemption from site plan review, February 7, 2013:

CW said that the board had erred in granting Paul Rogers a conditional exemption on condition of a special exception to the parking requirements.
[Editorial comment of recording secretary JP: zoning ordinance article 16, section 5, (d), defines the special exception to the parking requirements.] Zoning ordinance article 16, section 5, (d), allows sharing of off-street parking spaces, not on-street parking spaces, and, because Paul Rogers has no off-street parking spaces, he cannot possibly meet the special exception conditions. Paul Rogers needs and has applied for a variance instead of a special exception. CW asked whether the board should just not give the conditional exemption final approval and redo a new application for exemption from site plan review, or revoke the conditional exemption and redo a new application for exemption from site plan review

CW said that the board is trying to help applicants by processing requests quickly, but perhaps the board is trying to do things too quickly. Board members had only one day’s notice for the Rogers application. The board did not give Jesse Pacheco timely notice. More time to prepare on Paul Rogers’s application would have helped.

JP recommended revoking the conditional exemption because the board knows that the condition cannot be satisfied.

BM asked whether Paul Rogers could substitute a variance for a special exception in the existing conditional exemption from site plan review.

JP said that a variance cannot replace a special exception in the existing conditional exemption because a special exception is permission inside the zoning ordinance whereas a variance is permission outside the zoning ordinance. JP said that revoking the existing conditional exemption will not delay Paul Rogers because he would still have had to return to the planning board for final approval even if he could have gotten a special exception.

JP said that he preferred to wait on the revocation until after the zoning board of adjustment had decided Paul Rogers’s application for variance. Waiting on the revocation will not delay Paul Rogers because he would have had to return to the planning board for final approval of his conditional exemption even if he had gotten a special exception instead of a variance.

Jesse Pacheco asked for clarification of the revocation timetable.

JP said that the planning board can revoke the old exemption and process the new exemption request, if the variance is granted, on the same night.

GL agreed with JP.

Building inspector Jesse Pacheco said that the applicant Paul Rogers and the board had not followed section X, Application for Subdivision or Site Plan Approval, of the board’s rules of procedure. The applicant is supposed to approach the building inspector first. When the board circumvents the board’s rules, the board complicates the building inspector’s job. The applicant also circumvented the building inspector in applying to the zoning board of adjustment. The applicant did not complete a certificate of zoning compliance.

BM said that the board should consider repealing the parking regulations (zoning ordinance article 16) because Paul Rogers might not be able to comply with them or get a variance by April 1, 2013, which might put Paul Rogers out of business at Jitters Café.

JP reminded BM that Jesse Pacheco just said that Paul Rogers did not go through proper channels in seeking the necessary permits.

PH said that the board should help applicants as best the board can, but Paul Rogers did not do what he was supposed to do. Paul Rogers did not go to the building inspector first, and he is not even ready to move.

CW said the zoning board of adjustment exists to decide when relief from the zoning ordinance is appropriate.

Bailey Park:

CW reminded the board that it had planned to address in February 2013 the problem of no permanent conservation restriction in Bailey Park. (See planning board minutes of November 15, 2012.) CW asked whether the board should begin this process at the March 7, 2013, meeting or wait until after the town meeting election, when the board membership would be established for the year.

The board agreed that it would begin the process at the March 7, 2013, meeting because the board’s activities at this meeting would be purely administrative in planning how to notify owners and residents of Bailey Park and in scheduling a hearing.

AGENDA ITEM 4: Approval of Minutes of February 7, 2013 Meeting

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

GL seconded the motion.

Discussion:

No member saw any problems in the draft minutes.

Vote to approve the minutes of February 7, 2013, as written in draft: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 5: Letters to the Board of Selectmen Regarding Stagecoach Condominium Cluster Subdivision

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

PD sat in JP’s place.

CW’s February 21, 2013, letter to the board of selectmen:

CW said that Jennifer McCourt had sent him a copy of her request that the NH DOT renew the driveway permit. The driveway permit expired on February 9, 2013.

CW referred to his draft letter dated February 21, 2013, to the board of selectmen. The letter says as follows:

“The Planning Board received notification that the DOT Driveway permit for Thompson Road and RT107 is up for renewal. The Planning Board wants to bring to the Selectmen’s attention that upon review of the original Application by the 2007 Board of Selectmen, the Selectmen did not follow the Town Attorney’s advice of meeting the requirements of RSA 674:41 prior to signing the DOT Driveway Application. Please see the attached email. The Planning Board recommends to the Board of Selectmen that they meet the requirements of RSA 674:41 prior to signing the renewal.”

The attached letter from the town attorney says as follows:

“We feel that before either signing off on the driveway permit or granting permission to work on the Class VI portion of Thompson Road, the selectmen need to go through the RSA 674:41 process of ‘authorizing’ building permits to be issued for this development. That will include review and comment of the proposal by the planning board (which can be the approval of the plan if that has taken place already) and a public hearing by the BOS on the issue, followed by a formal vote authorizing the issuance of the building permits.”

CW said that he had just received notice today from Jennifer McCourt that the NH DOT had extended the existing driveway permit, so signing a renewed driveway permit is a moot issue. But the concept of the February 21 letter is still relevant because the selectmen have not done the RSA 674:41 process.

PH asked for clarification that the NH DOT extended the driveway permit not at the town’s request.

BM said that the NH DOT had extended the driveway permit at Jennifer McCourt’s request.

CW said that the town may want to correct its relationship with the NH DOT so that the NH DOT will not take such actions without the town’s permission. The town can sign an access management agreement with the NH DOT so that the NH DOT will keep the town more involved in NH DOT actions. CW said that the NH DOT has a checklist for driveway-permit conditions. The access management agreement will let the town add conditions to the checklist.

PD asked whether the NH DOT driveway permit has a 30-day appeal period.

CW said that most things have a 30-day appeal period.

CW asked whether he should send his February 21 letter to the board of selectmen.

BM referred to the letter dated February 21, 2013, of Douglas DePorter, NH DOT District 6 Engineer. BM asked why the NH DOT had notified Jennifer McCourt, not the Town of Pittsfield, of the extension when the town had not requested an extension. Jennifer McCourt has no authority to request an extension because the Town of Pittsfield is the driveway-permit applicant.

CW said that the driveway permit names McCourt Engineering as an “agent.” (Condition 3, B, says, “[A McCourt Engineering] engineer … must be on-site to oversee the work and serve as a liaison between the State and the Applicant.”)

BM said that McCourt Engineering is an agent “because they did the design.”

CW said that he could not say why the NH DOT had extended the driveway permit on Jennifer McCourt’s request. CW said that he had written his letter because he thought that the renewal would require the selectmen’s signature. CW asked whether he should send his February 21 letter even though the NH DOT has already extended the driveway permit.

PH said that the selectmen should know about the town attorney’s recommendation for a public hearing.

LK said that the board of selectmen had signed the driveway permit on March 20, 2012, because a previous board of selectmen in 2007 had approved the application for a driveway permit. LK referred to the selectmen’s minutes of August 28, 2007: “[Town administrator Leon Kenison] noted that Paul Skowron and Town Attorney had started the [driveway-permit] process via E-mail in February for this to be accomplished according to RSA 670:41 [sic, RSA 674:41], which has been done.” LK interprets this passage as saying that the board of selectmen did do the RSA 674:41 process before signing the driveway permit on March 20, 2012. LK cannot find any record of the RSA 674:41 process itself, but, on March 20, 2012, the board of selectmen relied on this passage from the minutes as evidence that the board of selectmen had done the RSA 674:41 process.

BM asked for clarification that the board of selectmen had issued 12 building permits.

LK said no. LK said that the board of selectmen held a public meeting and worked with the planning board according to RSA 674:41. But because the selectmen did this so long ago, LK would be willing to do it again.

CW said that the RSA 674:41 process did not happen. The minutes record every vote. Because the minutes recorded no vote, no RSA 674:41 process happened. The board of selectmen should hold a public hearing and adopt a class VI highway development policy. The waiver of maintenance or damage liability must be recorded at the county registry of deeds. CW cited the comments of selectman Art Morse on March 6, 2007, as evidence that the RSA 674:41 process did not happen.

LK said that March 6, 2007, was much before August 28, 2007. LK repeated that the selectmen’s August 28, 2007, minutes say that the RSA 674:41 process has been done.

CW said that the RSA 674:41 process could not have been done because the waiver of maintenance or damage liability must be recorded at the county registry of deeds as part of the process. No liability waiver is recorded. The selectmen should not have signed the driveway permit when the liability waiver is not recorded. The intent of CW’s letter of February 21 is to tell the selectmen that they did not do the driveway-permit process according to the town attorney’s recommendations.

BM said that the board of selectmen had approved applying for the driveway permit and may or may not have done the RSA 674:41 process, but, even if the board of selectmen did do the RSA 674:41 process, the board of selectmen should do it again because of the amount of time passed.

The board agreed that CW would send his February 21, 2013, letter to the board of selectmen.

CW’s February 19, 2013, letter to the board of selectmen:

CW referred to his draft letter dated February 19, 2013, to the board of selectmen. CW wrote the letter with help from NH Local Government Center (“LGC”) attorney Christine Fillmore. The letter states a number of action items for the board of selectmen and introduces itself as follows:

“it is clear that the building on, excavation of and/or maintenance of Thompson Road are very important conditions to the final approval process and that the BOS has total responsibilities for all changes and permits on this road. Since the Town of Pittsfield has no formal policies for any building on, excavation of and/or maintenance of Class VI Roads, it is impossible for the PB to determine if the developer is in compliance. The PB requests that the BOS takes the following action before the PB can hold the Compliance Hearing.”

CW said that he and BM had gone to the LGC four weeks ago to discuss bonding and class VI highway issues. CW worked with LGC attorney Christine Fillmore to develop the list of action items in the February 19 letter. Many matters under the board of selectmen’s control have not been done. There are many questions that the planning board cannot answer in relation to Thompson Road because they are matters for the board of selectmen only.

CW said that other towns have class VI highway development policies, excavation policies, and maintenance policies. These policies should have been done before the Stagecoach Station application. CW read action item 1:

“The Planning Board recommends that the BOS develops a policy for building on this road, holds a public hearing regarding the changes to this road, take a formal vote to allow building on this road and register the proper liability release (if the BOS approved building on this road). The PB has concerns that if the building permit is granted without a formal policy, then the conditions for building and liability are not enforceable.”

CW said that the policy is important so that anyone seeking a building permit on a class VI highway can know whether he can or cannot build.

CW said that an important aspect of the class VI highway development policy is the distance from a class V highway. Some of these policies specify how far the building can be from a class V highway. Having a development policy is part of complying with RSA 674:41.

CW said that RSA 674:41 talks about building and subdivision.

CW said that RSA 674:41 compliance requires a vote of the selectmen (RSA 674:41, I, (c), (1)) and a recorded waiver of maintenance and damage liability (RSA 674:41, I, (c), (2)).

CW said that AHG Properties is not only building on a class VI highway, AHG is also “ripping it up.” RSA 236:9 prohibits such “ripping it up” activities without written permission from the town. The highway agent George Bachelder has not approved this road-construction project. Any bond that the town requires for the Thompson Road reconstruction project must have conditions defining default, which, in turn, means that the town must have a policy defining its performance specifications. The town will need George Bachelder to develop the road-construction policy with performance standards for road construction.

CW said that some towns use a paved-road standard, but other towns use an emergency standard. These two standards are very different. Pittsfield has no standard. The highway agent George Bachelder, not the planning board, will decide whether AHG has met the performance standard. The board of selectmen will be the authority that decides the bonding requirements, including the specifications for releasing the bond.

CW said that AHG needs an excavation permit because they are ripping the road apart. The town needs an excavation policy. Once again, the town will need the highway agent George Bachelder to develop an excavation policy.

BM said that the town needs a class VI policy, but developing one could take a long time. Meanwhile, the town has a particular applicant with a particular plan. The selectmen can approve this applicant’s plan without basing the approval on any policy because the plan is detailed. The town can ask Louis Berger Group to determine whether the proposed plan is appropriate. Louis Berger Group can supervise the construction. The selectmen do not have to formulate a policy. The applicant will object to developing a policy. The selectmen should look at the particular application. Then the selectmen must decide whether to issue building permits on the class VI highway. Then the selectmen must decide whether to permit AHG to improve Thompson Road according to AHG’s detailed plan. Then the selectmen must decide whether to permit AHG to maintain the improved highway. The selectmen must provide the NH DOT a $50,000 bond, which the selectmen should get from AHG. Then the selectmen should require AHG to provide a $100,000 performance bond for the Thompson Road above the NH DOT driveway-permit area.

CW said that an excavation permit must be based on a policy. Once the town permits one developer to disturb Thompson Road in this manner, the town is on record as allowing it. An excavation policy must not be difficult because other towns have them. The highway agent George Bachelder can easily adapt one of them. The Central New Hampshire Regional Planning Commission has many examples. The planning board cannot decide the excavation policy; the selectmen must decide the policy.

CW referred to “posting of the bond for the Thompson Road.” The board of selectmen must be involved with the bond because they are the ones who would release it. The relevant Developer Improvement Agreement must specify performance and conditions of default. The town highway agent George Bachelder is the only person qualified to specify this information. The surety company will resist paying a claim if the town’s performance conditions are vague. If AHG defaults, then the board of selectmen may not want to rebuild Thompson Road; the selectmen may want to restore Thompson Road.

BM said that the town has used the Louis Berger Group to decide required performance. The town should use them again. The town should not have the highway agent George Bachelder on site supervising the project. BM has an estimate from Louis Berger Group for this supervision. AHG will put money in escrow for the town to pay for this supervision. The town highway agent George Bachelder cannot handle a job this big. The building inspector Jesse Pacheco cannot handle a job this big.

CW said that he was talking about a policy, not the particulars of how to manage the Thompson Road project. Highway agent George Bachelder has said that no one in Pittsfield has previously reconstructed a class VI highway.

CW said that the policy is the selectmen’s decision but that the highway agent George Bachelder must at least approve the construction plans.

CW said that RSA 236:10 requires the selectmen to develop a road-maintenance policy.

CW referred to the NH DOT driveway permit for the intersection of Thompson Road and NH Route 107. Because the board of selectmen has the agreement with the NH DOT, the board of selectmen should be the party requiring the $50,000 bond from AHG and should make sure that the NH DOT will accept a bond from AHG in lieu of a bond from the town per se. This advice comes from LGC attorney Christine Fillmore.

CW said that the board of selectmen is welcome to come speak to the planning board about these highway-policy matters.

LK asked whether the planning board has money in escrow for the Stagecoach Station project.

CW said yes, but not much money in escrow. BM is investigating how much money the planning board will need.

BM said that Louis Berger Group has estimated that the planning board will need about $75,000.

CW said that highway agent George Bachelder should advise on whether this amount is appropriate.

BM said that the town now has about $2000 to pay Louis Berger Group to estimate costs for future services.

LK asked whether the planning board were paying the Central New Hampshire Regional Planning Commission from AHG’s escrow account.

BM said yes, but the money is dwindling.

LK asked whether AHG is paying for the planning board’s attorney’s fees.

CW said that the planning board is not generating any attorney’s fees.

CW called a recess at 8:25 PM.

CW reconvened the meeting at 8:30 PM.

CW requested the board’s consensus on (1) whether to send his February 19 letter to the board of selectmen and (2) that the planning board cannot have a compliance hearing before the board of selectmen acts.

PH said yes, send it. The selectmen should have as much information as possible.

CW said that the board of selectmen could ask the planning board for more information. Highway agent George Bachelder should examine the numbers.

LK said that the information in the letter is good.

CW said that the planning board will work with the board of selectmen. The board of selectmen does not have to start from scratch.

LK asked the planning board to provide the selectmen sample highway-disturbance policies.

CW agreed.

AGENDA ITEM 6: Review of Documentation for Compliance Hearing Regarding the Conditional Approval for the Stagecoach Condominium Cluster Subdivision (Map R44, Lot 1)

BM said that he had looked at bonding amounts, escrow amounts, and bond structuring. BM said that three bonds will be required. The town will have to provide a $50,000 bond to the NH DOT. AHG will have to pay for the $50,000 bond even though the town will provide it. All bonds should come from a surety company licensed in New Hampshire. BM does not like letters of credit or mortgages. There will be a bond for Thompson Road, which could be worded “performance to complete or to restore.” The planning board will have to require a third bond within the boundary of Stagecoach Station. LGC said that the bonding on this infrastructure must be limited to “public-use infrastructure—roads and drainage not including the water system or the sewerage.” BM did not know about the underground utilities. BM said that NH Electric Co-op estimated the cost of underground utilities at $25,000. A performance bond for internal infrastructure, not including underground utilities, would be about $770,000. AHG has proposed a reclamation bond of $125,000 for the interior of Stagecoach Station. BM does not like a reclamation bond because complete reclamation is difficult to define. $125,000 would be inadequate for reclamation. BM wants a performance bond for internal infrastructure. BM wants money in escrow for Louis Berger Group for supervision and as-built plans. BM thinks that the condominium association will ask the town to take responsibility for the shared infrastructure. The town will need as-built plans in that case. Louis Berger Group’s estimate for supervising the project is $68,000, including as-built plans but not including material sampling and testing. Thus AHG will have to put $75,000 in escrow for Louis Berger Group’s services. Louis Berger Group’s report will tell the planning board whether to release the performance bonds.

CW said that AHG says that the planning board’s 2007 conditional approval releases AHG from having to bond internal infrastructure. In lieu of bonding, AHG will not ask for building permits before the internal infrastructure is done. AHG says that the planning board has already approved this security proposal.

BM said that LGC attorney Christine Fillmore said that the planning board can and should require a bond for internal infrastructure.

CW said that the board must decide how much of the subdivision regulations will the board require AHG to satisfy. The subdivision regulations prohibit the issuance of building permits on a non-bonded road. (Subdivision regulations section 7, A, 2, (a).) AHG did say that she would not bond internal infrastructure, but the record does not show that the board agreed. AHG claims that the absence of a bond stated in the conditions is approval. The current board, not the 2007 board, is responsible for the bonding.

BM said that the board did not have to list the bonding as a condition of the 2007 conditional approval because bonding is a subdivision regulation.

CW said that the NH DOT bond is “clear cut.” The selectmen will handle this bond by themselves. The selectmen will get a bond from AHG and pass it on to the NH DOT. If the NH DOT accepts it, then this bond is done.

CW said that the planning board and the board of selectmen should work together on the bond for Thompson Road above the NH DOT driveway-permit area. The two boards will need help from the highway agent George Bachelder and Louis Berger Group.

BM said that he disagreed with AHG’s bond proposal on Thompson Road. AHG proposes that $25,000 of the $50,000 NH DOT bond should count toward Thompson Road above the NH DOT driveway-permit area because the driveway-permit area will cost only $25,000 to do. BM said that the $50,000 must be completely separate from bonding above the driveway-permit area. Louis Berger Group estimated that the total cost of the Thompson Road project would be $125,000. Therefore, AHG proposes $75,000 for Thompson Road above the driveway-permit area. BM thinks that the town should require $100,000 for Thompson Road above the driveway-permit area. Jennifer McCourt and Louis Berger Group should try to agree on final numbers.

CW said that highway agent George Bachelder will resolve disagreement between Jennifer McCourt and Louis Berger Group.

CW said that the planning board must decide the bond for internal infrastructure and the associated Developer Improvement Agreement. The planning board will also advise the board of selectmen on the Thompson Road part above the NH DOT driveway-permit area.

LK asked the planning board to be involved in anything that the board of selectmen does in respect to Stagecoach Station.

CW agreed.

PD asked for confirmation that the Developer Improvement Agreement states the conditions of the performance bond and is an agreement between the developer and the town.

CW said yes.

PD asked for confirmation that the Developer Improvement Agreement did not exist in 2007.

CW said yes.

PD asked how the board could have conditionally approved Stagecoach Station in 2007 with no Developer Improvement Agreement.

CW said that the omission had been a mistake.

BM said that AHG’s current submission is new, so the board can reexamine it.

LK said that he had talked to “legal counsel” about the bond for Thompson Road above the NH DOT driveway-permit area. “Legal counsel” said that the selectmen can require a bond either as part of the planning board’s approval (RSA 674:36, III, (b)) or as part of the selectmen’s permission under RSA 236:9, but the town can require only one bond, which should be for the full cost of the roadwork.

CW said that LK’s advice from “legal counsel” is why the board of selectmen must require the bond for Thompson Road above the driveway-permit area and why the planning board should advise the board of selectmen on the amount.

GL said that highway agent George Bachelder wants Louis Berger Group to supervise the whole Stagecoach Station project. George Bachelder does not want to be involved in Stagecoach Station.

CW said that highway agent George Bachelder must decide whether to approve the plan. The town needs someone who can say when the work is done and when a default has happened. Louis Berger Group will want George Bachelder to make the final decision.

BM said that he thought that the board of selectmen can designate Louis Berger Group instead of highway agent George Bachelder to supervise this project.

LK said that highway agent George Bachelder can supervise it.

CW referred to the “as amended from time to time” language in the conservation restriction. CW still objects to the most recent version of this language.

BM said that AHG says that the provision for amendment must be there because the building footprints are not known now. But the condominium declaration says that the footprints are known now as specified on the subdivision plat. There is no need for “as amended from time to time.”

PH referred to AHG attorney Andrew Sullivan’s e-mails with town attorney Laura Spector-Morgan of last August 13 and 14, 2012. Andrew Sullivan said that he did not mind removing the provision for amendment. So let him remove it.

The board agreed that AHG must remove the provision to amend the conservation restriction.

CW referred to the movement of Kathy Bleckmann’s stone wall.

BM said that he had thought in 2007 that AHG would obtain an easement from Kathy Bleckmann as AHG did from Larry Stockman. The 2007 conditional approval means nothing in relation to the stone wall because the board had no authority to approve a violation of state or federal law.

PH said that the stone wall could only be moved by eminent-domain process and that the movement must do more than a favor for AHG. The movement must be for a public need.

CW said that the stone walls are a perfect opportunity to involve highway agent George Bachelder. The stone walls are the monuments defining the boundaries of the highway. The town must be involved if the stone walls move.

LK said that the stone wall movement is between AHG and Kathy Bleckmann.

BM said that the town and Kathy Bleckmann own the stone wall jointly. AHG would need permission from both the town and Kathy Bleckmann.

LK said that the town has no say over Kathy Bleckmann’s stone wall. The stone wall movement is between AHG and Kathy Bleckmann.

CW disagreed. AHG also needs the town’s permission.

LK said that neither the board of selectmen nor the planning board can permit AHG to move the stone wall.

PD said that the town cannot permit AHG to move the stone wall without an eminent-domain hearing.

LK agreed.

CW said that the 2007 conditional approval did not permit the movement of the stone wall. The planning board could not approve a violation of state law. The selectmen could justify a taking if it were necessary for public safety. But no one is using Thompson Road now.

BM said that AHG can redesign around the stone wall. AHG does not need to move it.

CW said that the planning board cannot approve the plans if AHG cannot move the stone wall, because the drainage ditch proposed where the stone wall is now is critical.

PH asked whether AHG could use the Stockman easement.

BM said that the Stockman easement is for drainage. This easement may not give AHG the right to move the wall on the Stockman side. The town is still half owner of the stone wall. AHG should have negotiated with both the Stockmans and the town for the Stockman easement.

CW said that the board of selectmen made themselves a party to the subdivision when the board of selectmen signed the NH DOT driveway permit. The NH DOT does not recognize AHG’s ability to do anything. The planning board will certainly not recognize AHG’s ability to move a stone wall bounding a highway. The planning board cannot move toward final approval until the board of selectmen approves the Thompson Road plans.

CW said that the planning board can give the selectmen bonding numbers. The selectmen need advice from highway agent George Bachelder on the stone wall movement and on the Thompson Road project generally.

BM said that the planning board can tell AHG that the stone wall movement is unlawful and must be removed from the plan. The board of selectmen does not have to be involved.

CW said that the board of selectmen should be involved.

PD agreed with BM. The planning board should require AHG to remove the stone wall movement. Removing the stone wall movement now will prevent the board of selectmen from accidentally approving a plan showing the movement.

BM said that AHG will have to redesign the road, so the stone wall movement may as well be removed now.

CW wanted the board of selectmen to agree that AHG cannot move the stone wall. The selectmen are a party to this subdivision.

BM asked whether AHG will need a new NH DOT driveway permit because of the redesign around the existing stone wall.

CW did not know.

LK asked whether anyone had walked Thompson Road.

CW said that several people had walked Thompson Road.

BM said that he had walked Thompson Road and had measured it. Thompson Road is only 31 feet wide in some places.

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

GL had nothing to report.

AGENDA ITEM 8: Members’ Concerns

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

JP said that the board had forgotten to impose an abandonment condition on Paul Rogers’s application even though the board had sworn never again to forget this condition after AHG’s Stagecoach Station. But the board forgot on the very next conditional approval. JP referred to Christine Fillmore’s advice that, for conditional approvals in general, a planning board “probably” cannot withhold final approval because of unfulfilled conditions precedent required by state law, if the notice of decision did not list those laws as conditions. JP said that the Rogers experience showed that Christine Fillmore’s advice is unreasonable: Given that the board has trouble remembering just the abandonment condition, the board will certainly not remember as a condition every law that could possibly apply.

AGENDA ITEM 9: Public Input

Carol Lambert thanked the board for saying that AHG must remove the “as amended from time to time” language.

Carol Lambert read from the planning board minutes of December 6, 2012:

“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.”

Carol Lambert said that AHG wants to develop the conservation area.

Carol Lambert said that AHG is trying to confuse the terms “open space common area” with “common open space.” Carol Lambert wants the conservation area to be labeled “conservation space” to be clear that the area has a conservation restriction. AHG will try to change the conservation area.

JP, speaking from the audience, wanted to emphasize attorney Scott Hogan’s statutory-construction analysis. AHG’s most recent change made matters worse, not better. In support of attorney Scott Hogan, JP cited Town of Amherst v. Gilroy, 157 N.H. 275, 950 A.2d 193 (2008):

“The legislature is not presumed to waste words or enact redundant provisions and whenever possible, every word of a statute should be given effect. … We also assume that a statute that lacks a similarly worded phrase has a different meaning than a statute that contains one.”

Because conservation restriction paragraph 1, [B], which does not talk about building, has special language restricting amendments, but paragraph 1, [A], which does talk about building, lacks this special language, the conservation restriction must be read as allowing amendments to the conservation restriction in the case of building.

JP also agreed with attorney Scott Hogan on the need for better definition of the boundary of the conservation area.

JP referred to CW’s statement that no one had reconstructed a class VI highway in Pittsfield as AHG proposes to do. JP asked whether anyone in the state has reconstructed a class VI highway as AHG proposes to do. JP had researched whether RSA 236:9 has ever been used as Pittsfield is proposing. There is no case law supporting Pittsfield’s use. RSA 236:10 suggests that it is just an excavation statute, not a reconstruction statute.

JP referred to the board’s question of whether the project needs the supervision of highway agent George Bachelder. The board had also discussed that the surety company would not want to pay a claim and would look for fault of the town. JP referred to RSA 231:62, which he had previously cited, and which the board has consistently ignored. JP predicted default and that the surety will want to know where the highway agent was according to RSA 231:62. If the town cannot say that the highway agent was supervising the project, then the surety company will deny the claim.

JP thanked PD for saying that moving the stone wall would require an eminent-domain hearing. PD’s comment should be in the letter to the board of selectmen.

JP referred to (1) BM’s suggestion that the planning board tell AHG to remove the stone wall movement from the plan and (2) CW’s preference to have the board of selectmen involved. JP agreed with BM because, as PD said, moving Kathy Bleckmann’s stone wall requires eminent-domain process. AHG has not petitioned for an eminent-domain taking, and the planning board has no reason to think that a public need will require an eminent-domain taking.

JP referred to BM’s question of whether AHG could move the stone wall on Larry Stockman’s side of Thompson Road. JP said that whether AHG could move this stone wall is not clear on first impression, despite the Stockman easement encumbering the whole Stockman property. Just what the easement lets AHG do is not clear on first impression.

Jesse Pacheco thanked the board for its work on Stagecoach Station. Jesse Pacheco referred to the placement of lot 1Q behind lot 1P. This placement leaves a large gap between lot 1O and lot 1P. The gap could accommodate a road extending into the conservation area. Jesse Pacheco recommended that the board bear this possibility in mind. As a contractor himself, Jesse Pacheco thought that AHG had arranged the lots this way intending to build a road into the conservation area and develop this area.

JP referred to Jesse Pacheco’s analysis and the rule of statutory construction that JP had cited. AHG must delete every word of the “as amended from time to time” language because any words remaining will have effect. JP said that the board should require AHG to mark clearly the boundary of the conservation area.

BM agreed that the boundary of the conservation area should be clearly marked and labeled “permanent open space” on the plan.

Carol Lambert requested that the label be “conservation.”

Jesse Pacheco asked whether BM’s labeling “open space” would protect the conservation area adequately. Lot 1Q could have been put between lot 1O and lot 1P. This placement would have arranged all of the lots uniformly. The placement of lot 1Q behind lot 1P instead of beside lot 1P has a reason.

PH wanted to ask Jennifer McCourt why she had placed lot 1Q as she had.

BM said that the board could require that the plan clearly delineate and label the conservation area: “Permanent open space. No construction within the boundaries.” Because of the ambiguities in the conservation restriction, the board should require this change to the plan.

Carol Lambert asked the board to consider a conservancy for the conservation area. The Pittsfield Conservation Commission is not equipped to manage the conservation area in Stagecoach Station.

BM said that putting conservation land in a conservancy is a lengthy and difficult task.

PD said that deeds usually have any conservation restriction stated.

JP explained that the subdivision plat states the conservation restriction and that all deeds issue from that plat.

CW closed public input.

CW suggested that, at the March 7, 2013, meeting, the board continue considering the conservation restriction and discuss whether to approach AHG directly to tell her to remove the stone wall movement from the plan.

AGENDA ITEM 10: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of February 21, 2013: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of February 21, 2013, is adjourned at 9:37 P.M.

Minutes approved: March 7, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on February 23, 2013, from notes that I made during the planning board meeting on February 21, 2013, and from copies of the two Town tapes that Chairman Clayton Wood made on February 22, 2013.

____________________________________________
Jim Pritchard, planning board recorder and secretary

two Town tapes.