February 7, 2013 Minutes

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

DATE: Thursday, February 7, 2013

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:02 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; and
Peter Dow (PD), alternate planning board member.

Planning board members absent:
Larry Konopka (LK), selectmen’s ex officio alternate planning board member.

Other town officials present: Jesse Pacheco, building inspector, and Paul Rogers, selectman, was present but appeared as an applicant.

Members of the public appearing before the planning board:
Al Berry, 65 Governor’s Road, Pittsfield, NH 03263.
Steven Gendron, 13 Vindale Road, Hooksett, NH 03106.
Gordon Hackett, 24 Berry Avenue, Pittsfield, NH 03263.
Carol Lambert, 83 Governor’s Road, Pittsfield, NH 03263.
Paul Rogers, 112 Catamount Road, Pittsfield, NH 03263.
Peter Treem, P.O. Box 215, Deerfield, NH 03037.

“Members of the public appearing before the planning board” includes only members of the public who spoke to the board. It does not include members of the public who were present but who did not speak to the board.

AGENDA ITEM 3: Agenda Review

CW said that he had distributed yesterday Paul Rogers’s request for exemption from site plan review, and CW will add this request to tonight’s agenda after the Treem-Gendron lot-line adjustment.

CW said that he would postpone the application of Gordon and Lisa Hackett to after Paul Rogers’s request because the Hacketts are currently not present.

AGENDA ITEM 4: Approval of Minutes of January 24, 2013 Meeting and Minutes of February 4, 2013 Public Hearing.

CW moved to approve the minutes of January 24, 2013, as written in draft.

JP seconded the motion.

Discussion:

JP said that Hank Fitzgerald had complained that JP’s description of Hank Fitzgerald’s letter to the board of selectmen was inaccurate and unfair. Following the complaint, JP distributed Hank Fitzgerald’s letter to the planning board so that board members could evaluate the complaint.

No board member objected to JP’s description of Hank Fitzgerald’s letter.

Vote to approve the minutes of January 24, 2013, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: none. Abstaining: GL.)

JP moved to approve the minutes of February 4, 2013, as written in draft.

PH seconded the motion.

Discussion:

JP asked for the following changes:

Date, page 1: change “Thursday, February 4, 2013” to “Monday, February 4, 2013”
Agenda Item 4, page 7: change “repeal petition” to “amendment petition”
Agenda Item 4, page 8, outline item 4: change “why class VI” to “why class V”
Agenda Item 4, page 12: change “also remove” to “help to remove”

Vote to approve the minutes of February 4, 2013, with the changes that JP requested: carried 4 – 0 – 1. (Voting “yes”: JP, PH, GL, and CW. Voting “no”: none. Abstaining: BM.)

AGENDA ITEM 6: Application for a Minor Subdivision – Lot Line Adjustment – from Peter and Katherine Treem and Steven and Melissa Gendron (Tax Map R10, Lots 1 and 2).

CW explained the board’s two-step process of (1) determining whether the application is complete according to the board’s regulation and (2) evaluating the merits of the application.

CW said that the board had scheduled a public hearing but had not been required to do so because this application is for a minor subdivision. (RSA 676:4, I, (e), (1); RSA 676:4, III; and subdivision regulations section 5, C, 4.)

CW copied the application cover sheet and checklist for distribution to board members who may not have a copy.

Determination of completeness:

CW explained that the application requested three waivers of subdivision regulations that the board must decide:

1. Granite Boundary Monuments for new boundary corners (Subdivision Regulation Section 10.F.2). [Editorial comment of recording secretary JP: subdivision regulations section 10, F, 2, a.]

2. Wetlands delineation (checklist Items 14 and 19; Subdivision Regulation Section 5.B.2.b.6). [Editorial comment of recording secretary JP: subdivision regulations section 6, B, 3.]

3. Full Topographic Survey (Checklist Items 25 and 26; Subdivision Regulation Section 5.B.b.2). [Editorial comment of recording secretary JP: subdivision regulations section 5, C, b, 5, and section 6, B, 16.]

4. Tie to State USGS and State Plan Coordinates (Checklist Item 30; Subdivision Regulation Section 5.B.2.b.6 & 6.C.2). [Editorial comment of recording secretary JP: subdivision regulations section 6, C, 2.]

The board consensus was that granting each of the waivers would be appropriate because the lot-line adjustment will not increase the number of lots and will change the existing lot line only slightly.

BM moved to approve the waiver of Granite Boundary Monuments for new boundary corners.

JP seconded the motion.

Discussion: None.

Vote to approve the waiver of Granite Boundary Monuments for new boundary corners: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

BM moved to approve the waiver of Wetlands delineation.

GL seconded the motion.

Discussion: None.

Vote to approve the waiver of Wetlands delineation: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

BM moved to approve the waiver of Full Topographic Survey.

GL seconded the motion.

Discussion: None.

Vote to approve the waiver of Full Topographic Survey: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

BM moved to approve the waiver of Tie to State USGS and State Plan Coordinates.

PH seconded the motion.

Discussion:

BM said that the State USGS and State Plan Coordinates are very difficult for a surveyor to access.

Vote to approve the waiver of Tie to State USGS and State Plan Coordinates: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

CW said that the applicants did not sign the application cover sheet although they did sign the plat itself. CW does not have the original application cover sheet at tonight’s meeting.

BM moved to accept the application for lot-line adjustment as complete with the statement that the signatures on the plat will be adequate.

PH seconded the motion.

Discussion:

JP asked why the applicants cannot sign the application.

CW suggested that the applicants sign a copy of the application.

Peter Treem and Steven Gendron signed a copy of the application.

BM withdrew his previous motion and moved to accept the application as complete.

PH seconded the motion.

Discussion: None.

Vote to accept the application as complete: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

Hearing on the merits:

CW invited the applicants to explain their proposal.

Peter Treem said that his predecessor in title had built a house on the Gendron’s land. The Treems and the Gendrons are correcting this problem.

Steven Gendron agreed.

CW opened the hearing to public input at 7:30 PM.

There was no public input.

BM asked for clarification that a lot-line adjustment is a minor subdivision.

CW said yes.

BM moved to approve the lot-line adjustment.

GL seconded the motion.

Discussion: None.

Vote to approve the lot-line adjustment: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

CW explained the 30-day appeal process of RSA 677:15.

The Treems and Gendrons asked what confirmation of the board’s decision would they get.

CW said that the Treems and Gendrons will get a copy of the board’s notice of decision, and the board will record a copy of their subdivision plat at the Merrimack County Registry of Deeds.

AGENDA ITEM 5: Application for Volunteer Lot Merger from Gordon and Lisa Hackett (Map U01, Lots 33 and 34).

CW explained that the lot merger is of two lots on Berry Avenue. The board’s only function in respect to a lot merger is to decide whether the merged lot violates any of the town’s land use regulations.

GL said that the lot that the Hacketts are merging with their house lot had had a dilapidated mobile home before the Hacketts bought that lot. The town took the property by tax deed and removed the trailer.

Gordon Hackett said that acquiring this property had taken 12 years.

PH moved to approve the voluntary lot merger.

BM seconded the motion.

Discussion: None.

Vote to approve the voluntary lot merger: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

CW explained the 30-day appeal process of RSA 677:15.

Gordon Hackett asked where the sidewalks would be.

GL said to ask the highway agent George Bachelder.

AGENDA ITEM ADDED: Application for exemption from site plan review for Paul Rogers, new location for Jitters Café, 44 Main Street, Pittsfield, NH 03263, tax map U03, lot 86.

Paul Rogers distributed to the board a sketch of the property where he wanted to move. He explained that the present property where he has Jitters Café, 32 Main Street, has some code violations that will force him to close if he cannot move.

Paul Rogers said that he currently occupies 700 square feet, which licenses him for 49 seats. He wants to move that seating capacity to 44 Main Street.

Paul Rogers said that the property at 42 and 44 Main Street used to be Barney’s Clothing Store. Paul Rogers bought it six or seven years ago. Paul Rogers divided it, installed a fire alarm, and ran a video-tape rental store (Moo-Veez Galore, LLC) there.

Paul Rogers distributed to the board letters from the police chief, the fire chief, and Cintas Fire Protection (who would install a kitchen ventilation hood). In brief, the police chief’s letter says that the move would alleviate current parking congestion at the intersection of Main Street and Elm Street. In brief, the fire chief’s letter says that the NH State Fire Code will classify the new location as mercantile, not place of assembly, if the seating area remains less than or equal to 700 square feet and if the seating capacity remains less than or equal to 49 seats. Cintas Fire Protection’s letter is the cover letter for an estimate to install a kitchen ventilation system at 44 Main Street.

Paul Rogers recited the numbers of on-street parking spaces in the area:
From the corner of Volpe’s to the corner of Paul Rogers’s building: 13.
In front of Dustin Park and St. Stephen’s Episcopal Church: 11, including one handicapped parking space.
Across the street, starting at Northway Bank to the fire hydrant near Elm Street: 16.

PH asked for copies of the letters from the police chief, fire chief, and Cintas Fire Protection.

CW made copies for all board members.

Paul Rogers discussed the letter from the fire chief.

BM asked what is Paul Rogers’s current capacity at 32 Main Street.

Paul Rogers said 700 square feet with 46 seats.

BM said that the floor plan on the tax map showed a footprint of 42 feet by 60 feet, for an area of 2520 square feet.

Paul Rogers said that some of the excess space is not usable, some will be used as a kitchen, and some will be used to store supplies.

CW asked for confirmation that the 700 square feet is the serving area.

Paul Rogers said yes.

JP asked for confirmation that Paul Rogers has no off-street parking spaces.

Paul Rogers said that he has parking spaces for his tenants but no off-street parking spaces that the restaurant can use. Paul Rogers said that other buildings in the vicinity have parking lots. Paul Rogers’s building is the only building in the area that has no off-street parking lot.

Paul Rogers said that the first paragraph of his exemption request has a typographical error. “breakfast and lunch and occasional catering functions on Friday nights” should say, “breakfast and lunch and occasional catering functions and Friday nights.”

PH asked where the kitchen would be.

Paul Rogers said that the kitchen would be in the back, near a window 38 inch by 26.5 inch. The kitchen ventilation hood will fit in this window. The hood will vent through a chimney to the top of the building. The hood will be new. Paul Rogers will move his existing fire protection apparatus from 32 Main Street. Paul Rogers expects to reopen on or about April 13, 2013.

PH asked whether Paul Rogers would erect any partitions.

Paul Rogers said yes. Paul Rogers will provide drawings to building inspector Jesse Pacheco.

BM asked whether the hood chimney would be within Paul Rogers’s property boundary.

Paul Rogers said yes.

BM asked whether Paul Rogers needs a state license for a restaurant.

Paul Rogers said yes. The state knows about the proposed move. The state will inspect the restaurant.

JP asked whether the building inspector (and code enforcement officer) Jesse Pacheco had determined whether the proposed restaurant use would satisfy the parking regulations of the zoning ordinance.

Paul Rogers said that he had talked to Jesse Pacheco but that he, Paul Rogers, did not want to speak for Jesse Pacheco.

Jesse Pacheco said that he had not determined the project’s conformance to the zoning ordinance because the information that Paul Rogers has provided to Jesse Pacheco is incomplete. The zoning ordinance requires one parking space per each five seats of a restaurant. Other establishments—a Chinese restaurant and two churches—compete for the on-street, public parking spaces that Paul Rogers needs to use.

CW said that the total absence of off-street parking is an obstacle to the exemption from site plan review. Paul Rogers will have to ask the zoning board of adjustment for relief from the parking requirements of the zoning ordinance. Even if Paul Rogers uses the entire floor area, 2520 square feet, for on-street parking credit, this floor area gives him credit for only three on-street parking spaces, leaving this application seven spaces short.

JP said that Paul Rogers could seek either a variance or a special exception for relief. JP discussed the special exception process in greater detail.

CW said that the planning board cannot grant the exemption from site plan review before the zoning board of adjustment grants relief from the parking requirements. For the planning board to grant the exemption without such relief would be to ignore the zoning ordinance.

Paul Rogers asked why his two existing store fronts are not grandfathered.

CW said that the two existing store fronts are not grandfathered because the use is changing in type. The parking requirements for a retail store are different from the parking requirements for a restaurant.

JP said that he did not think that Paul Rogers needed a variance. JP said that he thought that the special exception defined in Article 16 would apply.

Paul Rogers said that he would have petitioned the town meeting to change the parking regulations of the zoning ordinance if he had understood these regulations. But now is too late for such a petition.

CW said that the planning board had tried to put flexibility in the parking regulations. The zoning board of adjustment has the authority to decide whether relief is appropriate. The planning board does not have this authority. CW asked whether the planning board could conditionally approve the request for exemption from site plan review.

JP said yes, if the parking issue is the only obstacle.

Paul Rogers said that he wants to comply with the land use regulations. Paul Rogers wants to be put on the zoning board of adjustment’s agenda as soon as possible.

CW said that parking appears to be the only obstacle to the exemption from site plan review.

The board consensus was that Paul Rogers satisfies all conditions for an exemption from site plan review (site plan review regulations section II, B) except possibly the requirement for off-street parking as required by the zoning ordinance.

BM said that Paul Rogers would have the exemption finished if Paul Rogers received a special exception to the parking requirements.

BM moved to approve a conditional waiver of site plan review on condition of a special exception to the parking requirements, for Jitters Café of Pittsfield, LLC, 44 Main Street, Pittsfield, NH, Map U03, Lot 86.

PH seconded the motion.

Discussion:

Jesse Pacheco said that a hearing for a special exception must give notice to abutters.

Vote to approve a conditional waiver of site plan review on condition of a special exception to the parking requirements, for Jitters Café of Pittsfield, LLC, 44 Main Street, Pittsfield, NH, Map U03, Lot 86: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

[Editorial comment of recording secretary JP: zoning ordinance article 16, section 5, (d), defines the special exception to the parking requirements.]

CW called a recess at 8:22 PM.

AGENDA ITEM 7: Checklist and Schedule for Compliance Hearing Regarding the Conditional Approval for the Stagecoach Condominium Subdivision (Map R44, Lot 1)

CW reconvened the meeting at 8:26 PM.

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

CW said that the last planning board meeting had reached a consensus that the board should distinguish between planning board responsibilities and board of selectmen responsibilities in respect to final approval.

CW and BM went to see the New Hampshire Local Government Center (“LGC”) last week to research bonding. Attorney Christine Fillmore gave CW two articles, which CW then distributed to the board, describing performance bonds and letters of credit: (1) Lapse of Subdivision Performance Bond or Letter of Credit (New Hampshire Town and City, March 2011, David R. Connell) and (2) Performance Bonds and Letters of Credit for Regulatory Permits (New Hampshire Town and City, January 2011, David R. Connell)

CW read from Performance Bonds and Letters of Credit for Regulatory Permits: “Under RSA 236:9-:11, written permission from the governing body or highway agent is required to disturb the surface, shoulders, ditches or embankments of a Class IV, V or VI highway. The highway must be restored ‘to a condition at least equal to the condition that was present before the excavation or disturbance.’ The municipality may require security in the form of a bond by an insurance company, letter of credit or cash.” CW said that Attorney Fillmore had advised that the board of selectmen, not the planning board, should be the bonding authority for the work proposed on Thompson Road. (Compare RSA 236:10 with RSA 674:36, III, (b).) Attorney Fillmore suggested that the planning board recommend a bond to the selectmen.

CW said that he wanted to send the selectmen a list of matters that are the selectmen’s responsibilities.

CW said that Attorney Fillmore said that the matters for which the selectmen are responsible can be made conditions precedent to final approval.

CW referred to Lapse of Subdivision Performance Bond or Letter of Credit. This article says what can go wrong with performance security. The bond must have specific criteria defining what failing to perform means; otherwise, the surety company may resist paying a claim. The transfer of the bond required by the NH Department of Transportation (“NH DOT”) from the town to AHG Properties is relevant to the release of the bond.

CW wants to have a work session in two weeks to review what should be in the letter to the selectmen. The planning board has only yesterday received information from AHG responding to the board’s letter of January 9, 2013. CW thought that it did not make sense to discuss this information without giving the board members time to study it, but CW will let board members comment if they want to comment.

CW said that Jennifer McCourt had addressed his concern in respect to “as amended from time to time.” Jennifer McCourt has also submitted newly revised documents.

CW said that the board of selectmen has a group of things that only the selectmen can do, and the planning board can do nothing until the selectmen do their things. The board of selectmen is doing nothing. The selectmen have not even acted on whether to authorize the issuance of building permits on the class VI highway Thompson Road. (RSA 674:41, I, (c), (1).)

BM asked whether the planning board’s meeting two weeks from now would be working on compiling a letter to the selectmen listing the selectmen’s responsibilities. The planning board needs to recommend the two bonds that the selectmen must provide: (1) the bond that the selectmen must provide to the NH DOT and (2) the bond that the selectmen must provide to the town. The selectmen must request the town bond, and the selectmen must supply the NH DOT bond, but the selectmen can require AHG to provide both bonds. The planning board defines the third bond, for the internal infrastructure.

CW said yes. CW agreed that the planning board is responsible for the bond for the internal infrastructure. CW wants to have a draft letter written for the meeting in two weeks. CW will ask LGC to help in writing this letter. The letter will set forth clearly what are the planning board’s responsibilities and what are the selectmen’s responsibilities. If the planning board agrees with the letter, then CW will send it to the selectmen and a copy to AHG.

CW thought that the planning board could meet in two weeks. LGC has been very helpful even though only two attorneys are available in the office. CW will distribute to the board all of the information that CW gets from Attorney Fillmore. Attorney Fillmore said that nothing that the planning board is requesting is unreasonable.

BM said that he had asked Jennifer McCourt some questions. BM is happy with most of her answers, but BM still has concerns with the movement of Kathy Bleckmann’s stone wall. Jennifer McCourt provided a letter from surveyor Jacques Belanger explaining his reasoning that the stone wall is within the Thompson Road right-of-way. Jacques Belanger derived the boundary of Thompson Road as the boundary of the Stockman subdivision survey of 1990. Measuring two rods (33 feet) from that stone wall put the Bleckmann stone wall within the right-of-way. BM disagreed because the stone wall movement would have been on the Stockman side if Bleckmann had subdivided first. BM said that he had once been a licensed land surveyor, that the center line of the highway is halfway between the stone walls, and that the each right-of-way line is one rod from the center line. BM explained that surveying has a priority list. If the surveyor is looking for a boundary, then what is on the ground and described is the boundary. For example, if the deed says, “starting at a stone post at the corner of Main Street and Elm Street, then going 100 feet to another stone post on Main Street,” and if a surveyor finds that the distance between stone posts is only 98 feet, then the stone posts are nonetheless the boundaries; the surveyor does not move one stone post to get the boundary. Jacques Belanger said that Kathy Bleckmann’s stone wall is “scattered.” BM said that the stone wall is a stone wall and that he took pictures. Jennifer McCourt said that AHG would rebuild the stone wall, but AHG will not rebuild the hardwood trees lining the stone wall. BM has difficulties with the planning board recording the AHG plan. Either both stone walls are within the right-of-way, or the stone walls are at the right-of-way lines.

CW said that AHG is basing her purported right to move the stone walls on the Stockman subdivision plat that the planning board chair signed in 1990. AHG claims that that planning board approval certifies the Thompson Road boundary on the Stockman side of Thompson Road. Only the town can move the Bleckmann stone wall, and, if the town does not approve Stagecoach Station, then “they” cannot move the stone wall. If the town were going to move the stone wall, then the town would speak to Kathy Bleckmann and would seek her consent. There would be eminent-domain issues, but AHG is not the town. CW spoke to highway agent George Bachelder and showed him the plan, and George Bachelder was skeptical that AHG could move the stone wall. Jacques Belanger’s logic anticipates Jacques Belanger’s conclusion in order to reach that conclusion. CW said that the stone walls are sacred. Case law says that the stone walls supersede the right-of-way argument because stone walls are permanent monuments.

BM said that the town could move the stone wall if there were a major public interest. Then there would be grounds for eminent-domain proceedings, but this proposed movement is just for the benefit of a particular person. BM said that the design does not require the stone wall to be moved and that the movement does not benefit the town.

CW said that the layout record specified a width of two rods.

BM said that the stone walls were placed wrong but that they are still the boundaries.

PH said that the extent of the stone wall movement is very small.

BM said that the stone wall movement is for a drainage ditch.

PH said that he disagreed with Jennifer McCourt’s justification of the phrase “as amended from time to time.” Jennifer McCourt had said that AHG would need to adjust certain boundaries every time AHG sold a house. PH said that all of these boundaries should be on the drawing now.

PH referred to Jennifer McCourt’s justification to move the stone wall. PH disagreed that the 1990 approval of the Stockman subdivision was town permission giving AHG the right to move the Bleckmann stone wall.

CW agreed with PH. CW can find no law authorizing the planning board to permit moving the stone wall.

PH said that the board of selectmen could move the stone wall via eminent domain if the movement would benefit the town. But the stone wall movement will benefit only AHG and her development.

BM said that the Stockman subdivision plan does not show the center line of the Thompson Road right-of-way. The Stockman subdivision does not say that the Bleckmann stone wall is within the Thompson Road right-of-way.

PD said that he was unconvinced that the planning board’s approval of the Stockman subdivision gave permission to move the Bleckmann stone wall. PD asked whether the conditionally approved Stagecoach Station plat said that the stone wall would be moved.

BM said that the stone wall was shown and described as “relocated.” AHG has since changed the plan and could have negotiated an easement with Kathy Bleckmann, as AHG did with Larry Stockmann, but AHG did not negotiate an easement with Kathy Bleckmann.

CW said that the planning board needs to hear that the board of selectmen has approved the movement of the stone wall. AHG has cited no statute justifying the movement. CW agrees with BM: the stone walls are the boundary markers.

BM said that AHG’s own attorney said that the town could move the stone wall because it is in the right-of-way. BM does not agree with AHG’s statement, but even so, the town has made no move to move the stone wall.

CW said that the town’s rights would show if the town were using Thompson Road. But only Stagecoach Station will use Thompson Road.

BM said that AHG can redesign her plans and not move the stone wall.

CW said that he still objected to the phrase “as amended from time to time.” CW cannot forget the chain of e-mails between Laura Spector-Morgan and Andrew Sullivan (August 13 and 14, 2012), or the discussion between CW and Andrew Sullivan on December 6, 2012. Both of those discussions were clear in talking about the open space conservation area. Both discussions never mentioned the building areas. To say now that they were talking about the building areas and not the open space conservation area is “a hard sell.”

BM said that AHG had reworded paragraph 1, [B] of the conservation restriction. “as amended from time to time” has been replaced with “(which Plan may be amended from time to time but not in manner which would affect the Open Space Common Area)” BM said that he will not object if the revised wording “sticks.”

CW said that only the AHG checklist would be on the next meeting agenda.

AGENDA ITEM 8: Master Plan Committee’s Town Wide Survey

JP returned to the board.

PD remained at the table to discuss the master plan committee’s draft town-wide survey.

PD said that the master plan committee hoped to send out the survey by the end of the month.

CW asked whether the survey would be electronic.

PD said that there would be an electronic component but that the survey would also be via U.S.P.S. mail.

CW asked whether the master plan committee would confirm that electronic responses would be from Pittsfield residents.

PD said yes.

CW said that the survey is trying to do too much.

PD said that the survey is trying to address all areas of the master plan. The master plan committee is aware of the length problem. The master plan committee is trying to reduce the length to four pages.

CW suggested focusing on really essential questions.

JP said that the first question of the questionnaire seemed loaded. JP is not a planner and knows that he could suggest something that seemed like a good idea but would have unintended consequences. Before the board suggests doing something that the board says would reduce taxes, JP wants to see data that that action actually would reduce taxes. JP cited a presentation to the planning board 10 or more years ago by someone from or sponsored by Central NH Regional Planning Commission saying that the town must be careful about how it views commercial or residential development because such development may have an impact on taxes different from what the town expects. The presenter presented data showing that commercial development not managed properly can make taxes skyrocket. JP does not want the questionnaire to suggest that the planning board knows something that the planning board does not know. JP wants to find knowledgeable people to consult. JP said that some of the questions should have a “none of the above” option to avoid biasing the question. JP would also like to see some questions on how the town might adjust the use table in the zoning ordinance to make the zoning ordinance serve the town better.

CW asked whether the master plan committee had used outside resources.

PD said that the master plan committee is using the Central NH Regional Planning Commission. Ruairi O’Mahony compiled the survey from master plan committee discussions.

CW said that, from the planning board’s point of view, knowing how people want to use their land is important, but adding these questions would add another section.

CW asked where the master plan committee was getting the money for the survey.

PD said that local businesses had donated the money.

AGENDA ITEM 9: Selectman’s Report – Gerard LeDuc, Selectman Ex Officio

CW cancelled the selectman’s report because the hour is well after 9:00 PM.

AGENDA ITEM 10: Members’ Concerns

CW cancelled the members’ concerns period because the hour is well after 9:00 PM.

AGENDA ITEM 11: Public Input

Carol Lambert said that the presentation that JP had mentioned was from University of New Hampshire Cooperative Extension. University of New Hampshire Cooperative Extension collects data on how development affects taxes, and Carol Lambert has a contact that she can give to PD. Carol Lambert suggested having University of New Hampshire Cooperative Extension present to the master plan committee.

Carol Lambert said that AHG’s agents are “silver-tongued devils.” They will find a way to circumvent the conservation restriction. AHG told Carol Lambert 10 years ago that AHG was going to develop in the area now designated open space. Andrew Sullivan said that AHG still wants to be able to develop in the open space. Carol Lambert asked the board to insist on the phrase “permanent conservation easement” in the conservation-restriction document. AHG will return at some time and request permission to develop in the open space. AHG will try to exploit any opening no matter how small. Carol Lambert was grateful for all of the work that the board had done on the stone wall.

Al Berry said that he was grateful for the board’s diligent work on Stagecoach Station. Al Berry said that he too was concerned about the open space because his property abuts the open space. Development in the open space would severely diminish his property’s value.

Al Berry referred to Romeo Dubreuil’s concerns on January 24, 2013, that the septic system might leak if the town did not require as-built plans for the septic system. If the septic system leaks and contaminates Al Berry’s well, then Al Berry’s property will be worthless.

BM said that he had asked Louis Berger Group to quote on inspection including providing as-built plans of all underground stuff.

JP, speaking from the audience, said that he appreciated the board’s diligent work under difficult conditions.

JP referred to the e-mail exchange between Andrew Sullivan and Laura Spector-Morgan (August 13 and 14, 2012), and Andrew Sullivan’s explanation of the phrase “as amended from time to time” on December 6, 2012. JP said that, in respect to the conservation restriction, AHG has become “the boy who cried wolf.” First, AHG said that she wants a back door. Then, on December 6, 2012, Andrew Sullivan said that AHG continued to want a back door. Now AHG says that she needs the “as amended from time to time” language because AHG must record a new site plan every time AHG sells a new house. JP disagreed with this explanation. JP said that AHG did modify paragraph 1, [B], but did not modify paragraph 1 [A], which is the paragraph that talks about building. JP has done much deed research and has never seen a subdivision that then records successive plans. For example, Bailey Park got a subdivision approval, and the developer wrote deeds from that one approved plat. Every deed cites the same plan. There are not multiple plans for Bailey Park. JP cited the Condominium Act (RSA 356-B). AHG is supposed to have the locations of the building footprints right now, when she records the declaration. (RSA 356-B:20, II.) AHG should not modify the building footprints, much less the open space. Even if AHG did need to record successive plans, the conservation restriction can still be defined in terms of the original recorded plan. AHG is trying to convince the board that the “as amended from time to time” language means nothing. If the language means nothing, then it should come out. JP agrees with Carol Lambert: the language is in the conservation restriction for a reason. Jennifer McCourt cited no law requiring the successive plans, and JP looked for but could not find any such law.

JP said that the board appears to be confused about property boundaries, right-of-way boundaries, and stone walls in respect to highways. A Hard Road to Travel, 2004 edition, says on page 1 that municipal officials often think mistakenly of highways as town-owned land. This way of thinking is absolutely wrong. Page 1 says that a highway is an easement held in trust by government for use by the public. Strictly speaking, the town does not even own the easement; the town is merely the trustee. Abutters own to the center line of the highway; the center line of the highway is the property boundary. The stone walls are the municipality’s notice of where the highway use ends, and this notice supersedes the statement of width in the layout record. These two statements are holdings of Hoban v. Bucklin, 88 N.H. 73, 184 A. 362 (1936). JP read from Hoban v. Bucklin:

“The erection of a fence or wall as a permanent structure along the side of a wrought road is more probably than not intended to mark the line separating highway use from private occupancy and possession, in the absence of evidence that it was not thus intended. As physical barriers such structures, especially stone walls apparently designed as permanent boundaries, normally denote separation and distinction of use, and are notice of the line to which use is made. … Although laid out three rods wide, it may not be possible to locate the lines to such a width. … only so much width can be established as the evidence shows has been taken and used for highway purposes.”

JP emphasized that the stone walls define the right-of-way boundaries, not the abutter property boundaries.

BM said that the stone walls can be used as property boundaries.

JP agreed and cited A Hard Road to Travel, 2004 edition, page 29. Property boundaries are often measured relative to the roadside stone walls even though the actual property boundary is at the center line of the highway.

JP said that Jennifer McCourt and Jacques Belanger probably had seen the discussion of roadside stone walls used to measure property boundaries. Their explanation that the roadside stone walls do not bound the highways parallels an argument that A Hard Road to Travel, 2004 edition, discusses on pages 28 and 29 and says is wrong. AHG’s justification to move the stone wall, and her justification of the “as amended from time to time” language are both contrived. It is time for the planning board to tell AHG that she must delete the “as amended from time to time” language and that she cannot move the stone wall.

JP said that the planning board had said that the board of selectmen can move the stone wall. The board of selectmen cannot move the stone wall without first finding that the public good requires the movement, and then going through eminent-domain process. The alterations of Thompson Road and the effects of those alterations—the movement of Kathy Bleckmann’s stone wall and the use of Sargent land for drainage—are eminent-domain matters that no one—not the planning board, not the board of selectmen, and not the NH DOT—has the authority to approve without the board of selectmen’s first finding a public need. (RSA 231:8.) The Sargents and Kathy Bleckmann have the constitutionally protected right to procedural due process. At present, the Sargents do not have to prove that more water will flow through the state culvert, and the NH DOT should not say that the Sargents have suffered no harm, because the NH DOT is not the eminent-domain authority here. Instead, the board of selectmen must first prove that the improvement of Thompson Road is necessary for the public good. Only then do the Sargents have to complain of damage. The planning board cannot approve an eminent-domain process until the board of selectmen has found a public need.

AGENDA ITEM 12: Adjournment

PH moved to adjourn the meeting.

BM seconded the motion.

Vote to adjourn the planning board meeting of February 7, 2013: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of February 7, 2013, is adjourned at 9:40 P.M.

Minutes approved: February 21, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on February 11, 2013, from notes that I made during the planning board meeting on February 7, 2013, and from copies of the two Town tapes that Chairman Clayton Wood made on February 11, 2013.

____________________________________________
Jim Pritchard, planning board recorder and secretary

two Town tapes.