January 24, 2013 Minutes

These minutes were posted by the Planning.

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

DATE: Thursday, January 24, 2013

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:03 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; and
Peter Dow (PD), alternate planning board member.

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

Other town officials present: Romeo Dubreuil, member of the zoning board of adjustment, was present but appeared as a member of the public.

Members of the public appearing before the planning board:
Romeo Dubreuil, 59 Johnson Road, Pittsfield NH.
Carol Lambert, 83 Governor’s Road, Pittsfield, NH.

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

AGENDA ITEM 3: Agenda Review

CW said that he would add the January 17, 2013, minutes for approval.

CW reminded the board that the board has a public hearing scheduled on February 7, 2013, for the Treem-Gendron lot-line adjustment. CW said that he would like the board to determine whether to accept the application as complete, and to begin the hearing on the merits both on February 7, 2013.

CW said that a public hearing is optional for a lot-line adjustment. (RSA 676:4, III, and subdivision regulations section 5, C, 4.) The board will have a public hearing on the Treem-Gendron lot-line adjustment because the board gave notice of a public hearing.

CW said that a lot-line adjustment is a minor subdivision. (RSA 676:4, I, (e), (1); and subdivision regulations section 5, C, 1, (c).)

CW referred to the map of the lot-line adjustment. CW said that the review of Central New Hampshire Regional Planning Commission had found another setback nonconformance, which may be grandfathered. The board will have to determine whether the nonconformance is in fact grandfathered.

BM asked why a lot-line adjustment is a subdivision. BM said that a lot-line adjustment does not increase the number of lots.

CW cited RSA 676:4, I, (e), (1), and subdivision regulations section 5, C, 1, (c). But a lot-line adjustment qualifies for lesser scrutiny. (RSA 676:4, I, (e), (1); and RSA 676:4, III.)

CW said that he would like to review the review process after the board decides the Treem-Gendron application. The board should consider doing the merits review on a night separate from the completeness review. Trying to do both reviews in one night may be too much.

AGENDA ITEM 5: Citizen Petitions Public Hearing Rescheduled to February 4

CW referred to the board’s mistake in failing to post notice for hearings on the citizen petitions originally scheduled for tonight. The board rescheduled the hearings and published and posted proper notice. The board is meeting tonight as a courtesy to anyone who may not have learned of the rescheduling.

No members of the public were attending for the citizen petitions.

AGENDA ITEM 4: Approval of minutes of January 3, 2013, minutes of January 15, 2013, and minutes of January 17, 2013.

BM moved to approve the minutes of January 3, 2013, as written in draft.

JP seconded the motion.

Discussion:

JP said that the initials “(PD)” should be added after PD’s name in the roll call.

Vote to approve the minutes of January 3, 2013, with the change that JP requested: carried 4 – 0 – 0. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

Following the meeting, JP (the recording secretary) noticed that agenda item 8 was mislabeled in the draft minutes as agenda item 11. JP corrected this error with the chair’s permission.

BM moved to approve the minutes of January 15, 2013, as written in draft.

JP seconded the motion.

Discussion:

JP requested the following changes:

PH should be identified as an associate member of the zoning board of adjustment (“ZBA”), not as the vice-chair of the ZBA.

Paul Sherwood should be identified as the vice-chair of the ZBA, not as an associate member of the ZBA.

The description of Linda Small’s closing statement as written in draft:

“Acting chair of the board of selectmen Linda Small refused to permit follow-up questions and adjourned the meeting at 6:14 P.M.”

should be changed to say as follows:

“Acting chair of the board of selectmen Linda Small refused to permit follow-up questions, but she invited the public to submit any follow-up questions in writing to the town administrator. The selectmen will provide answers as soon as they can. Linda Small adjourned the meeting at 6:14 P.M.”

Vote to approve the minutes of January 15, 2013, with the changes that JP requested: carried 4 – 0 – 0. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

BM moved to approve the minutes of January 17, 2013, as written in draft.

JP seconded the motion.

Discussion: None

Vote to approve the minutes of January 17, 2013, as written in draft: carried 4 – 0 – 0. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 6: Checklist and Schedule for Compliance Hearing Regarding the Conditional Approval for the Stagecoach Condominium Subdivision (Map R44, Lot 1)

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

PD remained seated but in JP’s place.

CW listed some of the materials that the board had received recently in respect to AHG Properties’ Stagecoach Station:

Carol Lambert had sent the board information on amending or terminating conservation restrictions.

Carol Lambert’s attorney, Scott Hogan, had sent the board two letters on Carol Lambert’s behalf.

CW had sent AHG a letter dated January 9, 2013, stating the board’s concerns in respect to (1) the phrase “as amended from time to time” in the conservation restriction and (2) AHG’s proposed movement of the stone wall bounding Kathy Bleckmann’s field. The phrase “as amended from time to time” is inconsistent with subdivision regulations section 5, K, 4, and the board can find no law allowing AHG to move the stone wall. AHG has not answered this letter yet.

JP had sent the board a letter asking the board to require (1) a written statement from the NH DOT that the selectmen’s responsibilities under the driveway permit are delegable to AHG and (2) a written statement from the Pittsfield Board of Selectmen that the selectmen have delegated to AHG the selectmen’s responsibilities under the driveway permit.

Hank Fitzgerald had sent the board of selectmen a letter complaining about JP’s record-keeping.

Larry Stockman had sent CW an e-mail complaining about the selectmen’s meeting on January 15, 2013.

The board of selectmen had sent the planning board copies of the prepared statements of town attorney Laura Spector-Morgan and Central New Hampshire Regional Planning Commission representative Matt Monahan.

CW said that he wanted to begin discussion of the open issues preventing final approval of Stagecoach Station. CW expected that today’s discussion would prepare for more substantive discussion on February 7, 2013.

CW referred to his letter of July 15, 2012, asking for various materials from AHG. CW said that the board had received all of these materials in one form or another. Board members must be sure to have the most recent versions of these materials at the February 7, 2013, meeting. The board has asked AHG to remove the phrase “as amended from time to time” from the conservation restriction. AHG has not changed the condominium declaration submitted on December 6, 2012. CW wants AHG’s up-to-date bond proposal. In addition, the selectmen must get a waiver of maintenance liability for a class VI highway and must decide whether to authorize the issuance of building permits on a class VI highway. The board has asked AHG to justify her proposal to move the stone wall bounding Kathy Bleckmann’s field.

CW said that the board would have to hold a public hearing before the board could decide whether AHG had satisfied the conditions of the conditional approval. The board must address at least two issues at the public hearing: (1) the bonding and (2) the changes to the class VI highway. AHG proposed changes to Thompson Road in 2008, after the board granted conditional approval on April 19, 2007. Because these changes happened after the 2007 conditional approval, they are subject to hearing. The board may decide, at the February 7, 2013, meeting, that other issues do not have to have a hearing.

CW said that, in the future, he will distribute materials as they arrive. The board’s prior practice has been that the chair distributes materials when they are ready for the completeness review.

CW said that he hoped that, by the end of the February 7, 2013, meeting, the board would be able to schedule the compliance hearing for March 7, 2013. Both the board’s rules of procedure and the subdivision regulations say that the board should use regular meetings to review this kind of material.

CW said that the board should know, by February 7, what materials the board needs from AHG and when the board needs those materials.

CW said that he would call a continuance if the board of selectmen had not acted on the Stagecoach Station project by March 7, 2013.

CW said that AHG had not answered the question of the stone wall.

CW said that he had informed AHG of the “as amended from time to time” problem. How to respond is up to AHG.

CW said that the board could use the March 7 meeting to prepare if necessary, but the board should try to be ready for the compliance hearing on March 7.

BM presented what he called a “punch list” of issues that BM thinks concern the planning board. BM said that the planning board should do the things that the planning board needs to do, and that the board of selectmen should do the things that the board of selectmen needs to do. The planning board should not worry about what the board of selectmen is not doing.

BM said that the town attorney had said that the condominium declaration is off limits to the planning board, but BM disagrees because AHG submitted the condominium declaration after the conditional approval of 2007.

BM said that he is not ready to vote final approval while the conservation restriction still has the phrase “as amended from time to time.”

BM said that the condominium declaration has worrisome provisions for the fees on unsold lots. What will happen to the open space if the condominium association is dissolved?

BM referred to his estimate of the bond amount and said that his estimate has reliable support. BM said that the board should not wait for AHG to make a bond proposal. BM said that determining the bond is the board’s responsibility.

PH referred to the phrase “as amended from time to time” in the conservation restriction and said that the arrangement of houses and driveways appears to anticipate building more houses in the open space.

PH agreed that Stagecoach Station should be fully bonded for all of its infrastructure because the town will have a mess if the project “falls apart.” PH referred to the argument that no building permits will be issued until all of the infrastructure is finished. PH thought that the developer might seek building permits when the infrastructure is partially finished, enough to support a small number of houses. The town has a very good building inspector now, but past building inspectors have not been so diligent, and a future building inspector might not be so diligent. The town needs to ensure that the whole infrastructure is in fact put in place before the town allows houses to be built.

BM agreed with PH. The performance bond should be either to complete construction or to remove unfinished construction.

CW said that the bonding is a key element of the Developer Improvement Agreement. How the money is released is another key element of the Developer Improvement Agreement. The release of the money should not be left to a future planning board.

BM said that the bonds must be provided by a surety company licensed in New Hampshire.

PH said that the release of bond money should be tied to completion of systems. Half of the money should be returned when half of the systems are complete, not half of the money is returned when all systems are half complete.

BM suggested going to a surety company for suggested bond-release language.

CW said that the Developer Improvement Agreement must have these provisions. The Developer Improvement Agreement is more important than the condominium covenants. This board must create the release schedule and not leave the release to a future board.

PH referred to Kathy Bleckmann’s stone wall. PH said that someone at the selectmen’s meeting of January 15, 2013, possibly the town attorney, had said that the movement of the stone wall is strictly a matter between Kathy Bleckmann and AHG and is not the planning board’s business.

BM confirmed that it was the town attorney who had said that the movement of the stone wall is strictly a matter between Kathy Bleckmann and AHG and is not the planning board’s business. The town attorney had said that the stone-wall situation is like the road-widening easement that AHG negotiated with Larry Stockman. An agreement to move the stone wall just has not happened yet. BM disagreed with the town attorney because the stone wall might be half owned by Kathy Bleckmann and half owned by the town.

CW said that the stone-wall movement is critical to a drainage ditch and to all of the storm-water calculations saying that AHG will not flood the Sargent land. If AHG cannot move the stone wall, then those calculations are irrelevant and the plat is useless. The planning board cannot grant permission to move the stone wall.

BM said that the town attorney had said that AHG would just have to redesign her drainage if AHG did not get permission to move the stone wall. But if AHG has to redesign her drainage, then the NH DOT driveway permit is no longer valid.

CW said that the drainage issue is not the planning board’s problem; it is the selectmen’s problem because the selectmen signed the driveway permit. AHG never discussed moving the stone wall during the original review. CW acknowledged that the stone-wall movement is shown on the plat of 2007, but that plat gives no indication of why the stone wall is to be moved.

BM said that, in 2007, AHG had said that she would to negotiate an agreement with Larry Stockman to widen Thompson Road. BM thought that AHG would negotiate a similar agreement with Kathy Bleckmann to move her stone wall. When BM asked Kathy Bleckmann whether she had agreed to the stone-wall movement, she knew nothing about it.

CW said that the NH DOT had evaluated the storm-water calculations to determine that AHG would not increase the total volume of water flowing through the state culvert onto Sargent land. But no one checked whether AHG had permission to move the stone wall or why AHG needed to move it.

BM said that AHG’s surveyor, Jacques Belanger, had determined that the center line of Thompson Road is in a particular place and that the stone wall is less than one rod from the center line. (One rod equals 16.5 feet.) BM said that he is still waiting for Jacques Belanger’s justification of his determination, because there is evidence that the stone wall is a boundary. Kathy Bleckmann may be a one-half owner of the stone wall, and the town may be a one-half owner of the stone wall.

CW said that AHG argues that the stone wall is not Kathy Bleckmann’s boundary, but the counter argument is that AHG must prove that the stone wall is not the highway boundary. CW cited A Hard Road to Travel and the case law that A Hard Road to Travel cites. According to the case law, the stone wall supersedes the center line. The NH DOT has no information on Thompson Road.

PH read from A Hard Road to Travel (2004 edition), page 28: “The wall or marker can be moved without penalty only by the authority of the legislature or a court, or ‘by mutual agreement between all landowners whose property lines are affected by the moving of the boundary.’” Kathy Bleckmann knew nothing about the stone-wall movement until BM spoke to her about it. Kathy Bleckmann came to the selectmen’s meeting on January 15, 2013, but Kathy Bleckmann has not been actively involved in the review proceedings for Stagecoach Station. Will AHG argue that Kathy Bleckmann’s detachment from the proceedings indicates that Kathy Bleckmann does not care about the stone wall?

CW said that Kathy Bleckmann’s detachment from the proceedings does not relieve the planning board of its responsibility to ask for proof of AHG’s right to move the stone wall. Attorney Sullivan had argued that Kathy Bleckmann did not own the wall, but CW thought that the stone wall placement against her field is evidence that Kathy Bleckmann does own the stone wall.

PH said that the town does not own the land under Thompson Road. The abutters own to the center of the road.

BM disagreed. BM said that the town owns public roads. Abutters own nonpublic roads to the center line.

BM agreed with CW that the board should require AHG to prove that she has the right to move the stone wall.

CW said that the selectmen are the only people who can move the stone wall, and even they cannot move it without at least notifying abutters.

PH agreed.

BM said that the wall is a boundary between Bleckmann land and town land, and it cannot be moved without eminent-domain proceedings to take land for a public purpose. Stagecoach Station is not a public purpose.

CW cited A Hard Road to Travel and said that AHG has to prove that the stone wall does not mark the boundary of the highway.

BM said that the town highway agent, George Bachelder, said that the stone wall defines the boundary.

PH cited Hoban v. Bucklin, 88 N.H. 73, 184 A. 362 (1936). This case spells out who owns the stone wall.

CW said that this case law is good to know, but it is not for the planning board to tell the law to AHG. AHG must prove that she can move the stone wall.

BM said that, if AHG redesigns the drainage, then AHG will have to get new NH DOT approval.

CW agreed. Contrary to the town attorney’s advice, the stone-wall movement and its associated drainage issues are the planning board’s concern.

CW summarized the three issues that the board had addressed so far:
(1) the phrase “as amended from time to time” in the conservation restriction.
(2) bonding.
(3) stone wall.

BM said that he had asked the selectmen’s meeting of January 15, 2013, why did the phrase “as amended from time to time” need to be in the conservation restriction. The town attorney did not answer.

PH said that he had asked whether the conservation restriction could be amended. The answer should be “no,” but, after all of the town attorney’s waffling, her answer was basically “yes.”

BM said that he had listed four bonds that he wanted to see. The last bond that BM had listed, an indemnity bond, was BM’s creation. This is a bond to protect the town from liability if the town must take ownership of one or more condominium units because of tax default. Stagecoach Station differs from a conventional subdivision because, in Stagecoach Station, the town may become a majority owner in the condominium association. BM wants the board to think about his indemnity bond suggestion.

CW said that AHG claims that she does not have to bond the internal infrastructure because she had told the previous board that she would not bond the internal infrastructure.

BM said that bonding is still an open issue because “the board never addressed bonding. There was never a bonding request made in writing.”

CW said that this project has great risk because the infrastructure will cost more than $1,000,000 before AHG can build a single house.

CW said that the selectmen should have been more involved in the stone-wall movement.

PD said that the planning board should include on the plat a statement that endorsement does not imply permission to move the stone wall. PD said that past planning board approvals had been construed as giving permission to do things that the planning board has no authority to permit.

CW said that the board of selectmen does not understand its responsibilities. At the January 15, 2013, meeting, they thought that they were addressing the planning board’s responsibilities. The selectmen and the town attorney treated BM and PH as if these matters were the planning board’s responsibilities, not the selectmen’s responsibilities.

BM said that the planning board should address its own responsibilities and ignore the selectmen’s responsibilities.

CW said that the selectmen want the planning board to approve something, and then the selectmen say that the planning board’s approval obligates the selectmen. If the planning board’s approval obligates the selectmen, then the planning board has the right to ask questions of the selectmen.

CW said that the planning board must decide on the material that the board needs from AHG, and the board must decide on the bonding.

CW said that the board must act on this application. The board has sought help from town attorney Laura Spector-Morgan. She has not helped. CW does not want to bring town attorney Spector-Morgan to the board.

BM said that the planning board “is an autonomous board.” BM wondered whether the board has the right to hire its own attorney and make the selectmen pay for that attorney.

CW said that the board should assemble the material and then vote, doing the best with what the board knows.

PD said that the developer probably pushes the envelope of the regulations to the point of denial and, by that denial, finds the boundary of approval and retreats to it with a new application.

CW said that the process that PD had described is an expensive way for a developer to get an approval. CW said that he had told AHG’s attorney Andrew Sullivan several times that the phrase “as amended from time to time” is objectionable. The board has done what it can to let AHG know that there is a problem.

PD asked why is refiling an application expensive.

CW said that refiling is expensive because the applicant has to start all over at the zoning board of adjustment.

PD said that all of the engineering is already done.

BM said that the applicant can appeal the planning board’s decision.

BM said that the board had never before voted on whether the chair should endorse the plats for other projects.

CW said that the chair does not have the authority to endorse a plat without a vote of the board. (RSA 676:4, I, (i).) Stagecoach Station is very complicated and presents many issues for the board to consider.

CW asked board members to be prepared for the February 7, 2013, meeting. CW said that he had asked the selectmen to decide whether to authorize the issuance of building permits on the class VI highway.

BM said that the authorization of the issuance of building permits on the class VI highway is a statutory condition. (RSA 674:41, I, (c), (1).)

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

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

AGENDA ITEM 9: Members’ Concerns

The agenda had items 7 and 9 but not 8.

PH asked whether the board would consider JP’s letter.

CW said that he had not intended to consider JP’s letter tonight.

BM said that JP’s letter is a problem for the board of selectmen, not for the planning board. How the selectmen allow people to do things on class VI highways is not the planning board’s concern.

PH referred to JP’s request to get a written statement from the DOT confirming that the selectmen can delegate to AHG the selectmen’s responsibilities under the driveway permit. PH asked CW to get this statement in writing. The written statement will resolve the issue.

CW agreed to request the written statement.

BM objected to the request. BM said that the DOT cannot tell the selectmen what the selectmen can and cannot do with the DOT driveway permit.

PH disagreed. The DOT wrote the driveway permit.

BM said that the town has delegated its driveway-permit responsibilities to Larry Stockman for years.

AGENDA ITEM 10: Public Input

JP, speaking from the audience, said that he was concerned by the board’s attitude that the selectmen are responsible for all of the Thompson Road matters. JP did not think that the board of selectmen has all of the responsibilities that the planning board thinks that the selectmen have, and JP completely disagreed with BM’s statement that the DOT cannot tell the selectmen what the selectmen can and cannot do on a state highway. Nobody, including the selectmen, can do anything on a state highway without the DOT’s permission, and a driveway permit says what someone can and cannot do on a state highway. A most basic principle of law is that towns cannot do anything without being empowered by the state. The same principle is true for the power to delegate responsibility. The fact that the driveway permit does not say that the selectmen have the power to delegate their responsibility means that the selectmen do not have this power. This is why the planning board must go to the DOT and ask whether the DOT intends to grant permission to the selectmen to delegate to AHG.

JP said that he did not know where the planning board gets the idea that the board of selectmen is responsible for Thompson Road. This idea seems to be an urban legend that everyone just knows. JP read from the town attorney’s e-mail of November 2, 2012: “As I understand it, the selectmen’s remaining role will be to decide whether to allow building permits to be issued for the subdivision pursuant to RSA 674:41.” The town attorney says nothing about delegating responsibilities under the driveway permit, or permitting paving, or checking drainage ditches or stone walls, and JP can find nothing in the statutes that says that the selectmen must attend to these matters. JP referred to Linda Small’s introductory statement on January 15, 2013, which says the same thing as the town attorney’s statement. The board of selectmen’s only function in this case is to decide whether to authorize the issuance of building permits pursuant to RSA 674:41.

JP said that the DOT driveway permit does not say that the selectmen can delegate their responsibilities, and advice from the town attorney and verbal assurances from the DOT now will mean nothing in a future lawsuit. Due diligence requires the planning board to get a written statement from the DOT saying that the selectmen can delegate to AHG the selectmen’s responsibilities. Failure to get such a statement puts the town at risk.

JP said that his neighbor Al Berry could not be present tonight, but Al Berry had asked JP to say that he supported JP’s request for the written statement from the DOT.

Carol Lambert thanked the board for its discussion tonight, which was better than previous meetings. Carol Lambert agreed with JP that the board must get the written statement from the DOT to eliminate any ambiguity.

Carol Lambert said that the board has a problem with the town attorney. For the town attorney to approve leaving in the phrase “as amended from time to time” is shocking when the town attorney knows from the developer’s e-mail that the developer is trying to retain the option to build in the open space. The board’s concerns about what AHG may ask of future boards are very legitimate.

Carol Lambert said that Kathy Bleckmann was probably confused by BM’s call to her in respect to the stone wall. BM led Kathy Bleckmann to think that the town has the right to move the stone wall.

BM apologized for misleading Kathy Bleckmann.

Romeo Dubreuil agreed with JP’s request for the written statement from the DOT. There is no reason not to ask for the statement.

Romeo Dubreuil asked about the stone wall and what is its significance as a boundary. If the road is discontinued, does not the property ownership revert back to the abutters, with the property lines at the center of the road?

BM said no. If the town discontinues maintenance, then the town still owns the right-of-way.

JP said that Romeo Dubreuil was talking about discontinuing the highway. JP said that BM had been saying that the town owns the land under the highway. JP said that he and BM had had this disagreement many times over the years. JP recommended that BM get and read A Hard Road to Travel. The town owns only the right-of-way; the abutters own the land to the center of the road.

Romeo Dubreuil said that each of the abutters’ property lines reverts to the center of the road if the highway is discontinued. So what does the stone wall bound?

JP said that the issue is where is the boundary of the highway right-of-way, not where is the boundary of Kathy Bleckmann’s land.

Romeo Dubreuil asked whether one could determine the boundary of the highway right-of-way by considering the property lines after discontinuance.

JP said no. JP said that he had distributed Hoban v. Bucklin, 88 N.H. 73, 184 A. 362 (1936), to the board more than once. The law is that the stone wall is the boundary of the highway right-of-way. The board has discussed surveys. Stone wall position does not derive from surveys; surveys derive from stone wall positions. The stone wall marks the boundary of the highway right-of-way as a matter of law.

Romeo Dubreuil said that he sits on the zoning board of adjustment and that he had sat on other boards in other towns before he lived in Pittsfield. Romeo Dubreuil said that he had asked Matt Monahan whether a joint meeting of boards would be inappropriate, and Matt Monahan had said that a joint meeting would not be inappropriate. The boards do not seem to know what each other is doing.

Romeo Dubreuil said that there is no deed protecting the open space. If there is no deed, then the conservation restriction will be unenforceable.

Romeo Dubreuil said that the septic system is a shared septic system and that there is currently no requirement for as-built plans. The plumbers will not build this system exactly according to the current plan, and whoever ends up owning this system will have a nightmare when some pipe breaks in January and when the owner cannot find the leak because the owner has no as-built plan showing where the pipes are. In such a case of a leak, the effluent will be flowing down onto Route 107 and polluting people’s wells. Romeo Dubreuil said that he had seen such problems happen.

BM said that the town has a mechanism for third-party inspection.

Romeo Dubreuil referred to the library in Hopkinton, for which the selectmen had served as building inspectors. The builder installed a radiant heating system in the floor without proper insulation in the foundation. The result was a disaster and astronomical heating bills.

BM said that the town uses Louis Berger Group and that they, along with the town’s own building inspector, will inspect the construction.

Romeo Dubreuil asked whether Louis Berger Group would do an as-built plan. Romeo Dubreuil referred to a cluster development with a shared septic system in Londonderry. The septic system developed a leak, no one could find the leak, and sewage was running down the street.

BM asked JP what is the planning board’s concern with what the board of selectmen has or has not done. BM thinks that people should go to the selectmen to express their concerns about what the selectmen have or have not done. Do not bring these complaints to the planning board.

JP said that the error in BM’s thinking is that things that the planning board thinks are the selectmen’s responsibilities are in fact the planning board’s responsibilities. The planning board was the board that required the improvements to Thompson Road. The planning board was the board that required the driveway permit. The selectmen did not require anything of this developer. This developer needs certain things from the selectmen, but the selectmen are not part of the subdivision-approval process.

JP said that the planning board knows that it cannot give final approval before the selectmen vote to authorize the issuance of building permits. The planning board should know that it cannot give final approval before the selectmen vote to delegate to AHG the selectmen’s responsibility under the driveway permit, but the planning board is confused about this issue. Even if the town attorney is correct in saying that the selectmen can delegate their responsibility under the driveway permit, the selectmen have not done so yet. Consequently, AHG cannot take ownership of the driveway permit, which, in turn, means that the driveway permit does not satisfy the planning board’s driveway-permit condition of subdivision approval.

JP said that the selectmen do not have to delegate their driveway-permit responsibilities to AHG, because the selectmen are not part of the subdivision-approval process. AHG has to go to the selectmen and ask the selectmen to delegate to AHG the selectmen’s responsibilities under the driveway permit, but AHG has not done that, and the selectmen do not have to be proactive on this issue, just as the selectmen do not have to be proactive on the building-permit issue.

JP said that then there is the third issue of voting to permit improvements to the town highway part of Thompson Road. AHG needs the selectmen to allow these improvements, but the selectmen do not have to be proactive on this issue either.

JP said that the selectmen have no responsibilities in this subdivision-approval process because the selectmen are not part of the subdivision-approval process. The planning board created the conditions of subdivision approval, and the planning board is responsible for deciding whether AHG has satisfied those conditions. It is AHG’s responsibility—not the planning board’s responsibility or the selectmen’s responsibility—to go to the selectmen and to ask the selectmen to delegate the selectmen’s responsibilities under the driveway permit; to ask the selectmen to permit improvements to the town-highway part of Thompson Road; and to ask the selectmen to authorize the issuance of building permits on the class VI highway. Just as it is not the planning board’s job to badger AHG about “as amended from time to time,” it is not the planning board’s job to badger AHG about getting necessary permissions from the selectmen, and it is certainly not the planning board’s job to badger the selectmen to do something that only AHG is supposed to request.

JP said that the planning board will probably not process AHG’s application as JP has just described, so JP is trying to plug one giant hole by asking for the written statement from the DOT. If the planning board gets that statement, then at least the selectmen could have delegated their responsibility to AHG. But getting these permissions is AHG’s responsibility, and it is not for the planning board to badger AHG or the selectmen.

BM said that JP was saying the same thing that BM had said: that the planning board should not tell the selectmen what to do and that AHG must go get those permissions.

JP said that that was not how BM had worded his question. The planning board has said that the issues of the road are the selectmen’s responsibility, but the issues of the road are the planning board’s responsibility until the selectmen address them. The planning board must say that the application is not approved until AHG secures a vote for improvements under RSA 236:9. JP said that he was not agreeing with the RSA 236:9 argument but that he was giving it the benefit of the doubt for the purpose of this discussion. The planning board should not go to the selectmen and request a vote. The road situation is just like the conservation restriction: The planning board must say that the application is not approved until AHG removes the phrase “as amended from time to time.” Until AHG takes the road issues to the selectmen, the road issues are an unsatisfied condition, and therefore they are the planning board’s responsibility.

AGENDA ITEM 11: Adjournment

JP returned to the board.

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of January 24, 2013: carried 4 – 0 – 0. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of January 24, 2013, is adjourned at 8:56 P.M.

Minutes approved: February 7, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on January 26, 2013, from notes that I made during the planning board meeting on January 24, 2013, and from copies of the two Town tapes that Chairman Clayton Wood made on January 25, 2013.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.