January 3, 2013 Minutes

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

DATE: Thursday, January 3, 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 (arrived at 7:06 P.M.);
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.

Members of the public appearing before the planning board:
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 asked PD to sit in PH’s place.

CW said that he wanted to add certain matters to the agenda:
(1) The board of selectmen’s meeting on January 15, 2013, will be added as agenda item 5a
(2) JP’s letter of December 26, 2012, requesting that the board address the application of RSA 231:62 and RSA 236:13, I, to the Thompson Road improvement project in the Stagecoach Station project of AHG Properties will be added as agenda item 5b

AGENDA ITEM 4: Approval of Minutes of December 20, 2012

BM moved to approve the minutes as written in draft.

GL seconded the motion.

Discussion:

BM complained that he had previously been identified as an “alternate member” and that he was seeing a “pattern” in the absence of the word “member” after BM’s name in the list identified as “Members present.” BM said that the word “member” should be added after BM’s name.

JP said that he was using the same format that Dee Fritz was using for the other town boards. Because the board members present are identified as “Members present,” the additional word “member” after a board member’s name is redundant.

PH arrived at 7:06 and replaced PD on the board.

CW asked JP whether JP would be willing to add the word “member” after BM’s name.

JP said that he would do so in the next edition as a courtesy to BM.

BM insisted that the word “member” must be added to the December 20, 2012, edition, and that it must be done as a matter of right, not as a courtesy.

JP disagreed that the word “member” should be added as a matter of right.

Vote to approve the minutes of December 20, 2012, with the change that BM and CW requested: carried 4 – 1 – 0. (Voting “yes”: PH, GL, BM, and CW. Voting “no”: JP. Abstaining: none.)

AGENDA ITEM 5: Review Citizen Petitions
a. Frontage
b. Zoning Ordinances

CW said that he would buy an ad in the Suncook Valley Sun for the citizen zoning petitions upon the board’s approving the January 24, 2013, date and notice. The board will put the petitions on the planning board’s web site, but the board will not put the petitioners’ signatures there.

BM suggested noticing the time of one hearing to 7:00 PM and the time of the other hearing to 7:30 PM.

The board agreed that it would notice the time of both hearings to 7:00 PM.

GL moved to set the hour, date, and place of the public hearing on the citizen petition for frontage to 7:00 PM on January 24, 2013, at the Pittsfield Town Hall, 85 Main Street, Pittsfield, NH.

PH seconded the motion.

Discussion: None.

Vote to set the hour, date, and place of the public hearing on the citizen petition for frontage to 7:00 PM on January 24, 2013, at the Pittsfield Town Hall, 85 Main Street, Pittsfield, NH: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

GL moved to use the notice of public hearing as drafted by JP and watermarked December 27, 2012, for the frontage petition.

PH seconded the motion.

Discussion: None.

Vote to use the notice of public hearing as drafted by JP and watermarked December 27, 2012, for the frontage petition: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

GL moved to set the hour, date, and place of the public hearing on the citizen petition to repeal the zoning ordinance to 7:00 PM on January 24, 2013, at the Pittsfield Town Hall, 85 Main Street, Pittsfield, NH.

CW seconded the motion.

Discussion: None.

Vote to set the hour, date, and place of the public hearing on the citizen petition to repeal the zoning ordinance to 7:00 PM on January 24, 2013, at the Pittsfield Town Hall, 85 Main Street, Pittsfield, NH: carried 4 – 1 – 0. (Voting “yes”: JP, GL, BM, and CW. Voting “no”: PH. Abstaining: none.)

GL moved to use the notice of public hearing as drafted by JP and watermarked December 27, 2012, for the repeal petition.

CW seconded the motion.

Discussion: None.

Vote to use the notice of public hearing as drafted by JP and watermarked December 27, 2012, for the repeal petition: carried 4 – 1 – 0. (Voting “yes”: JP, GL, BM, and CW. Voting “no”: PH. Abstaining: none.)

AGENDA ITEM 5a: The board of selectmen’s meeting on January 15, 2013

CW said that Larry Konopka, chair of the board of selectmen, was not making a formal request of the planning board or zoning board of adjustment to be present at the selectmen’s meeting. CW said that he was rescinding his request that all planning board members attend the selectmen’s meeting. Nonetheless, because of the confusion on this matter, CW will post notice of the possible gathering of the planning board. The notice will say that planning board members will not participate in the meeting.

BM said that a gathering of three or more planning board members on planning board business is a meeting. BM wanted to know whether he would have to be silent at the January 15, 2013, meeting?

CW recommended that BM should be silent. CW said that the gathering will be treated as a meeting, but the meeting will not be mandatory. CW said that asking planning board members to attend had been a mistake. CW said that he was withdrawing the request in order to correct the mistake. CW acknowledged that notice is probably necessary because he did make the original request to gather.

JP objected that the planning board meeting would be with the four selectmen—Larry Konopka, Gerard LeDuc, Paul Rogers, and Linda Small—that JP had said were disqualified because they applied for the driveway permit on AHG’s behalf. The town attorney admitted that the selectmen had found no public interest in the driveway permit. The town attorney said that the four selectmen are not disqualified because they were required to apply for the driveway permit, but her explanation is not convincing because she cited no law requiring the selectmen to apply for the driveway permit and because the benefit to AHG is obvious. Because CW called the meeting with the selectmen when CW did not have to call the meeting, the planning board now should explain what law required the selectmen to apply for the driveway permit.

CW said that the gathering is not intended as a joint meeting with the selectmen, but the gathering will be noticed as a planning board meeting. CW asked planning board members not to participate in the meeting with the selectmen, but CW will notice the planning board’s gathering as a meeting.

AGENDA ITEM 5b: JP’s letter of December 26, 2012, requesting that the board address the application of RSA 231:62 and RSA 236:13, I, to the Thompson Road improvement project in the Stagecoach Station project of AHG Properties

CW said that JP had addressed the issues of his letter several times. CW thinks that all of the issues of Thompson Road are the selectmen’s responsibility. State law is clear that the issues of Thompson Road are the selectmen’s responsibility. Even JP’s letter indicates that the issues of Thompson Road are the selectmen’s responsibility. CW will not decide these issues for the selectmen. No one can build on a class VI highway until the selectmen agree to allow such building.

CW disagreed with JP’s letter saying that RSA 231:62 and the driveway permit are both insurmountable bars to AHG’s subdivision approval. The NH Local Government Center had said that AHG can do as they propose. Thompson Road is the selectmen’s responsibility.

JP said that CW had been talking only about building on class VI highways. The issue of the letter was improvement and subsequent maintenance of Thompson Road, and CW cited no law addressing this issue. The planning board decided that off-site improvements were necessary. The planning board has the authority to decide whether the condominium covenant to implement those off-site highway improvements and maintenance is lawful. This issue is not for the selectmen to decide. Nothing in RSA 674:41 says anything about anyone maintaining a class VI highway.

BM said that he lives on and had built on a class VI highway. Any such person has to sign a “release” with the selectmen in order to get a building permit. BM read from a sample release “the [applicant] assumes responsibility for maintenance and repair of old Colony Road, a class VI road.” The board of selectmen has allowed residents on class VI highways to maintain them. The selectmen will not set a precedent with AHG.

PD cited RSA 236:9 as allowing excavation and maintenance.

JP read from RSA 236:9 and noted that none of the words “maintenance,” “construction,” or “repair” appears in this statute. RSA 231:62 specifically addresses “construction, maintenance, and repair.”

BM said that the highway agent could delegate his responsibilities to a private party.

JP disagreed and cited Ritzman v. Kashulines, 126 N.H. 286, 490 A.2d 792 (1985), and A Hard Road to Travel (2004 edition), page 132.

CW said that NH Local Government Center had said that RSA 236:9, :10, and :11 were part of a related group. CW sees nothing insurmountable or prejudicial.

JP said that the improvement-and-maintenance issue was prejudicial because the board would have a difficult time returning to the issue after the board had made the applicant do things that would be superfluous if RSA 231:62 or the driveway permit were a bar. JP apologized for using the word “prejudicial,” but JP said that objections are waived if they are not raised.

PH asked for a brief recess.

CW called a 5-minute recess at 8:44 PM.

CW resumed the meeting at 8:47 PM.

BM moved to cease discussion of JP’s letter of December 26, 2012.

GL seconded the motion.

Vote to cease discussion of JP’s letter of December 26, 2012: carried 4 – 1 – 0. (Voting “yes”: PH, GL, BM, and CW. Voting “no”: JP. Abstaining: none.)

AGENDA ITEM 6: Members’ Concerns

CW said that board members had expressed a number of concerns about the AHG project at the last meeting:
1. The conservation restriction: the phrase “as amended from time to time” should be removed.
2. Bonding: CW has a meeting scheduled with Matt Monahan on January 14, 2013, at 10:00 AM.
3. Developer’s Improvement Agreement: The Developer’s Improvement Agreement should include liability for the road.
4. State bonding: State bonding should not be deducted from town bonding.
5. Stone wall bounding Kathy Bleckmann’s land.

PH asked whether he should submit his questions about the stone wall to the board of selectmen via CW or via Larry Konopka, chair of the board of selectmen. PH wanted to know where does AHG think that she gets the authority to move the stone wall.

CW said that he would submit the question.

PH said that he had been researching much law. He could find nothing allowing AHG to move the stone wall. All that he could find was that the stone wall might be movable under eminent domain if the movement would benefit the public. Moving the stone wall will benefit only Stagecoach Station. PH wanted to know why AHG is moving the stone wall. PH said that AHG’s easement across Larry Stockman’s land should make moving the stone wall unnecessary.

PH cited RSA 674:36, III, (b), which allows the planning board to require a bond on the whole project. This statute says that the planning board can require bonding both on Thompson Road and within the boundary of Stagecoach Station. If the planning board fails to bond within the boundary of Stagecoach Station, then the project will be a mess.

BM said that he had talked to Darrel Ford of Louis Berger Associates and had asked Darrel Ford to estimate the costs to reconstruct Thompson Road and to build infrastructure inside the boundary of Stagecoach Station: roadwork, drainage work, other site work, water-supply system, and sewerage. Darrel Ford presented two estimates: (1) for the Thompson Road part of the project, including connecting to NH Route 107, $124,650, and (2) site work and construction inside the boundary of Stagecoach Station, not including underground utility work or the water-system alarm system, $1,061,600. BM said that he is trying to learn about bonding. BM thinks that this project may require four separate bonds. (1) one bond for the NH DOT for $50,000, (2) one bond to the town for $124,650 as a performance bond for the 400 feet of Thompson Road, (3) one bond for the construction inside the boundary of Stagecoach Station, and (4) one bond to secure the condominium fees for ten years if the condominium association does not have at least 3/4 membership. BM thinks that the condominium fees will be about $3000 per unit. If only one, two, or three units get built, and if AHG Properties leaves because of bankruptcy or other reason, then the few people left behind will have to pay $36,000 between them because the total condominium cost will not vary much with the number of people living in the development. These few people may be in trouble and may come to the town and ask the town to take responsibility for the infrastructure.

CW referred to the subdivision regulations saying that the planning board and the board of selectmen together decide the amount of the performance bond. (Subdivision regulations section 7, A, 2, (a).) Conferring with the selectmen on the bond is improper because state law (RSA 674:36 and :42) gives the planning board exclusive jurisdiction over the bond. But the planning board should keep the selectmen informed as a matter of courtesy. The Developer’s Improvement Agreement refers only to the planning board. CW said that bonding the condominium fees as a function of the association membership is reasonable. State law (RSA 674:36, III, (b)) allows developers to sell properties before they are finished. This possibility creates huge risk for the earlier buyers. The Developer’s Improvement Agreement should define how this bonding money is released as a function of association membership. The NH DOT driveway permit retains its required bond for three years after the project is completed. CW said that the numbers that BM had presented showed that Stagecoach Station presents great risk to the town.

CW said that he had talked to town highway agent George Bachelder about the Thompson Road project, and George Bachelder had estimated about $120,000. The internal cost estimate is enormous. The planning board should share this information with the board of selectmen. CW will send BM’s information from Darrel Ford to the selectmen.

CW said that he could find no law permitting AHG to move Kathy Bleckmann’s stone wall. Perhaps the planning board should ask AHG surveyor Jacques Belanger to explain the movement. CW will ask AHG to address and explain her basis to move the stone wall.

CW repeated that defining the bonding is very important.

PH emphasized that AHG must remove the phrase “as amended from time to time” in the conservation restriction.

PH offered to ask the NH Electric Co-op to estimate the cost of the underground utilities. PH said that the water-system alarm system will not cost much because it will use the telephone lines. PH will get cost-per-foot estimates, and the planning board will calculate the total cost from that estimate.

BM said that the board must ensure that the bonding runs with the land. BM asked for permission to speak to town attorney Laura Spector-Morgan on this issue.

CW said that the board should assemble the information first.

Building inspector Jesse Pacheco asked whether the project were phased.

BM said no. This project is structured so that the whole infrastructure for 12 houses must be built before the developer can sell one unit.

JP said that he was disappointed that he could not raise issues of prejudice without invoking anger. Procedural due process is a constitutional requirement.

JP said that he had raised RSA 231:62 and RSA 236:13, I, before, and no one tonight cited any law that created an exception to these two statutes.

CW apologized for being annoyed earlier in the meeting and said that he had inherited a very difficult and stressful project. The board must do its best to remove risk to the town. The board must try better to work together.

JP thanked CW. JP said that he brings to the board only things that he has researched very carefully. JP said that the abutters had suffered more than any of the board members had. Everyone is suffering, and everyone should assume that everyone is honest with one another.

PD asked whether he could have sat at the table for discussion of AHG.

CW said yes.

PD repeated that he thought that RSA 236:9 gave the selectmen authority to permit private maintenance of a class VI highway. PD acknowledged that RSA 236:9 says, “disturb the surface” and not “maintain.”

JP said that RSA 231:62 was specific whereas RSA 236:9 was only general, and there are reasons other than maintenance to disturb the surface of a highway, such as installing utilities.

PD said that he thought that RSA 236:9 intended to help people like BM, who lives on a class VI highway, to maintain the road and keep it open and passable.

CW said that he would distribute information from NH Local Government Center (“NH LGC”) stating why they think that the town has the right to permit maintenance of a class VI highway. NH LGC cited RSA 236:9, :10, and :11 collectively.

JP said that even if NH LGC were correct about the maintenance issue, there would still be a problem with the NH DOT driveway permit. The driveway permit says that the town must be responsible, and a state law (RSA 236:13, I) prohibits deviating from the conditions of the driveway permit.

CW said that the law governing the condominium covenant is the same law governing private maintenance on a class VI highway.

AGENDA ITEM 7: Public Input

Carol Lambert asked about the meeting on January 14, 2013.

CW said that this meeting would be between CW and Matt Monahan.

Carol Lambert said that the abutters were living with mistakes that past planning boards had made and would live with mistakes that this planning board would make, so Carol Lambert asked the board please to be careful. AHG commands very special respect in Pittsfield. AHG gets exceptions to land-use regulations, and she even gets exceptions to paying her taxes.

AGENDA ITEM 8: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of January 3, 2013: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of January 3, 2013, is adjourned at 8:40 P.M.

Minutes approved: January 24, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on January 7, 2013, from notes that I made during the planning board meeting on January 3, 2013, and from copies of the two Town tapes that Chairman Clayton Wood made on January 4, 2013.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.