July 10, 2013 Minutes

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

DATE: Wednesday, July 10, 2013

Tonight’s regular meeting of the planning board did not happen on the first Thursday of the month, as the board’s rules of procedure ordinarily require, because the first Thursday of this month, July 4, was a national holiday, Independence Day.

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:04 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;
Eric Nilsson (EN), 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; Gerard LeDuc, selectman; and Al Douglas, selectman.

Members of the public appearing before the planning board:
Darin Greenleaf, 26 Merrimack Street, Penacook, NH;
Carol Lambert, 83 Governor’s Road, Pittsfield, NH; and
Larry Stockman, 1078 Province Road (Route 107), Gilmanton, 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 the town attorney Barton Mayer had sent an e-mail to all planning board members except JP to tell them of CW’s decision not to have another nonpublic “consultation with legal counsel.” (RSA 91-A:2, I, (b).) Barton Mayer is trying to resolve the issues that the board raised in its letters of April 25 and May 6, 2013, to Andrew Sullivan, attorney for AHG Properties. CW is uncomfortable with efforts to resolve these issues outside a public meeting. The board voted on the letters and must now act on them.

CW said that Barton Mayer’s communication to the full planning board except JP was improper and that the selectmen’s discussion of this e-mail on July 2, 2013, was improper. (See the board of selectmen’s minutes of July 2, 2013.) CW said that he had not waived attorney-client privilege. CW said that he had consulted both vice-chair PH and Barton Mayer to help CW decide whether to have another nonpublic “consultation with legal counsel.” (RSA 91-A:2, I, (b).) CW said that he was concerned about Right-to-Know problems. What the board wants from AHG is clear.

BM said that Barton Mayer’s e-mail had disturbed BM. BM asked whether CW would establish rules for future situations with the town attorney.

CW said that he did not want to anticipate future situations now.

AGENDA ITEM 4: Approval of Minutes of the June 6, 2013 Meeting

PH moved to approve the minutes of June 6, 2013, as written in draft.

BM seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

Vote to approve the minutes of June 6, 2013, as written in draft: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

After the meeting, recording secretary JP noticed that, in agenda item 6, page 3, “PD sat in JP’s place.” should have been added after “JP recused himself because his mother is an abutter to the Stagecoach Station project.” JP corrected this error with the chair’s permission. JP also corrected “a copy of the two town tapes” to “copies of the two town tapes” at the end of the minutes document on page 17.

AGENDA ITEM 5: Request for Exemption from a Site Plan Review for a Change Of Use by Darin Greenleaf (Map R38 Lot 12)

CW asked Darin Greenleaf to explain his proposal.

Darin Greenleaf said that he has a three-bedroom house and that he wants to sell artworks and antiques out of the house. The business would employ Darin Greenleaf’s wife and his daughter.

CW asked for confirmation that the house would have no structural changes for the new use.

Darin Greenleaf said yes, the house will have no structural changes.

BM said that he has no business with Darin Greenleaf currently but that he has had a business relationship with Darin Greenleaf in the past. BM will not recuse himself from deciding the exemption request.

EN said that Darin Greenleaf had painted some items for EN’s vehicle.

CW said that he had visited the site. The site has ample parking, and CW saw no traffic-safety problems in accessing the driveway.

Darin Greenleaf said that the police chief had inspected the site and had seen no traffic-safety problems. The fire chief has also inspected the site.

CW advised Darin Greenleaf that the change of use might require Darin Greenleaf to seek renewal of his NH Department of Transportation (“NH DOT”) driveway permit on NH Route 28.

Building inspector Jesse Pacheco said that the town had notified the NH DOT of the hearing on Darin Greenleaf’s application for a special exception on June 13, 2013.

PH moved to approve the exemption from site plan review.

BM seconded the motion.

Discussion:

PH said that the board should approve the exemption.

Vote to approve the exemption from site plan review: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

CW explained the 30-day appeal period of RSA 677:15, I.

AGENDA ITEM 7: Selectman’s Report – Eric Nilsson, Selectman Ex Officio Review and Comment Regarding the Board of Selectmen Action on the Building on a Class VI Road per RSA 674:41, I(c)(1) for the Stagecoach Condominium Cluster Subdivision (Map R44, Lot 1)

CW said that he had intended to reverse the order of agenda item 7, selectman’s report on the decision under RSA 674:41, I, (c), (1), and agenda item 6, planning board action on letters to AHG.

EN read a prepared statement saying as follows:

· The Board of Selectmen has taken no action on the AHG plan because it [the board of selectmen] has been waiting for the Planning Board to complete its work.

· Regardless of how the [Planning] Board chooses to proceed, a final subdivision plan approval is required.

· The Board of Selectmen is aware of the fact that the Planning Board has met with Town counsel and made progress on some of the issues of concern to the Planning Board.

· The Board of Selectmen encourages the Planning Board to meet with the Town attorney as soon as possible to resolve the remaining issues.

· If the Board of Selectmen decides that it is in the best interests of the Town to proceed without the Planning Board, then it can and will do so at any time.

CW said that he had sent the board of selectmen an e-mail requesting an appointment. CW asked why the board of selectmen had not granted CW’s request.

EN did not know why the board of selectmen had not given CW an appointment. EN said that he will put CW on the agenda for the next selectmen’s meeting.

CW said that the planning board cannot proceed with a compliance hearing before the board of selectmen decides AHG’s request under RSA 674:41, I, (c), (1).

EN said that the board of selectmen’s approval under RSA 674:41, I, (c), (1), does not have to happen before the planning board gives its final approval.

CW explained the review process. The planning board’s review comes last because it is the most expensive part of the process. By contrast, presentations to the zoning board of adjustment (“ZBA”) can use hand sketches.

EN said that the planning board conditionally approved Stagecoach Station without the approval under RSA 674:41, I, (c), (1).

CW said that the board of selectmen’s vote (RSA 674:41, I, (c), (1)) and the liability waiver (RSA 674:41, I, (c), (3)) must both happen before the planning board can record the plat. CW has written the board of selectmen multiple letters but has received no answer.

BM said that AHG’s application presents a sequencing problem. The board of selectmen wants to see AHG’s final plan, but the plan that the board of selectmen has may not be final until the planning board gives final approval. BM said that the planning board should grant a final approval on condition that the board of selectmen approve the project under RSA 674:41, I, (c), (1).

JP said that the current situation as BM is discussing it is similar to the situation decided in Sklar Realty v. Merrimack and Agway, 125 N.H. 321, 480 A.2d 149 (1984). When a developer goes to the ZBA and then to the planning board, he must present plans that are substantially the same at both boards. The same principle applies to presentations to the board of selectmen. The board of selectmen does know what it is deciding; it is deciding what AHG has currently put before the planning board. By law, the board of selectmen must act before the planning board can give final approval. (Turco v. Barnstead, 136 N.H. 256, 615 A.2d 1237 (1992), and Sklar Realty v. Merrimack and Agway, 125 N.H. 321, 480 A.2d 149 (1984).)

CW emphasized that the board of selectmen has more information than other boards of selectmen usually have. The board of selectmen considers only the issues related to the road. These issues include safety and the right-of-way lines (Kathy Bleckmann’s stone wall).

BM said that the board of selectmen might approve the plan as it currently is but that the planning board might then change the plan. BM wondered whether the board of selectmen’s approval would still be valid. The board of selectmen should be asked for a decision under RSA 674:41, I, (c), (1), only when AHG’s plan is final and unchanging.

JP reminded the planning board that the Stagecoach Station application does not belong to the planning board or even to the board of selectmen. AHG has written a letter to the board of selectmen requesting approval under RSA 674:41, I, (c), (1). (Letter of Andrew Sullivan of February 28, 2013, to the board of selectmen.) AHG, not the planning board, gets to decide what AHG presents to the board of selectmen. AHG has a right to a decision, and, by law, the board of selectmen cannot defer the decision indefinitely. (DHB v. Pembroke, 152 N.H. 314, 876 A.2d 206 (2005).)

EN objected that JP’s discussion of the review process for RSA 674:41, I, (c), (1), is out of order because it relates to the AHG case and because JP is disqualified from that case.

CW cited RSA 673:14 and said that the board is discussing process only and that the discussion of process is not judicial in nature.

JP said that he is participating because the board is not discussing the merits of AHG’s application. The board is discussing process only. Former town attorney Laura-Spector Morgan wrote an e-mail on this specific issue of disqualification in relation to a decision under RSA 674:41, I, (c), (1). (E-mail of Laura Spector-Morgan of November 2, 2012, to town administrator Paul Skowron.) Laura Spector-Morgan said that disqualification does not apply to a decision under RSA 674:41, I, (c), (1), because such a decision is not judicial. JP said that he has been careful not to discuss the merits of AHG’s application. JP is trying to help the board with process, but JP will step down if the board thinks that his participation does not help.

No board member asked JP to step down.

JP resumed his discussion of BM’s concern. In Sklar Realty, a developer got a special exception from the ZBA and then went to the planning board, which required substantive changes. Sklar Realty held that the substantive changes killed the special exception. If the board of selectmen were to approve AHG’s plan on condition of no substantive changes, then any substantive change to the plan would kill the board of selectmen’s approval.

BM repeated his proposal that the planning board give Stagecoach Station final approval on condition that the board of selectmen approve Stagecoach Station under RSA 674:41, I, (c), (1).

JP quoted Sklar Realty: “For a valid, final approval …, there are no unfulfilled conditions precedent.” JP said that BM is suggesting that the planning board impose a condition precedent to be fulfilled after final approval. Such a condition precedent is unlawful and logically impossible.

EN said that the planning board could have resolved this process matter easily by scheduling a session with the town attorney.

CW said that he preferred to discuss the matter in public.

PH referred to BM’s comment that AHG’s plan is not final. Even if the board of selectmen approves Stagecoach Station under RSA 674:41, I, (c), (1), the planning board’s objections in the planning board’s three letters will remain unresolved. (Planning board’s letters of April 25 and May 2, 2013, to AHG attorney Andrew Sullivan.)

CW said that it makes no sense that the “owner” (trustee) of the “road” (right-of-way) has the last say on what happens to it. AHG is proposing to move an abutter’s stone wall. The town must be clear on where the authority to move the stone wall originates.

PH said that he intended to attend the selectmen’s meeting where CW will speak. Would the attendance of three or more planning board members at that meeting violate the Right-to-Know law? Or would the gathering be a chance gathering?

CW said that the gathering would not violate the Right-to-Know law because such a gathering would be a chance gathering. CW said that he is not encouraging board members to attend; whether board members happen to attend is their own decision.

AGENDA ITEM 6: Board Action on Letters to AHG Regarding Changes Required Prior to for Compliance Hearing for the Conditional Approval for the Stagecoach Condominium Cluster Subdivision (Map R44, Lot 1)

JP said that this agenda item appears to be one in which the board might discuss the merits of AHG’s application. JP recused himself because his mother is an abutter to the Stagecoach Station project.

PD sat in JP’s place.

CW said that the board had sent AHG three letters on four issues:
(1) removing “as amended from time to time” from the conservation restriction,
(2) stating the locations and dimensions of the unit footprints,
(3) removing from the Stagecoach Station plat the plan to relocate the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field, and
(4) bonding Stagecoach Station for completion.
(Planning board’s letters of April 25 and May 2, 2013, to AHG attorney Andrew Sullivan.) The board has taken positions critical to the board’s decision making. AHG’s replies on two of the four issues ((1) “as amended from time to time” in the conservation restriction and (2) the locations and dimensions of the unit footprints) were what the board had already rejected. AHG did not reply on the issues of the bonds and the stone wall movement. CW said that AHG will not comply with the board’s four requests.

EN disagreed with CW. During an attorney-client session with town attorney Barton Mayer, the board of selectmen asked Barton Mayer to “do some things for [the board of selectmen] to see where he could get with AHG.” Barton Mayer has had at least some partial success, but the planning board has refused to have a session with Barton Mayer.

BM said that AHG can talk directly to the planning board.

CW said that he will not waive attorney-client privilege but that the planning board does not need a lawyer to talk to an applicant. The board wrote to AHG, and the board did so publicly. AHG has not replied.

CW said that the board has two options: (1) rescind its votes on its letters or (2) revoke the April 19, 2007, conditional approval. Rescinding the board’s votes on its letters is problematic because, by voting on the letters, the board has prejudiced itself in respect to the compliance decision. Therefore, the board must resolve the four issues before the compliance hearing happens.

CW said that no statutory law on revoking conditional approval exists but that case law on revoking conditional approval does exist. In addition, the NH Local Government Center said that revoking conditional approval is an option.

CW said that the board must send AHG another letter because the town attorney’s involvement has caused confusion.

CW said that the case law is interesting. (CW later cited Thomas v. Town of Hooksett, 153 N.H. 717, 903 A.2d 963 (2006), and Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006), as the case laws to which he was referring.) Matters of law do not disappear just because the conditional-approval decision did not state them. The subdivision regulations are clear on bonding and “permanent protection” of the conservation area. (Subdivision regulations section 7, A, 2, and subdivision regulations section 5, K, 4.) One case (Simpson Development v. City of Lebanon) says that a planning board can revoke an erroneous conditional approval if conditions precedent are still unfulfilled.

CW said that he had reviewed the process to revoke a recorded approval. (RSA 676:4-a.) CW proposes to use a similar process. CW said that the board can revoke a recorded approval (which AHG’s conditional approval is not) without a hearing or notice but must notify the developer later and must have a hearing if the developer asks for a hearing. (RSA 676:4-a, II.) Notwithstanding RSA 676:4-a, II, CW proposes to notify AHG and the abutters of the potential to revoke AHG’s unrecorded conditional approval.

BM said that the board can revoke only something that has been approved, and BM said that board had not approved AHG’s application yet. BM said that the board might consider declaring the application abandoned as an alternative to revocation. BM said that AHG’s application is still in process, that the board has asked AHG for certain things, and that AHG has not cooperated. BM suggested writing AHG that the board will consider voting that AHG’s application is abandoned if AHG does not reply constructively to the board’s four requests. BM said that the purpose of the abandonment regulation of the subdivision regulations is to keep the application moving toward final approval. BM thought that AHG’s uncooperativeness might be a reason to declare the application abandoned because AHG is no longer moving toward final approval.

CW said that the board had already voted on abandonment and that case law does allow for revoking a conditional approval. If the board reverses itself on abandonment, then the board will have no jurisdiction to discuss the merits of AHG’s application. In any event, the board cannot threaten abandonment as leverage to force AHG to comply with the board’s four requests.

PD said that what has happened between June 2012 (June 21, 2012) and now has no bearing on the abandonment question decided in June 2012. Any abandonment decision on matters between June 2012 and now would have to happen one year from now.

CW cited DHB v. Pembroke, 152 N.H. 314, 876 A.2d 206 (2005). The board cannot defer a final-approval decision indefinitely to force AHG to comply with the board’s four requests. CW emphasized that the board’s three letters (April 25 and May 6, 2013) state how the board would vote in a compliance hearing.

BM asked how much time the board would give AHG to say why the board should not revoke the conditional approval.

CW distributed to the board a draft letter explaining the board’s position on revocation and stating a schedule for the revocation proceeding. The letter in part says as follows:

“The board finds AHG Properties’ refusal to comply with the board’s four requests to be a reason to consider revoking the conditional approval that the board gave on April 19, 2007. The board will decide this matter on August 1, 2013.

“The board will consider any written comments that you or any other member of the public submits to the board by July 24, 2013. July 24, 2013, means the date when the board receives the written comments. Before the board deliberates and decides whether to revoke the conditional approval, the board will allow you 10 minutes to address the board to explain your written comments.”

BM asked whether there were any legal requirement on the timing of the notice.

CW said no. The board could revoke the conditional approval tonight and then notify AHG.

EN said that CW should talk to town attorney Barton Mayer on Barton Mayer’s progress with AHG. The board should not send CW’s letter if Barton Mayer has made progress with AHG.

CW said that he had talked to Barton Mayer but will not waive attorney-client privilege. CW said that the board has been very clear with AHG.

BM said that EN is saying that AHG thinks that she is negotiating with the town attorney when the planning board thinks that AHG should speak directly to the planning board.

CW said that his proposed letter to AHG is to eliminate just such confusion.

PH and BM said that the planning board would have heard if the town attorney had resolved the matters.

EN said that Barton Mayer wanted to report the progress himself but that the planning board refused him a session.

CW said that Barton Mayer could have made an appointment for tonight’s open meeting. The planning board will not act behind closed doors.

CW said that he will not waive attorney-client privilege. The town attorney violated attorney-client privilege by disclosing to the board of selectmen the attorney’s discussions with the planning board.

BM said that AHG can write directly to the planning board if the town attorney has indeed resolved the planning board’s concerns.

CW said that the board must give AHG the opportunity to say whether she will or will not comply with the board’s requests.

CW said that the central question before the board is what does the law require. For example, AHG may think that the board’s failure to specify bonding in the notice of decision constitutes a waiver. But one of the two case laws says that the law applies even if the town misinforms the applicant. (Thomas v. Town of Hooksett, 153 N.H. 717, 903 A.2d 963 (2006).) The second case law says that a conditional approval is not final and is revocable if the board made an error of law in the conditional approval. (Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006).) The board has been pressing its four objections for months.

CW distributed to the board a draft notice of a meeting to consider revocation. The notice cites the two case laws to which CW has been referring: Thomas v. Town of Hooksett, 153 N.H. 717, 903 A.2d 963 (2006), and Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006). The notice states the board’s reasons for considering revocation:
(1) AHG refuses to bond Stagecoach Station for completion (RSA 674:36, III, (b), and subdivision regulations section 7, A, 2);
(2) AHG refuses to remove “as amended from time to time” from the conservation restriction (subdivision regulations section 5, K, 4);
(3) AHG refuses to state the locations and dimensions of the unit footprints (RSA 356-B:7);
(4) AHG refuses to redesign the plan so as not to move the stone wall bounding Thompson Road along the edge of Kathy Bleckmann’s field (Hoban v. Bucklin, 88 N.H. 73, 80, 184 A. 362, 366 (1936)); and
(5) AHG’s lack of permission to move the stone wall violates condition 5 of the NH DOT driveway permit required by the April 19, 2007, conditional approval.

CW said that he had decided not to let abutters speak during the revocation proceedings because he wants to focus on whether AHG will comply with the board’s four requests.

BM said that AHG will have to renegotiate the NH DOT driveway permit because AHG will not be able to move Kathy Bleckmann’s stone wall as the plan now shows.

BM referred to the board’s request that AHG pay for third-party inspection. BM said that this matter is a separate matter to which AHG has not agreed. BM does not want the board’s statement of reasons to release AHG from this requirement.

CW said that, if AHG refuses to pay for third-party inspection, then the board will decide this issue at the compliance hearing. In respect to the revocation proceeding, the board must focus in order to be productive.

PD asked whether the board were ready to represent itself if AHG sues the board. The board’s representing itself appeared to be where this case is going.

CW said that things will not come to the board’s representing itself.

BM asked whether the board’s letter would obligate the board to vote on revocation on August 1, 2013.

PD was concerned that the July 24 and August 1, 2013, dates might not give AHG enough time to prepare.

CW agreed to change (1) July 24 to August 9 in all places, (2) August 1 to August 15 in all places, and (3) “The board will decide this matter on August 1, 2013.” to “The board will consider this matter on August 15, 2013.”

BM asked to clarify that AHG’s 10-minute address would be at the board’s August 15, 2013, meeting. CW agreed to change

“the board will allow you 10 minutes to address the board to explain your written comments.”

to

“the board will allow you 10 minutes at the August 15 meeting to address the board to explain your written comments.”

PH moved the board to send AHG CW’s draft letter as changed telling AHG that the board will consider revoking the board’s April 19, 2007, conditional approval.

BM seconded the motion.

Discussion: No further discussion.

Vote that the board will send AHG CW’s draft letter as changed telling AHG that the board will consider revoking the board’s April 19, 2007, conditional approval: carried 4 – 1 – 0. (Voting “yes”: PD, PH, BM, and CW. Voting “no”: EN. Abstaining: none.)

EN moved the board to approve CW’s notice of (1) a meeting on August 15, 2013, to consider revoking the April 19, 2007, conditional approval, (2) the board’s reasons for considering the revocation, and (3) a date of August 9, 2013, before which any concerned person may submit comments in writing.

BM seconded the motion.

Discussion: No further discussion.

Vote that the board will give notice of (1) a meeting on August 15, 2013, to consider revoking the April 19, 2007, conditional approval, (2) the board’s reasons for considering the revocation, and (3) a date of August 9, 2013, before which any concerned person may submit comments in writing: carried 5 – 0 – 0. (Voting “yes”: PD, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 8: Members’ Concerns

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

BM said that the board has an outstanding bill of $3550 from Louis Berger Group for construction-cost estimates for Stagecoach Station. AHG’s escrow account does not have enough money to pay this bill. BM wanted to know whether the board should make a partial payment.

CW said that he will ask AHG for $2000 more and will ask selectmen’s administrative assistant Cara Marston whether to make a partial payment.

BM asked for an explanation of the notice of public hearing from Concord.

JP said that Concord is notifying Pittsfield of a development of potential regional impact. The project is a telecommunications tower. JP moved that the Concord telecommunications project is not regional impact to Pittsfield.

EN seconded the motion.

Vote that the Concord telecommunications project is not regional impact to Pittsfield: carried 4 – 0 – 1. (Voting “yes”: JP, EN, PH, and CW. Voting “no”: none. Abstaining: BM.)

BM abstained because he has an ownership conflict with one of the telecommunications towers.

AGENDA ITEM 9: Public Input

Carol Lambert said that the board members are the elected officials and should not surrender their authority to the unelected town attorney or be intimidated by the town attorney. The board has been thorough, has acted in good faith, and has given AHG plenty of time. Carol Lambert commended the board for retaining its authority.

Carol Lambert said that LK had defended signing the NH DOT driveway permit because the board of selectmen in 2012 had told LK that the process of RSA 674:41, I, (c), (1) and (3), had been done. The board of selectmen’s conduct worries Carol Lambert.

Larry Stockman said that the planning board was going to ask the highway agent George Bachelder to look at the Thompson Road project. Has George Bachelder looked at it?

EN said that he did not know.

Larry Stockman asked where the idea to move the stone wall had originated.

BM said that the planning board has said that AHG cannot move the stone wall.

CW said that the stone wall movement was shown on the 2007 plat but that the planning board did not discover the error until 2012.

Larry Stockman said that George Bachelder should control the road-widening project. The board of selectmen should not have applied for the NH DOT driveway permit on AHG’s behalf.

BM said that eliminating the stone wall movement may require a redesigned plan and a new NH DOT permit. BM thought that AHG does not need to move the stone wall.

Larry Stockman said that the town administrator Paul Skowron had said that AHG had not given the town the 15-foot easement that Larry Stockman sold to AHG, but AHG says otherwise.

CW explained that the right-of-way lines are a matter of concern to the board of selectmen for its decision under RSA 674:41, I, (c), (1).

JP, speaking from the audience, referred to the notice time that the planning board is giving AHG. JP said that RSA 676:7 requires a five-day notice for ZBA hearings and that RSA 676:4 requires a 10-day notice for planning board hearings. (RSA 676:7, I, (a) and (b), and RSA 676:4, I, (d), (1).) The planning board is being very generous to AHG.

JP said that former town attorney Laura Spector-Morgan had warned AHG almost one year ago of the same case law that CW now cites for revocation. JP read from Laura Spector-Morgan’s e-mail of August 14, 2012:

“Normally, I would have no problem with proposed language that allows the planning board to approve an amendment; however, in this case, where the area is designated open space, both RSA 674:21[-a] and the case of Simpson Dev. Corp. v. Lebanon, 153 NH 506 (2006) make it clear that the planning board has no authority to permit such an amendment…”

JP said that AHG has been stonewalling since August 13, 2012, despite Laura Spector-Morgan’s warning, by citing Simpson Development, that the planning board can correct errors of law by revoking conditional approval when conditions precedent remain unfulfilled.

JP referred to the discussion of town attorney Barton Mayer’s trying to resolve the planning board’s four requests. JP said that the Right-to-Know law prohibits the town from making decisions or considering the merits of AHG’s application outside a public meeting.

BM said that the planning board had agreed not to delegate the board’s own responsibilities to the town attorney.

JP commended the board for this action.

AGENDA ITEM 10: Adjournment

PH moved to adjourn the meeting.

BM seconded the motion.

Vote to adjourn the planning board meeting of July 10, 2013: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of July 10, 2013, is adjourned at 9:02 P.M.

Minutes approved: August 1, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on July 13, 2013, from notes that I made during the planning board meeting on July 10, 2013, and from copies of the two town tapes that Chairman Clayton Wood made on June 11, 2013.

____________________________________________
Jim Pritchard, planning board recorder and secretary

two town tapes