July 5, 2012 Minutes

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

DATE: Thursday, July 5, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:02 P.M.

AGENDA ITEM 2: Roll Call

Members present: Jim Pritchard (JP, secretary), Pat Heffernan (PH, vice-chair), Gerard Leduc (GL, selectmen’s ex officio member), Bill Miskoe (BM, associate member), Clayton Wood (CW, chair), and Peter Dow (PD, alternate).

Members absent: Larry Konopka (LK, selectmen’s ex officio alternate).

Other town officials present: None.

Members of the public appearing before the planning board: Carol Lambert, Anton Pritchard, Jim Pritchard, Mary Pritchard, and Dana Sargent.

AGENDA ITEM 3: Agenda Review

CW said that he had nothing to add to the agenda except the abutters’ letter asking the board to reconsider its decision on June 21, 2012, that the AHG subdivision application was not abandoned.

AGENDA ITEM 4: Approval of Minutes of June 21, 2012

BM moved to approve the minutes as written in draft.

PH seconded the motion.

Discussion:

CW said that, in Agenda Item 5, page 7, he had said that the board had 90 days to decide whether to give final approval to the plat that AHG submitted on May 11, 2012. CW said that this statement appears to have been a mistake. CW was not asking that the minutes be changed; he is just alerting the board to a mistake that he made.

JP said that, in Agenda Item 2, page 1, the reference to Carole Dodge as vice-chair of the zoning board of adjustment was a mistake. Carole Dodge is now the chair of the zoning board of adjustment.

Vote to approve the minutes of June 21, 2012, with the change that JP requested: carried 4 – 0 – 1. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: none. Abstaining: GL.)

AGENDA ITEM 5: Review/Discussion Final Plat Approval of Cluster Subdivision/Site Plan for AHG Properties, Inc., Stagecoach Condominiums, Tax Map R44, Lot 1

JP recused himself because his mother is an abutter.

CW asked PD to sit in JP’s place.

CW confirmed that the consensus of the board was that JP should continue as the recording secretary during the discussion of the AHG project.

BM said that, in general, he opposes JP’s serving as the board’s recording secretary, but BM admitted that BM has no specific objection to JP’s doing the recording during the discussion of the AHG project.

No other board member objected to JP’s doing the recording during the discussion of the AHG project.

CW said that the board had received a request from the abutters asking the board to reconsider its decision on June 21, 2012, that the AHG subdivision application was not abandoned. Four abutters—Carol Lambert, Mary Pritchard, Royce Sargent, and Dana Sargent—signed the letter, and all except Royce Sargent are present. CW will give the abutters an opportunity to comment after the board considers the request for reconsideration.

CW said that he is concerned about how quickly the AHG review is moving. CW said that he uses The Planning Board in New Hampshire – A Handbook for Local Officials (“PB Handbook”) for guidance. The PB Handbook, page IV-22, says that the planning board can reconsider its decisions within the 30 days for an appeal to superior court. Neither the subdivision regulations nor the rules of procedure have guidelines for a request to reconsider. CW found case law governing the board’s authority to reconsider its decisions, and CW will treat the request according to that case law. The decision affected the abutters, and they have provided new information.

CW asked for a motion and a second to consider the request. Voting “yes” will vacate the board’s decision on June 21 and will nullify the superior court appeal date.

BM moved not to reconsider the board’s decision on June 21 that AHG’s subdivision application is not abandoned.

CW asked what is the reason to deny the abutters’ request.

BM said that his reason was because the board had already decided that AHG’s subdivision is not abandoned.

GL seconded the motion.

Discussion:

BM said that, at the last meeting, the board spent time with the town attorney. She said that the abandonment regulation only applies to applications in process. Nothing in the subdivision regulations or rules of procedure allows abandonment of a conditionally approved application. The town attorney said that she would not want to defend a decision that the application was abandoned. There were many conditions in 2007. Those conditions would normally be on the final plat for recording. AHG has submitted a final plat with approvals for all of those conditions. Until those conditions are met, the town cannot issue certificates of occupancy. The state supreme court ruled that the approval was final. Nothing in the subdivision regulations says that the approval is subject to abandonment. The applicant accepted the conditions. In the time between October 28, 2009, and May 11, 2012, the applicants did not abandon their application. The applicants continued getting permits for the community septic system, the community well, the site-specific permit to disturb earth, and the NH Department of Transportation driveway permit. The applicant spent much time and money and did not abandon the application. If the board tells the applicant that the application is abandoned, then the applicant will go to court. The town attorney says that the applicant would prevail. BM does not want such a lawsuit. The application is not abandoned. The board should sign the plat and record it.

PD asked for clarification of the 2 and 1/2 years mentioned in the abutters’ letter. Is that 2 and 1/2 years the time period since the lawsuit was resolved?

BM said that the lawsuit was decided on October 28, 2009. The planning board conditionally approved the application on April 19, 2007. The appeal process went to the zoning board of adjustment, then to the superior court, then to the supreme court, which decided the case on October 28, 2009. The applicant submitted the plan for endorsement and recording on May 11, 2012.

CW said that the submission for endorsement and recording had been 5 years since April 19, 2007, but 2 and 1/2 years since the supreme court decision of October 28, 2009.

PD asked whether the board had some sense of what the applicant was doing during that 2 and 1/2 years?

BM said no, but that is not the board’s business.

CW referred to the abutters’ letter, page 1, item 3. It explains how an open, completed application can exist for 12 months. A conditionally approved application is the only thing to which the abandonment regulation can apply. The PB Handbook, page IV-18, describes conditional approval. The planning board’s decision on the AHG application has several conditions precedent, which must be fulfilled before the board can give final approval. During the consultation with legal counsel, CW said that the sign-off is the board’s final action on the application, and the town attorney disagreed, but the PB Handbook agrees with CW. The PB Handbook says, “Conditions precedent are conditions that must be fulfilled before the planning board may give final approval to an application.” The AHG application does not have final approval. A conditional approval allows the board to meet the 65-day deadline of RSA 676:4, I, (c), (1), while keeping the application still open. A 90-day extension beyond the 65 days is also possible. (RSA 676:4, I, (f)) A conditional approval is the only way that a completed application can remain open for 12 months without being approved. The request for reconsideration has merit. The PB Handbook, pages IV-18 and IV-19, explains conditional approval very well.

PD said that the town attorney had said that there are ways that the applicant can drag his feet beyond the 65 days. How does the applicant do that?

CW said that, when CW asked the town attorney how an applicant could cause that delay, the town attorney did not answer. The board does not know the reason for the delay in this application. The board has bits and pieces of information. The applicant has the right to address the decision. That is what the board was doing on June 7, 2012. The board cannot move the application forward. The applicant could take 5 years or more. The application is untraceable. CW has been digging for 1 and 1/2 months and has not found all of the relevant information. The board cannot reasonably expect the public to conduct such research. Is the board overlooking a valid provision of the subdivision regulations? The abutters’ letter made CW go back and look at conditional approval. The board must decide this.

PD asked for clarification that, if the board reconsiders its June 21 decision on abandonment, then the board will have more time to decide whether the application is or is not abandoned.

CW said yes. The June 21 decision will simply be vacated, and the question of abandonment will not be decided yet.

PD asked for clarification of the 30 days.

CW said that the board can correct its own errors within the 30-day period of appeal to the superior court. If the board does not reconsider its June 21 decision, then that decision will stand.

PD asked whether there were any danger in voting to reconsider.

GL said that voting to reconsider would cost the town money because the applicant has met everything that the planning board required in 2007. “Legal action at this time could break this town.”

PD asked whether that were true even if the board ultimately found against abandonment?

GL said yes, because the applicant would go to court.

BM said that there would be a tort action against the town for loss of economic opportunity. The town should not add to the applicant’s delay.

PD said that voting to reconsider is not the same as voting that the application is abandoned.

BM said that the vote would be a delay.

PD said that the board’s 2-week delay would not be much compared with the applicant’s 2 and 1/2 years delay.

BM said that a lawsuit would still be likely because there is no ground to reconsider.

CW said that the board must interpret and apply its own regulations as written. CW asked the town attorney how an applicant can delay approval? The attorney had no answer. Now the board has the answer: conditional approval. This application does not have final approval. The threat of a lawsuit is not relevant, and presuming such a threat is not a valid way to run the board. Is the board overlooking a valid regulation designed to protect the town? How does the board force people to move forward? Everyone asked that. The board must interpret and apply the subdivision regulations or get rid of them. The board’s decision of June 21 is worth reconsidering.

BM referred to the planning board’s notice of decision of April 19, 2007. The notice specifies no date to fulfill the conditions.

CW answered that the omission means nothing. Nothing in the subdivision regulations can be waived without written approval. There are still things missing. The discussion of the reconsideration is with protocols and procedures. Do all 55 pages of the subdivision regulations have to be on the plat? That makes no sense.

BM said that the subdivision regulations do not set a time limit to record an approved application.

CW said that the AHG application is not approved now. The application will not be approved until the board finds that the applicant has fulfilled all of the conditions.

BM said that the conditions are what must be met before the building inspector can issue certificates of occupancy. Because the applicant now has approvals for all of the conditions, the building inspector can now issue certificates of occupancy. The only reason for abandonment is to keep the application moving through the approval process. The application is approved. The applicant can take as long as he wants to record it, because nothing in the subdivision regulations says otherwise.

CW disagreed with BM; there is something in the subdivision regulations that says otherwise. CW said that BM was essentially saying that CW’s concerns are valid.

BM said that the board needs to address CW’s concern by fixing the subdivision regulations, but the board cannot apply such a fix to this applicant.

CW repeated that the application is not approved, and the more CW read about conditional approval, the clearer it became that that this application is not approved.

BM said that the town attorney had said that an abandonment decision would not be legally defendable.

PD asked weren’t certificates of occupancy issued after construction?

BM said yes, after an individual structure has been built.

PD asked whether the applicant can break ground upon having received conditional approval but before the board has voted that the conditions are fulfilled.

CW said no. The applicant can do no construction until the plat is recorded.

CW invited the abutters to speak.

Dana Sargent said that this case was in court, and it was delayed, but, after the court decided the matter, didn’t the applicant have to let the town know what she was doing? Could the applicant go 50 years? The land-use laws change. Can the applicant drag her feet forever to avoid compliance?

BM said yes.

Dana Sargent asked didn’t the applicant have to ask for an extension?

CW said that there are two grandfathering statutes. One statute (RSA 676:12, VI) protects the application before it is approved. The other statute (RSA 674:39) protects the project after it is approved. If the board determines that the application is not abandoned, then the board has no control during that first time period, before the application is approved. Once the application is recorded, the second statute grandfathers the project for 5 more years.

Dana Sargent said that there are many questions. That is a reason to reconsider. Even the board members cannot agree among themselves. That, by itself, is a good enough reason to reconsider.

Anton Pritchard said that he wanted to emphasize the importance of recording at the registry of deeds. There is a requirement to record. If the application is not recorded, then it disappears into the town hall and is untraceable. The application could sit 50 years untraceable. Even if no regulations changed during that time, someone could propose an abutting development without knowing about the first development. This abandonment regulation is not an unimportant technicality. The people writing the subdivision regulations knew what they were doing with this abandonment regulation.

Carol Lambert said that she has been living with this matter for years. Carol Lambert agrees with Dana Sargent in terms of how this matter can be prolonged. Carol Lambert used to come to planning board meetings regularly in the late 1990’s, and she saw developers threatening lawsuits and board members cowing and making decisions for personal reasons instead of the rule of law. Carol Lambert stopped coming because of this conduct. The differences in opinions on the board furnish enough reason to reconsider the June 21 decision.

BM said that he agreed with Anton Pritchard. An untraceable application does make research difficult. But that difficulty is a shortcoming in the subdivision regulations as written. The board cannot address this problem in this application.

Vote not to reconsider the board’s decision on June 21 that AHG’s subdivision application is not abandoned: carried 3 – 2 – 0. (Voting “yes”: PH, GL, and BM. Voting “no”: PD and CW. Abstaining: none.)

BM told the abutters that the board will ensure that the plat is the same as the plat that the board approved in 2007.

CW called a recess from 7:56 PM to 8:02 PM.

CW said that there are two places where the town imposed conditions: (1) the special exception decision from the zoning board of adjustment, and (2) the subdivision conditional approval from the planning board. CW found two of the four permits. CW found the NH Department of Transportation driveway permit (permit number 06-371-191) and the Department of Environmental Services Alteration of Terrain permit. CW could not find the state septic system approval or state subdivision approval. The applicant must provide these other two approvals.

CW said that he is concerned about bonds and covenants that the zoning board of adjustment required. Cara Marston, the administrative assistant to the selectmen, said that there are no bonds. The subdivision regulations say that bonds have to be posted before the board gives final approval. The developer cannot work on Thompson Road unbonded. CW discussed the driveway permit. CW cannot find the bond that the driveway permit requires. CW referred to the subdivision regulations’ requirement for a bond. The bonding, except the bond required by the DOT driveway permit, is under the planning board’s control.

BM said that the fastest way to do these things is to get the town attorney to draft an agreement.

CW said that a bond document already exists. The subdivision regulations say that the planning board and the board of selectmen are supposed to work together on the bond. Did the board of selectmen give the applicant permission to build on a class VI highway? Has the applicant recorded a waiver of maintenance liability? CW cannot find this permission or waiver.

BM said that “the approval that the planning board granted, based on the proposed improvements, is what they need and what they have.” “This approval that was granted in 2007 included this road improvement, and, at that point, it’s no longer a class VI road.”

CW asked where is that written. Thompson Road will remain class VI. The applicant must have permission from the selectmen to build, and the applicant must record a waiver of maintenance liability. Nothing in the application suggests that Thompson Road will become a class V highway.

CW and BM discussed class VI highway matters. CW emphasized that Thompson Road is a town highway, not a private road. CW can find no permission from the board of selectmen to build on the class VI highway. AHG must get this permission; getting that permission is a state requirement (RSA 674:41, I, (c), (1)).

BM said that the town highway agent, George Bachelder, has no authority to oversee the work on Thompson Road because AHG will be responsible for doing all of that work.

CW disagreed. Thompson Road is a town highway.

CW referred to the subdivision regulations Section 5, K, 4 (page 21), relating to protection of open space in a cluster subdivision. CW cannot find any condominium covenants.

CW said that building inspector Jesse Pacheco had said that there is no description of electrical utilities.

PH said that 4 or more buildings require underground utilities.

BM referred to the subdivision regulations Section 10, L (page 42): “Any plot plan or subdivision plan must include underground or aerial service systems.” BM said that the regulations are “ambivalent.” BM discussed that electrical utilities are not shown on the plat. BM would like to see the book and page number of the easement to widen Thompson Road onto the Stockman land abutting Route 107. BM discussed moving the stonewall fence. BM said that the board could use Louis Berger for technical assistance in engineering.

CW said that there is $1000 in escrow.

BM said that the board will need more than $1000.

CW said that the board could have made the applicant bond everything. The board did not do that, but the board does require a bond for the road work.

BM asked how much does the board have the right to review? The state attorney general may control the condominium covenants.

Following is the list of matters that the board determined may make this application potentially still not in fulfillment of its conditions precedent:

1. State subdivision approval.
2. State septic system approval.
3. Permits for community water supply.
4. Specification of utilities as underground or aerial.
5. Condominium covenants.
6. Permission from the selectmen to build on a class VI highway (RSA 674:41, I, (c), (1)).
7. Recorded waiver of maintenance liability on a class VI highway (RSA 674:41, I, (c), (3)).
8. Bond for improvement of Thompson Road. (CW, GL, and George Bachelder will meet Tuesday afternoon, July 10, 2012, at 2:00 PM.)
9. Bond for the NH Department of Transportation Driveway permit.

In addition, the board wants to contact Louis Berger Associates to ask how much money Louis Berger will require for engineering oversight. Does $1000 make sense?

AGENDA ITEM 6: Review/Discussion Rules of Procedure
a. Section V: General Provisions for Meetings
b. Section VI: Public or Board-Member Participation In Meetings

JP returned to the board, and PD left.

CW referred to a new draft of the rules of procedure, Sections V and VI, which have a watermark saying “DRAFT June 5, 2012.” These two new sections are an expansion of the May 6, 2012, version Section V and present changes that CW proposed. The substantive changes are as follows:

Rule V, 1, changes “another time” to “a later time.”
Rule V, 2, changes “reschedules” to “postpones.”
Rule V, 6, states the board’s decision on May 17, 2012, to use the Local Government Center’s Minutes 101 for guidance in preparing the board’s minutes.
Rule V, 10, defines a majority vote to adopt a motion but allows the chair to veto a motion to have a public-input period.
Rule VI, 1, states the purpose of rules governing public or board-member participation in meetings.
Rule VI, 4, states the requirement that a person must be recognized by the chair before speaking and the chair’s duty under state law to maintain order.
Rule VI, 5, states the requirement that a person must raise his hand to be recognized.
Rule VI, 6, states the requirement that members of the public addressing the board should do so from a podium or table.

The board discussed Rule V, 10, at length.

BM said that Rule V, 10, would make the board look bad. The chair should not be able to exclude a public-input period if a majority of the board wanted a public-input period.

CW and JP said that Rule V, 10, is necessary because of the combined requirements that (1) the chair has a duty under state law to maintain order and (2) the chair has a duty under the First Amendment to let everyone speak on any matter if a public-input period is on the agenda. The public thinks that they have rights to speak that, in fact, they do not have under state or federal law. Past chair Ted Mitchell was severely criticized for saying that public input at a planning board meeting is a privilege, but Ted Mitchell was, in fact, correct. To correct the public’s mistaken perception, the board needs a clear, explicit policy statement that says what conduct is expected and required of the public. This approach works for the school board even though issues there can be just as contentious as at the planning board. New Section VI was split off not only because of the unity of its subject matter but also to create a policy statement patterned after the school board policy statement on public participation in board meetings. Section VI could be put out for the public to take and read at meetings.

JP distributed a new draft of the rules of procedure, pages 27, 29, 30, and 31, with a watermark saying “DRAFT June 5, 2012,” the same watermark on the draft that CW was proposing. JP said that these pages show four changes that he was proposing:

Rule XIII, 19, requires the board to specify the threshold levels of work for development progress when the board approves a subdivision or site plan.
Rule XVI, 4, retains the current requirement for a countersignature on approved plats. Last year’s draft rules would have abolished this requirement.
Rule XVII, 1, should be deleted. This rule was intended to prevent board members from identifying themselves as such when they write letters to the newspapers. Unfortunately, come election time, some people do not honor this rule while other people do honor the rule.
Rule XVII, 3, notifies planning board members that the board of selectmen monitors all communications between planning board members and the Local Government Center.

The board thought that retaining the countersignature requirement was probably a good idea to prevent mistaken endorsement and recording.

AGENDA ITEM 7: Members Concerns

GL said that Cara Marston, the administrative assistant to the selectmen, knows all about bonding.

AGENDA ITEM 8: Public Input

JP said that the board had talked a lot about Thompson Road. There is a statute (RSA 231:62) that says that the town highway agent has charge of the maintenance of all town highways. If any maintenance happens on Thompson Road, then the town highway agent, George Bachelder, will have to have charge of that maintenance forever. The board should research that statute.

JP said that he had been watching the land use boards turn well-considered regulations inside out to help developers for quite some time, and JP wanted to discuss what this help had done in JP’s neighborhood. Four developers—Van Hertell, Alice Goldstein (AHG Properties), Mark Quimby, and Paul and Melissa Bicknell—have operated in the neighborhood during the last 10 years. The four developers together have created approximately 22 lots. 10 lots have been created since approximately 2005, and all of those lots are still vacant. Two of those vacant lots belong to Alice Goldstein, and they abut her Stagecoach project. Of the lots created by the most successful developer, Van Hertel, two homes have been foreclosed, and one of those foreclosed homes has been abandoned. The first foreclosed home lost 40% of its value when it sold for $150,000. The second foreclosed home is now asking $145,000. The planning board can grandfather Alice Goldstein from here to eternity, but the board cannot give her what she needs, which is buyers. The planning board has condemned this neighborhood to unending turmoil and trouble, and the planning board has encouraged developers to speculate irresponsibly. The planning board is supposed to prevent that kind of trouble, not cause it.

AGENDA ITEM 9: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of July 5, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of July 5, 2012, is adjourned at 9:29 P.M.

Minutes approved: August 2, 2012

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on July 7, 2012, from notes that I made during the planning board meeting on July 5, 2012, and from copies of the two Town tapes that Chairman Clayton Wood made on July 6, 2012.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.