May 17, 2012 Minutes

Pittsfield Planning Board
Town Hall, 85 Main Street
Pittsfield, NH 03263

DATE: Thursday, May 17, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:06 P.M.

AGENDA ITEM 2: Roll Call

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

Members absent: Gerard Leduc (GL, selectmen’s ex officio member), excused absence.

Other town official present: Jesse Pacheco, building inspector.

Members of the public appearing before the planning board: Hank Fitzgerald.

AGENDA ITEM 3: Approval of Minutes of May 3, 2012

JP moved to approve the minutes as written in draft.

LK seconded the motion.

Discussion:

No member saw any problems in the draft minutes.

Vote to approve the minutes of May 3, 2012, as written in draft: carried 3 – 0 – 2. (Voting “yes”: JP, PH, and CW. Voting “no”: none. Abstaining:
BM and LK.)

AGENDA ITEM 4: New Business/Work Session

AGENDA ITEM 4a: Website Contact Info

CW said that he had created a surrogate e-mail box, and CW will administer it. The e-mail address is planning@mypittsfield.com. Anyone wanting to e-mail the planning board can send e-mail to this address.

Jesse Pacheco asked whether all planning board members would be able to access the e-mail box.

CW said no. Only the chair will have access to the e-mail box.

AGENDA ITEM 4b: Use of E-Mail

CW said that e-mails can be used for scheduling and communication with the chair. Such e-mails should not be forwarded or otherwise propagated. A member can send an e-mail to the entire board, but recipients should not answer such an e-mail.

PD asked whether an e-mail message board would be permissible to keep everything open to the public.

JP said that an e-mail message board does not satisfy RSA 91-A. Members of the public must be able to attend the meeting and hear the board members’ communications where the meeting is happening. (See RSA 91-A:2, III, (c): communications between members meeting must be “discernable to the public in attendance at the meeting’s location.”)

LK said that the board of selectmen uses the town administrator to distribute e-mails.

CW said that the planning board’s administrative secretary, Dee Fritz, already does some of that kind of distribution, but some distribution is appropriate for the chair to do by way of e-mail. When Dee Fritz distributes information to members’ folders, some of the members may not take that information until the beginning of the meeting. In some cases, the chair may need to get information to members in advance of the meeting.

AGENDA ITEM 4c: Website Document Update

No discussion.

AGENDA ITEM 4d: PB Budget Info.

CW said that, for the calendar year 2012, the planning board’s budget is $4600. The combined budget of the planning board and zoning board of adjustment (“ZBA”) is $5650. The planning board has already used $870 on paid secretarial services, not including recording services (which JP does for free), since January 2012. The ZBA has spent nothing this calendar year.

CW said that, in the calendar year 2011, the planning board spent $4465 on secretarial services without having a paid recorder. The planning board is exhausting its budget even without having a paid recorder.

CW said that, in the calendar year 2008, the planning board spent approximately $6000, when Dee Fritz was preparing the minutes. From this number and last year’s expenses, CW extrapolated that the board would need approximately $2000 to $3000 more if the board hired a recording secretary to attend meetings, take notes, and prepare minutes.

PH asked what would happen if the planning board went over its budget?

BM said that the board would have to ask the selectmen for more money.

AGENDA ITEM 4e: Guidelines for Minutes

CW said that, at the beginning of the planning board’s 2011 session (in April 2011), CW gave JP Minutes 101, a publication from the Local Government Center (“LGC”). This publication has guidelines for what minutes should contain and for what minutes should not contain. CW thinks that JP has followed these guidelines, and CW wants the board to adopt the Minutes 101 guidelines as the board’s official policy on minutes.

BM asked whether JP could meet the 5-business-day deadline of RSA 91-A:2, II.

JP said that he almost always has the draft minutes finished on the Monday morning following the board’s meeting on a Thursday.

CW said that Dee Fritz posts the draft minutes on the bulletin board but that the web site committee posts only approved minutes on the web site.

BM said that, once minutes are approved, “there should only be one version posted, and that should be the approved form.” After the board has approved the minutes, the board should make the draft minutes “go away.” BM said that the differences between draft minutes and approved minutes could be confusing.

JP said that RSA 91-A requires that both sets of minutes be saved but not necessarily posted on the town web site. Because draft minutes may be and frequently are different from approved minutes, the minutes of the meeting that changed the previous meeting’s draft minutes must precisely itemize all of those changes.

BM described a spectrum of minutes content ranging from verbatim to a conceptual description of what happened. In the middle would be a nonverbatim but factually correct version. BM asked what, in this spectrum, did the board want the minutes to be?

JP said that verbatim minutes are so voluminous that they actually obscure what happened.

CW said that RSA 91-A does not require much. CW stressed that the Minutes 101 document said that minutes should be fair and objective. The board should be looking for this condition when it approves the minutes. Minutes 101 even says to omit negative sentiment and bantering. Accusations made during a meeting add nothing and should not be in the minutes.

BM stated three issues: (1) BM wanted verbatim comments recorded in the minutes if a board member requested them, (2) BM asked whether a lack of verbatim accounts would be a problem if someone appealed a planning board decision, and (3) BM wanted the rules of procedure to contain a statement that the board intends the minutes to be “fair and objective” if the board decides that the minutes will not be verbatim.

CW said that the chair should decide requests for verbatim quotes.

JP said that a lack of verbatim quotes would not be a problem in an appeal of a planning board decision.

JP said that the rules of procedure do not need a statement that the minutes will be “fair and objective,” because JP thinks that the state law already implies that the minutes should be fair and objective. Certainly the state law does not suppose that minutes may be unfair.

LK said that, during the minutes-approval process, a member will sometimes want to add some small but important information that was omitted. The recorder will have to review the tape to determine exactly what was said. LK said that the board might have an alternate sit with the board during public hearings and write those minutes.

PD said that either the chair or the whole board should have the final say on verbatim quotes because the minutes should reflect the sentiments of the whole board, not the sentiments of one individual.

BM clarified that he thought that any member should have the right to include verbatim any comment that that member thinks is very important.

JP said that the board will have the final say because the board approves the minutes. JP almost always includes verbatim quotes if a board member so requests. If JP decides that the requested quote is unreasonably long and should be condensed, then the board member requesting the quote can bring the matter to the board during the approval of those minutes, and the board will decide whether to include the whole of the quote verbatim.

CW said that the minutes are a critical document because they are the record of what the board has done.

BM insisted that the board’s rules of procedure or some other procedural document must contain a statement that the minutes will be fair and objective to compensate the fact that the minutes will not be verbatim.

CW said that the board would defer discussion of the rules of procedure until the board was addressing that topic on the agenda. The board members should be looking for that fairness and objectivity when the members are reading the minutes. If the minutes have something that the board does not like, then the board should try to relate omitting that part of the draft to the Minutes 101 guidelines. CW asked for a motion to adopt the LGC Minutes 101 guidelines.

LK moved to adopt the LGC Minutes 101 guidelines.

PH seconded the motion.

Vote to adopt the LGC Minutes 101 guidelines: carried 5 – 0 – 0. (Voting “yes”: JP, PH, BM, LK, and CW. Voting “no”: none. Abstaining:
none.)

Hank Fitzgerald said that the board cannot vote on anything without having a public hearing. He retrieved from the bulletin board the notice of tonight’s meeting and gave the notice to CW. The notice said that the board would meet for a work session.

PH asked where the board will record its decision to adopt the Minutes 101 guidelines.

BM said that the board would have to have a public hearing on adding the guidelines to the rules of procedure.

JP disagreed that a public hearing was necessary for rules of procedure although the board might decide to have a hearing.

CW terminated the discussion on the Minutes 101 guidelines and said that the board will discuss including the guidelines in the rules of procedure as the board discusses the rules of procedure.

AGENDA ITEM 4f: Rules of Procedure

CW said that the board had started the rules-of-procedure revision project last year but that the board had deferred the project because of the zoning amendments.

CW said that the rules of procedure were supposed to have information from the New Hampshire Department of Transportation (“NH DOT”), but the NH

DOT has not yet answered CW’s letters asking in what circumstances the NH DOT wants the board to notify the NH DOT of development applications on or near state highways.

CW said that he had asked JP to research and include in the rules of procedure some of the speech guidelines in the Bernie Waugh article that the board had reviewed on May 3, 2012. (Free Speech at Public Meetings—The New Hampshire Right-to-Know Law, H. Bernard Waugh, Jr., Esq., SNHPC Planning Board Training Workshop, May 1994.) CW explained that the zoning-amendment hearings had impressed on CW the importance of guidelines for appropriate speech at board meetings. The conduct that happened at the zoning-amendment hearings would never have happened at a school board meeting. The Waugh article is enlightening, and its principles should be in the rules of procedure. CW said that JP had produced the revised document and had had Dee Fritz distribute the document on May 6, 2012. The document has a watermark saying “DRAFT May 6, 2012.”

CW said that JP had provided a cover letter describing the important new changes proposed in the draft rules of procedure.

CW reviewed the draft rules-of-procedure document page by page.

Page 3, Establishment and Membership: This page quotes verbatim the town meeting article establishing the 5-member elected planning board.

Pages 4 and 5, still Establishment and Membership: These pages present statutory requirements from RSA 669, RSA 42:1, and RSA 673.

Page 6: The big change here is that electing a secretary is mandatory. Previously, electing a secretary was optional. The most important reason to create the permanent office of secretary is to ensure that an acting chair is present whenever a quorum convenes. In addition, the secretary can endorse documents if the chair and vice-chair are both absent.

JP said that the officers section clarifies that the officers are elected at the regular meeting in April. The current rules just say that officers are elected in April.

Hank Fitzgerald asked whether combining the positions of secretary and recorder in one person “doesn’t make a lot of sense” because acting as chair and taking the notes is a lot of work.

CW said that he would have to do both tasks whenever JP (the recorder) is absent because the chair is ultimately responsible for the minutes.

CW continued with his review of the draft rules of procedure:

Pages 7 and 8: These pages have the material related to the circuit-rider planner from the Central New Hampshire Regional Planning Commission. The revision project is not changing this material.

Pages 9 and 10, General Provisions for Meetings and Hearings: These pages describe scheduling, notice, quorum, and related matters for meetings.

BM asked what was the notice required for a rescheduled regular meeting.

JP said that the notice was 24 hours, and JP cited Rule V, 5, for notice.

BM said that “rescheduled” implied that the time of the meeting had been set. BM suggested using “canceled” because, when the chair decides to reschedule the meeting, he may not have rescheduled it yet.

JP said that the board cannot cancel a regular meeting.

BM said that, to him, “rescheduling says time and place.” If the board cannot cancel a regular meeting, then, “maybe you should just say you postponed it.”

CW, JP, and LK thought that BM was reading “reschedule” “too literally” and that “reschedule” was acceptable. JP said that the rule could say “postponed and has or will reschedule” instead of just “has rescheduled.”

Page 11, General Provisions relating to speech guidelines: CW said that the board hears public input on two occasions: (1) an agenda item labeled “public input” and (2) a statutorily required hearing. Statutorily required hearings have nothing to with First Amendment rights. The issue is how can the board control the meeting to do the board’s work? The board wants public input, so the board must be clear on what is the board’s responsibility and what is the public’s responsibility. At a contentious school board meeting, the room will be full, and the chair will ask how many people want to speak. Then the chair will set time limits and guidelines.

CW said that, if the board opens public input without stating a topic, then the board must hear public input on any topic.

CW said that the school board requires public input to stay on the topic of the agenda item. The school board will not respond to off-topic public comments. If the school board wants to address an off-topic issue, then the board tells the speaker that the board will take the matter under advisement. The school board will tell the speaker when the board will address the matter later. The school board does not engage in banter.

CW said that, when the planning board is holding a zoning-amendment hearing, the public had no right to talk about anything else. The chair must keep the discussion on topic; otherwise, the board is not getting its job done. Banter goes nowhere but down.

LK said that it was important that the chair control the meeting. LK discussed how he chairs meetings of the board of selectmen. A board should not be reluctant to tell a speaker that the board will have to give answers to questions later. LK suggested that the planning board require members of the public to use the podium and speak directly to the board.

CW said that the chair has more power when everyone knows the rules and when the board backs the chair.

CW said that, when the agenda item is labeled “public input,” then the board has to listen to whatever the speakers have to say. But when the board is having a hearing, then the board must make the speakers know that they must stay on topic.

BM said that the chair should be able to set topic restrictions and time limits for a public hearing, but the chair should not be able to restrict the subject that the speaker addresses. BM does not want the speakers to speak in front of the board; BM wants them to speak from the middle of the side of the room so that everyone can hear the speaker.

CW explained that a planning board hearing is judicial in nature. The judge controls the hearing. The citations that JP included are worth reading.

CW referred to the Members Concerns section (page 15) and said that the speech guidelines there were similar to a public-input period. The members concerns period has always worked well.

The board discussed whether the alternates should sit at the table with the board during work sessions or during voting matters. CW said that he had often forgotten to tell the alternates that they can sit at the table in front of the board during work sessions.

CW discussed defining the alternates’ role. CW thought that giving an alternate a position on a subcommittee was a good idea. The master plan committee would give an alternate a lot of planning board experience. The alternates have been very valuable.

BM asked whether a majority of the board could overrule the chair on public input.

JP said that, during the members’ concerns period, a majority of the board could request a public-input period.

Hank Fitzgerald said that the planning board is not a judicial board. Hank Fitzgerald also urged caution in prohibiting speech once speech has started.

JP said that the planning board is a judicial board.

BM disagreed with JP and said that the planning board is a regulatory board, not a judicial board.

BM was concerned that the board cannot overrule the chair if the chair decides to exclude public input.

CW said that the chair can recognize anyone who raises his hand but that the chair controls who speaks at any time during the meeting.

BM asked whether the board had the right to override the chair if the chair refused to recognize someone that a majority of the board wanted to hear.

JP said no. The chair conducts the meeting.

CW agreed and said that the chair can actually keep anything from coming to a vote if the chair wants to do that. Talking about overriding the chair is dangerous. The purpose of these rules of procedure is not to control such an extreme situation; the purpose is to define the expectations of an orderly meeting. The members’ concerns period is designed to allow members to take public input that same night.

JP said that, if the chair opens public input to anyone, then he must open it to everyone.

CW said that the chair, in keeping order, has a difficult job in also being fair.

Jesse Pacheco discussed imposing time limits and treating everyone the same. Time given to one person must not be transferable to someone else.

CW discussed the chair’s responsibility to be fair in allowing everyone to speak.

PD said that the chair can keep the public on topic.

CW read the rules for public input on agenda items not labeled “public input” (draft Rule V, 17) and for public input on statutorily required hearings (draft Rule V, 18). CW discussed mandatory public input (statutory hearings) and chosen public input (voluntary agenda item labeled “public input”).

CW deferred further review of the rules of procedure to a later meeting.

Hank Fitzgerald read several of the statutory functions of the planning board.

LK said that allowing one person to speak on a contentious issue can be problematic because allowing the first person to speak might prompt other people to want to speak.

AGENDA ITEM 4g: Planning Board Focus for 2012-2013 Sessions

CW said that, last year, the board had decided at the beginning of last year’s session that the board would plan its year. That strategy was a good idea. The board obviously must do the rules of procedure, but the board should plan its other activities.

LK asked what zoning amendments the board would do.

CW said that he did not know yet.

JP said that the board cannot even think about zoning amendments yet because there are serious differences of opinion on the purpose of subdivision regulation. JP wanted a discussion of the purpose of subdivision regulation. JP quoted A Hard Road to Travel by H. Bernard Waugh, Jr., Esq.: “An occupied building without adequate access is the prime evil the subdivision laws seek to prevent.” (Page 144.) JP thought that some current board members acted in opposition to that principle during the zoning-amendment hearings. JP wanted to know whether the board thought that the purpose of subdivision regulation was something other than preventing an occupied building without adequate access, and, if the board does think that the purpose is some other thing, then the public should know that.

CW said that the subdivision regulations are very confusing and are the board’s worst document.

PH said that whether Bernie Waugh thinks that “this is terrible” was a matter of opinion. PH agreed that the board should discuss the purpose of subdivision regulation.

BM and PH said that the board should discuss what is “adequate access.”

JP agreed.

PH said that what is inadequate access in Nashua might be adequate access in Pittsfield. Somebody in Pittsfield or Berlin once in a while gets snowed in, and adequate access is by a snowmobile.

BM said that subdivision regulation is a set of rules on how and what an application must contain, rather than more subjective stuff. The subdivision regulations say that the planning board has to have a plan, it must show contours, it must have an engineer’s stamp, and so forth. “That’s, to me, the purpose of the subdivision regulations. It’s not to try to define something that’s missing from the zoning ordinance.”

LK agreed with BM.

The board agreed to discuss the purposes of subdivision regulation.

AGENDA ITEM 5: Building Inspector Report

Jesse Pacheco said that he had looked at the Greenleaf property on Route 28. Mr. Greenleaf has cars parked at an auto dealership that he owns, and he also has cars parked on an adjacent lot that he owns but where he may not have proper permission to park cars.

BM said that Mr. Greenleaf must come to the planning board for a site plan review for change of use from residential to auto dealership.

Jesse Pacheco asked what is the limitation on the number of principal uses on a lot.

JP said that multiple uses are permitted, but the lot must have no more than one principal building.

BM said, “for the record,” he had advised Mr. Greenleaf that Mr. Greenleaf would probably have to come before the board for a minor site plan review.

Jesse Pacheco said that the Dollar Store has done almost everything that Jesse Pacheco told it to do.

Hank Fitzgerald said that there is a planning board file from 1990 or 1989 relating to the Greenleaf property. Hank Fitzgerald said that the planning board should investigate that file. Hank Fitzgerald said that Mr. Greenleaf’s auto dealership is a retail sales and must therefore apply for a special exception.

Jesse Pacheco disagreed with Hank Fitzgerald. “Automobile Dealers (new & used)” is a use permitted by right in the Light Industrial/Commercial District, where Mr. Greenleaf’s property is located.

Jesse Pacheco and Hank Fitzgerald left the meeting.

AGENDA ITEM 6: Selectman’s Report—Gerard LeDuc, Selectman Ex Officio

LK said that the board of selectmen had to approve $1.4 million in property tax abatements. The abatements total about $40,000 in tax revenue.

BM asked what is the town’s total valuation.

LK did not know.

AGENDA ITEM 7: Members Concerns

LK said that working with the board is nice, but letting the public speak during work sessions can cause trouble.

PD asked why does the building inspector have to wait through the whole meeting to give his report?

CW said that the building inspector does not have to come to the meetings. Jesse Pacheco has been very active, involved, and helpful.

The board discussed moving the building inspector report up on the agenda.

PH said that he wants planning board meetings to end at 9:00 PM.

AGENDA ITEM 8: Public Input

Hank Fitzgerald and Jesse Pacheco left the meeting before the public-input period began. No other members of the public were present.

AGENDA ITEM 9: Adjournment

PH moved to adjourn the meeting.

BM seconded the motion.

Vote to adjourn the planning board meeting of May 17, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PH, BM, LK, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of May 17, 2012, is adjourned at 9:27 P.M.

Minutes approved: June 7, 2012

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on May 21, 2012, from notes that I made during the planning board meeting on May 17, 2012, and from copies of the two Town tapes that Chairman Clayton Wood made on May 18, 2012.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.