May 2, 2013 Minutes

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

DATE: Thursday, May 2, 2013

AGENDA ITEM 1: Call to Order

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

Members of the public appearing before the planning board:
Manny Sousa, president of K & M Developers, Hudson, NH; and
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 4: Approval of Minutes of the April 18, 2013 Meeting

CW deferred agenda item 3, Agenda Review, to after agenda item 5, the public hearing on Bailey Park.

BM moved to approve the minutes of April 18, 2013, as written in draft.

PH seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

Vote to approve the minutes of April 18, 2013, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: none. Abstaining: EN.)

AGENDA ITEM 5: Public Hearing for Bailey Park Subdivision to explore ways to satisfy a subdivision-approval condition requiring a permanent conservation restriction (Map R3, Lot 7)

CW read the notice of public hearing and described the history of Bailey Park’s conservation-restriction problem. In 2006 (June 15, 2006), the board mistakenly endorsed Bailey Park’s subdivision plat when the developer had not imposed a conservation restriction on the required conservation area. (See subdivision regulations section 5, K, 4 (section 5, I, 4, in 2006); the planning board’s notice of decision, March 31, 2006, condition 1; and the planning board’s report on Bailey Park, March 3, 2010.) The board has asked the building inspector (Jesse Pacheco) to withhold building permits from Bailey Park until the required conservation area has a conservation restriction. The board has notified all of Bailey Park’s owners of the building-permit moratorium. The purpose of tonight’s meeting is to explore means to impose a conservation restriction on the conservation area so that the board can lift the building-permit moratorium. In 2010, K & M Developers asked the board to force the then-current residents of Bailey Park into a homeowners association that would be responsible for the conservation area, but the town cannot ask these residents to assume such an obligation, because their building rights have vested. Consequently, the fact of multiple owners complicates the problem. The board consulted the building inspector and the Central New Hampshire Regional Planning Commission and had board-level discussions and then decided that tonight’s discussion might lead to a solution.

BM described the history of Bailey Park’s conservation-restriction problem.

CW asked how many owners Bailey Park has.

BM said five.

CW opened the hearing to public input.

Manny Sousa, president of K & M Developers, disputed that the town cannot force the Bailey Park residents into a homeowners association, because the conservation-restriction problem resulted from the planning board’s error. People buying into an open-space development should have known that it has a conservation area and that they would have to be part owners.

BM acknowledged the board’s error and said that Manny Sousa might be correct.

CW said that the current residents have vested rights.

Manny Sousa said that he had not acquired the conservation area in the original bankruptcy transfer from Trigger Development to K & M Developers, but Manny Sousa thought that K & M acquired it later.

JP referred to page 3 of the board’s report on Bailey Park (March 3, 2010). K & M did acquire the conservation area, Merrimack County Registry of Deeds Book 3165, Page 1265.

CW said that the board tonight was looking for the concept of a solution, which the developer could then refine with the building inspector and then present to the board.

JP referred to Manny Sousa’s suggestion that the town might be able to force current residents into a homeowners association. JP said that the zoning ordinance, the subdivision regulations, and the recorded deeds would have given the buyers no way to know that they might have to be members of a homeowners association. In fact, the required conservation restriction does not require the development to have any homeowners association. (Subdivision regulations section 5, K, 4.) Because K & M Developers owns the conservation area, K & M controls the solution to the problem. If K & M does not require other people to have part ownership of the conservation area, then K & M, by itself, can decide the conservation restriction and ownership questions.

Manny Sousa asked for clarification that Bailey Park’s conditional approval does not require a homeowners association. Could K & M Developers dedicate the conservation area to the Pittsfield Conservation Commission?

JP confirmed that Bailey Park’s conditional approval does not require a homeowners association.

Manny Sousa said that he would prefer not to have a homeowners association.

CW discussed the problem of allocating taxes to the remaining vacant, buildable lots that K & M owns.

Manny Sousa said that the conservation area would owe no taxes if he conveyed the conservation area to the conservation commission.

BM said that he is an alternate member of the conservation commission.

BM said that K & M could create a homeowners association for the remaining vacant, buildable lots, or K & M could retain ownership of the conservation area and pay the taxes, or K & M could dedicate the conservation area to the town conservation commission.

CW said that the essential requirement is a permanent conservation restriction.

Manny Sousa said that the best solution is to dedicate the conservation area to the town conservation commission.

JP emphasized that the board is not encouraging K & M to dedicate the conservation area to the town. The dedication must be K & M’s free-will decision.

Manny Sousa said that he wants to dedicate the conservation area to the conservation commission.

JP said that, in that case, Manny Sousa should go first to the conservation commission to see whether the conservation commission will accept the dedication. If the conservation commission will accept the dedication, then Manny Sousa should then go to the building inspector.

CW closed the hearing to public input at 7:28 PM.

AGENDA ITEM 3: Agenda Review

CW said that he had asked JP to revise the zoning ordinance with the amendment that the town meeting adopted on March 12, 2013. The revised zoning ordinance is on the town web site.

CW said that the board’s next meeting will be on June 6, 2013. At that meeting, the planning board will focus on composing its recommendation to the board of selectmen for AHG Properties’ request under RSA 674;41, I, (c), (1), to authorize the issuance of building permits on the class VI highway Thompson Road.

AGENDA ITEM 6: Bonding Considerations for the Stagecoach Condominium Cluster Subdivision (Map R44, Lot 1)

CW said that, at the last meeting, the board started to discuss bonding considerations.

JP referred to CW’s draft letter dated May 2, 2013, to AHG regarding bonding considerations. The last paragraph refers to both the planning board and the board of selectmen; consequently, the last sentence’s reference to “the board” is ambiguous. JP suggested that the letter should say which board, planning board or board of selectmen, “the board” means.

JP recused himself because his mother is an abutter to the Stagecoach Station project.

PD sat in JP’s place.

CW referred to his inquiry and response from the NH Local Government Center and his draft letter dated May 2, 2013, to AHG regarding bonding considerations. As a basis for his draft letter to AHG, CW used the draft letter that BM submitted to the board at the April 18, 2013, meeting. CW also referred to subdivision regulations section 7, Performance Bond and Maintenance Requirements for Subdivision Approval, which CW had distributed to board members. CW said that he had made a few corrections to BM’s draft letter to agree with state law and the subdivision regulations. Subdivision regulations section 7 vests the planning board with the responsibility to define the bond release. The release must be defined in the Developer Improvement Agreement.

CW discussed in detail the requirements of subdivision regulations section 7. The bonding must be in place before the board gives the plat final approval. The Developer Improvement Agreement specifies the performance, including the timing, of the bonding. The developer must complete the improvements within two years after the developer submits the final plat. The planning board can grant a one-year extension. The planning board decides whether the developer has defaulted. The developer shall start no construction without notifying the planning board two business days in advance. The developer must bear all town expenses in inspecting the developer’s work. The developer must certify that improvements are complete and must provide as-built plans before the planning board may release the performance bond. To protect the town against defects appearing after the developer completes the improvements, the planning board will retain 25% of the bond for two years after the completion.

BM said that RSA 674:36, III, (b), requires section 7 to be part of the board’s subdivision regulations.

CW said that he had included in the letter BM’s estimated bond amounts:
$50,000 for work on Thompson Road inside the NH DOT’s jurisdiction (this bond must also meet any other requirements of the NH DOT),
$100,000 for work on Thompson Road outside the NH DOT’s jurisdiction,
$770,000 for the infrastructure inside Stagecoach Station,
$75,000 for third party inspection including materials sampling and testing.

BM objected to the letter’s use of the term “completion bond” instead of “performance bond,” because the subdivision regulations use the term “performance bond.” BM said that AHG’s engineer, Jennifer McCourt, may want to meet with the town’s expert engineer, Louis Berger Group, to change some of the bond amounts. BM objected to AHG’s proposal for a bond for restoration instead of a bond for completion.

CW agreed that the board has no authority to require a bond for restoration. The bond must be for completion.

PD objected to the letter’s first sentence in part saying, “voted to require completion bonding and third party inspection,” because this phrase suggests that the board has a choice about requiring bonding for completion and about requiring payment for third party inspection. These requirements come from state laws and local regulations that the planning board must enforce without choice.

BM referred PD to the letter’s next sentence, which says, “these requirements are in accordance with Section 7 of the Planning Board’s Subdivision Regulations, adopted in accordance with RSA 674:36, III (b) and RSA 676:4-b, II.”

PD still thought that the first sentence, by itself, suggests a choice. PD thought that the board should not vote to require a bond. The board should agree that the law requires the bond and that the board must enforce this law.

EN asked that “by June 6, 2013” be changed to “before June 6, 2013.” This change will give the planning board time to prepare its recommendation to the board of selectmen under RSA 674:41, I, (c), (1).

BM asked that “the board” in the last sentence be changed to “the planning board.”

BM moved the board to send CW’s draft letter dated May 2, 2013, to AHG.

EN seconded the motion.

Discussion:

CW reviewed the changes that the board requested:
(1) change “completion bonding” to “performance bonding”
(2) change “the board” in two places in the last sentence to “the planning board”
(3) change “by June 6” to “before June 6”
(4) remove the reference to the board voting to require bonding and say instead that the board is enforcing nondiscretionary law

BM suggested using for the fourth change “The planning board has determined that it has a responsibility to require.” BM said that the bond that the NH Department of Transportation (“NH DOT”) requires is an indemnity bond, not a performance bond.

CW said that he will use the exact term for bonding that the NH DOT driveway permit uses.

Vote to send CW’s draft letter dated May 2, 2013, to AHG: carried 5 – 0 – 0. (Voting “yes”: PD, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 7: Selectman’s Report – Eric Nilsson, Selectman Ex Officio

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

EN said that the board of selectmen had replaced Mitchell Municipal Group with Upton & Hatfield as the town’s attorney.

JP asked when the board of selectmen had voted to hire Upton & Hatfield. JP said that he had not seen a vote on this matter in the April 16, 2013, minutes of the board of selectmen.

BM agreed that the April 16, 2013, minutes described an interview but not a vote to hire Upton & Hatfield.

EN said that he thought that the board of selectmen had voted on this matter at the board of selectmen’s last meeting, April 16, 2013. EN will check.

BM said that Upton & Hatfield is the corporate attorney for BM’s firm, Iron Dragon Corporation. Gary Richardson, a senior partner in Upton & Hatfield, has been the secretary of Iron Dragon Corporation since 1983. This secretary position is unpaid.

CW asked whether the board of selectmen had made any progress toward a decision for AHG under RSA 674:41, I, (c), (1).

EN said that the board of selectmen is working toward the decision.

AGENDA ITEM 8: Members’ Concerns

No board member expressed any concerns.

AGENDA ITEM 9: Public Input

Carol Lambert said that the NH DOT driveway permit specifies “a Performance Bond or Irrevocable Letter of Credit” as the road-construction security. (Driveway permit condition 23.)

Carol Lambert was concerned about AHG engineer Jennifer McCourt’s talking to the town’s expert engineer, Louis Berger Group. Carol Lambert said that Jennifer McCourt had proposed a $25,000 bond, had defended moving the stone wall bounding Thompson Road at the edge of Kathy Bleckmann’s field, and had defended the amendment provision in the conservation restriction because AHG might want to build a gazebo on the conservation area.

BM defended Jennifer McCourt’s talking to Louis Berger Group about the bond amounts. The planning board will listen to Louis Berger Group’s advice, but ultimately the board will set the bond amounts.

JP, speaking from the audience, agreed with Carol Lambert in that AHG’s engineer, Jennifer McCourt, should not talk to the town’s expert engineer, Louis Berger Group, because this contact creates a conflict of interest.

JP said that, if the board thinks that it must use the term “performance bonding” instead of “completion bonding” in the board’s letter to AHG, then the board should use the term “performance bonding for completion.” “Performance bonding” means bonding for specified performance; therefore, the board should specify the performance.

BM said that he did not object to adding “for completion.”

JP said that he had concerns about AHG’s two Developer Improvement Agreements, but JP said that he would defer these concerns because the board did not discuss the Developer Improvement Agreements.

EN referred to subdivision regulations section 7, B, 2, a, and said that this regulation requires a performance bond to be for completion.

AGENDA ITEM 10: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of May 2, 2013: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of May 2, 2013, is adjourned at 8:00 P.M.

Minutes approved: June 6, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on May 3, 2013, from notes that I made during the planning board meeting on May 2, 2013, and from a copy of the one town tape that Chairman Clayton Wood made on May 3, 2013.

____________________________________________
Jim Pritchard, planning board recorder and secretary

one town tape