May 3, 2012 Minutes

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

DATE: Thursday, May 3, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:07 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), and Clayton Wood (CW, chair).

Members absent: Bill Miskoe (BM, associate member), Peter Dow (PD, alternate, term expired on March 17, 2012), and Larry Konopka (LK, selectmen’s ex officio alternate).

Other town official present: Jesse Pacheco, building inspector.

Members of the public appearing before the planning board: None.

AGENDA ITEM 3: Approval of Minutes of April 5, 2012

GL moved to approve the minutes as written in draft.

PH seconded the motion.

Discussion:

No member saw any problems in the draft minutes.

Vote to approve the minutes of April 5, 2012, as written in draft: carried 4 – 0 – 0. (Voting “yes”: JP, PH, GL, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 4: New Business/Work Session

CW referred to RSA 673:6, II, which says that terms of alternates are to be 3 years. On the other hand, RSA 673:6, II, says that the terms of alternates are to be staggered, so the board would have to appoint someone to a one-year term if the board were appointing 3 or more people.

The board reasoned that it could reappoint PD to a one-year term, which is what he wants, because the board currently has no alternates and because the law appears to allow the board to use a one-year term in such a situation to achieve staggered terms.

JP moved the board to reappoint PD to a one-year term as alternate.

GL seconded the motion.

Discussion:

GL supported the motion, but GL wants to advertise the position for other alternates.

Vote to reappoint PD to a one-year term as alternate: carried 4 – 0 – 0. (Voting “yes”: JP, PH, GL, and CW. Voting “no”: none. Abstaining: none.)

CW discussed topics that he wanted to discuss in detail at subsequent meetings:

Topic 1: Members’ contact information, the web site, and e-mail.

CW asked members to verify the accuracy of the contact list.

Each of the members present said that his contact information was correct. CW said that he knew from PD that PD’s contact information was correct. CW said that he would check with BM on BM’s contact information.

CW said that he would like members to think about what they want to see on the planning board web site and whether all members want to post their personal e-mail addresses on the web site.

PH asked about any disadvantages of having members of the public contact members of the planning board by e-mail.

CW explained that the town does not own the e-mails because the town does not provide the e-mail service. CW explained that RSA 91-A applies to e-mails and does not allow the board to conduct business by way of e-mail. At the school board, e-mails used to schedule meetings are not attached to the minutes, but e-mails relating to voting issues are attached to the minutes. If members want to communicate to the board, the best way to do it is to send communications through Dee Fritz, who will put the communications in the appropriate folder or folders. Certain one-on-one communications with the chair are appropriate because the chair decides what matters to put on the agenda.

GL said that he does not like to see e-mails with a list of “cc’s” (carbon copies) to the whole group. GL has no problem with communicating one to one, but such e-mails should also come to the planning board meeting if the e-mails pertain to the planning board. GL will present to the planning board any e-mail that GL receives in relation to the planning board.

CW said that the school board avoids using e-mail in order to avoid accidental sequential communications.

JP said that the board should understand that RSA 91-A does not prohibit all sequential communications. It prohibits sequential communications in which a decision gets made. Thinking that everything that a public official does 24 hours a day, 7 days a week, is in the public domain, is not helpful.

CW agreed but said that use of e-mails could result in confusion.

Topic 2: The zoning ordinance as the town meeting revised it.

CW referred to the zoning ordinance as the town meeting revised it. JP and Dee Fritz compiled the new zoning-ordinance document. Dee printed only the first 35 pages because only those pages changed.

JP said that material after the first 35 pages refers to the draft version prepared for the town meeting. The 2011 zoning ordinance resumes at page 26.

Jesse Pacheco said that he would like a full copy in electronic form so that he can put a searchable form on his computer.

CW said that he will put the revised zoning ordinance on the web site soon.

Topic 3: Local Government Center guidelines for minutes.

CW referred to the Local Government Center Minutes 101. CW gave JP these guidelines last year, and JP is following them. The guidelines say to remove the banter and colorful language unless they add real substance to the meeting. In approving the minutes, the board should look to avoid such inflammatory material so that the board will build its credibility with the minutes.

GL said that the minutes do not have to match the tape and should not include personal issues.

CW said that it was easy to say emotional things in the heat of a moment, things that the person would not really want to say.

Topic 4: Rules of procedure.

CW said that JP had not distributed the draft rules-of-procedure document because of information lacking from the New Hampshire Department of Transportation (“NHDOT”) and because of CW’s concerns about how the zoning-amendment hearings went and about the public’s right to speak.

In relation to the NHDOT, CW said that three maintenance districts—3, 5, and 6—maintain state highways in Pittsfield. Past planning board chair Ted Mitchell forgot to send a letter to the NHDOT asking for guidance in notifying them of development projects on or near state highways, so CW has sent letters. The rules of procedure should have these guidelines. The NHDOT has not yet answered.

In relation to conducting hearings and what the public can say at these hearings, CW found an article on the web site of the Office of Energy and Planning: Free Speech at Public Meetings – The New Hampshire Right-to-Know Law (H. Bernard Waugh, Jr., Esq.). This article makes clear that the public does not have a right to speak at a planning board meeting. People criticized past chair Ted Mitchell for saying that speaking at a planning board meeting is a “privilege,” but in reality it is a privilege, although telling the town that speaking at a planning board meeting is a privilege may not be the best way to explain the speech limitations. The school board has a policy on public participation. Speech must be limited to the subject matter on the agenda and must be civil. The school board may impose time limits. The school board chair could terminate speakers who acted as speakers did at the zoning-amendment hearings. When many people attend a school board meeting, the issue is usually contentious and people must obey time limits. The school board policy helps CW to manage school board meetings. The Waugh article makes clear that the planning board can keep public hearings on subject. During the zoning-amendment hearings, the board heard very little public input relating to development on class VI highways.

CW, as chair, will be only as successful as the board wants him to be and as the board will support him to be. The chair needs the support of the full board. CW wants to bring the rules of procedure to a public hearing so as to get public input and to get experience in conducting public hearings.

CW had asked JP to research some of the matters that the Waugh article discusses and to include appropriate material in the rules of procedure. CW asked JP to have the new rules of procedure draft for Dee Fritz to distribute next Monday, May 7. At the May 17 meeting, the board will review the changes that the board made last year, so as to accommodate BM, who was not on the board last year.

PH asked about the credentials of H. Bernard Waugh.

CW explained that the Office of Energy and Planning had posted the article on its web site. The article cites many court cases.

JP said that attorney Waugh used to be the chief legal counsel for the New Hampshire Municipal Association. Attorney Waugh wrote A Hard Road to Travel and is considered a peer of Peter Loughlin, who wrote New Hampshire Practice, Volume 15, Land Use Planning and Zoning. Regardless of these credentials, what the court cases say, not what attorney Waugh says, will govern.

PH said that, if the board adopts the Waugh material in the board’s rules of procedure, some of the people that PH has talked to will ask where did the material in the Waugh article come from?

JP said that he will not quote Bernie Waugh. JP will quote the U.S. Supreme Court or the NH Supreme Court. The cases will be clear.

CW said that the composition of the board changes frequently. The statute or case law citations are an important legacy of the board to tell future boards where this board found its ideas.

AGENDA ITEM 5: Building Inspector Report

The building inspector, Jesse Pacheco, said that the town has very little development activity. One house is under construction at 5 Pippen Lane. One house on Lyford Road is finishing. There are some maintenance projects. Jesse Pacheco is catching up on the Family Dollar store.

CW said that Jesse Pacheco had been good about keeping CW informed.

Jesse Pacheco and the board discussed problems with vague notices of decision and approved development plans that do not reflect all changes that happened during the approval process. Notices of decision and approved plans often do not include all of the conditions of approval. Approval conditions are sometimes in the minutes, but sometimes the decision statements may appear to conflict with statements recorded in the minutes. The board should be careful to know what it is approving and that Jesse Pacheco has a clear plan. The board should include Jesse Pacheco in the review and approval process so that the developer provides appropriate final plans. Jesse Pacheco can only hold the developer to what the plan shows.

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

GL said that the board of selectmen has many tax-abatement applications, about $1.3 million worth. They are from the most recent town revaluation.

GL said that the board of selectmen had made all of the committee appointments.

CW asked about appointments to the zoning board of adjustment (“ZBA”).

GL said that the ZBA is now full.

JP asked whom the selectmen had appointed to the ZBA.

GL said that the selectmen had appointed Paul Metcalf and Romeo Dubreuil to the ZBA.

JP said that he thought that the ZBA still had two open seats because the ZBA had had only two members (Carole Dodge and Paul Metcalf) and because Paul Metcalf was a reappointment and because Romeo Dubreuil was the only new appointment.

GL said that he will check on whether there are still open seats on the ZBA.

PH asked for clarification of the ZBA membership.

JP repeated the explanation that he gave GL. Because there had been three open seats, JP and Ted Mitchell had applied, but the selectmen’s minutes do not indicate that the selectmen considered either application.

GL said that the selectmen had not appointed Ted Mitchell because he is on many town committees already, and two selectmen said that they “were afraid that he will burn himself out.”

JP said that the selectmen had recently approved a driveway permit on Thompson Road and that the planning board has jurisdiction over driveway permits unless the planning board delegates that authority to someone else. JP had asked town administrator Paul Skowron and building inspector Jesse Pacheco about such delegation, and neither one knew anything about it. JP asked GL whether GL knew when and through what regulation or resolution the planning board had delegated to the board of selectmen the authority to grant driveway permits.

GL said that he did not know but that he would check into it.

PH asked whether road agent George Bachelder granted driveway permits.

GL and CW said no.

CW said that the statute, RSA 236:13, V, gives the authority to the planning board unless the planning board designates the board of selectmen to issue the permits.

AGENDA ITEM 7: Members Concerns

Members concern 1: GL’s concern with a business wanting to move to the site of the old box shop, now a sheet-metal company.

GL explained that a business wants to move to the site of the old box shop, now a sheet metal company, at the bottom of Broadway. The business will be an auction house, and the site is in the Light Industrial/Commercial District. GL said that Jesse Pacheco said that the zoning ordinance required the parking lot to be tarred. GL also wanted the board’s opinion on the use classification of an auction house.

JP referred to the definition of RETAIL SALES in the zoning ordinance:

RETAIL SALES: A store where merchandise is primarily sold for personal use to customers who select and buy the merchandise on the premises.

The board agreed that an auction house satisfies the definition of “retail sales.” The board noted that retail sales in the Light Industrial/Commercial District is permitted as a special exception. The board further agreed (1) that the zoning ordinance requires parking lots for businesses to have paved surfaces but not necessarily with asphalt (see Article 16, Section 6, (a)), and (2) that the proposed business had no grandfathering that would relieve it from the requirement for a paved parking lot. The requirement for parking lots to be paved has existed for many years, and dust containment is an important reason for the requirement.

Members concern 2: JP’s concern that the board acknowledge and thank past planning board chair Ted Mitchell for his service to the town.

JP said that he wanted the board, through the chair, to send Ted Mitchell a letter acknowledging and thanking him for his service as chair of last year’s planning board. JP said that, even with the defeat of Amendments 2 and 3, Ted Mitchell’s board was more professional and more productive by far than any previous board at least since the Schoppmeyer era. Ted Mitchell’s board rewrote two difficult articles of the zoning ordinance in their entirety. The board did not blindly cut and paste error-filled pieces from another town or rubberstamp what a contractor had done. The board did everything itself. Ted Mitchell confronted difficult issues that other boards found politically easier to ignore. Everyone on last year’s board contributed, but Ted Mitchell, as chair, was especially decisive, and his leadership made the accomplishments possible, and JP wants to acknowledge that.

CW asked for clarification that JP was asking for a letter of acknowledgement and thanks.

JP said yes.

CW asked whether anyone objected.

No board members objected.

CW said that Ted Mitchell is a good asset to the town and is still contributing to many committees. CW will write the letter. The board should thank people more often.

Members concern 3: PH’s concern with a boundary-line adjustment between his land and his neighbor’s land.

PH said that he owns land on Watson Street. The property is “L” shaped. PH’s neighbor wants to buy the bottom projection of the “L.” The transfer will reduce the frontage on PH’s land from between 150 to 200 feet to about 90 feet, which is nonconforming to the zoning ordinance. PH wanted to know whether he needs a variance before he comes to the planning board.

JP said that PH needs a variance before he comes to the planning board.

Members concern 4: CW’s concern with budget information.

CW said that he had budget information and will distribute it at the next meeting when BM is supposed to be present.

AGENDA ITEM 8: Public Input

No members of the public are present.

AGENDA ITEM 9: Adjournment

GL moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of May 3, 2012: carried 4 – 0 – 0. (Voting “yes”: JP, PH, GL, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of May 3, 2012, is adjourned at 8:39 P.M.

Minutes approved: May 17, 2012

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on May 5, 2012, from notes that I made during the planning board meeting on May 3, 2012, and from copies of the two Town tapes that Chairman Clayton Wood made on May 4, 2012.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.