MAY 7, 2009 Minutes

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

DATE: Thursday, MAY 7, 2009

ITEM 1. Call to Order at 7:00 P.M. by Gerard Leduc, Chairman

ITEM 2. Roll Call

Members Present:

Gerard Leduc (GL), Chairman, Bill Miskoe (BM), Vice Chairman, Fred Hast (FH), Selectman Ex Officio, Daniel Greene (DG), Jim Pritchard (JP), Rich Hunsberger, (RH), Ted Mitchell (TM), Alternate, Clayton Wood (CW), Alternate and Delores Fritz, Recording Secretary.

Members Absent:

Dan Schroth (DS).

(TM) Alternate, seated on the Board.

ITEM 3. Approval of Minutes of April 2, 2009

(BM) At the last Board meeting, the request for changes in the Minutes was tabled. There is a great deal of draft that has been struck out. Has this been done by the recording secretary or (JP)? (It is noted that these revisions were submitted by (JP).) “Is this really worth doing?” (JP) I think it is necessary. I could not figure it out. It was not accurate. He noted that he did not think the accusations against (FH) were fair. (BM) Was it necessary for you to correct the entire text to deal with your issue with (FH)? (JP) I corrected what I thought was necessary. In my opinion, yes, it was necessary. (BM) You amended the draft because you thought Fred was unfairly accused. Are you aware it cost the Town money for this to happen? (JP) “Enlighten me.” (BM) explained that with thirteen pages of detailed revisions, there would be the possibility of overtime and I am not sure Town needs to do that. Did you print this out? (JP) noted affirmatively that he, not the board secretary, had transcribed and printed the extra material. (JP) explained that he had used less of the board secretary’s time than (BM) had just done with his explanation. (BM) This is not an official draft of the Minutes. The only draft Minutes should come from the secretary. (TM) noted that there were extenuating circumstances. The Minutes as amended are a detailed account of what actually happened. (BM) I do agree with (TM) that from time to time there could be changes, but I have never seen draft Minutes amended to this amount. (JP) “It was not (FH) pushing to go ahead with this (Darrah), it was you.” (BM) noted that he did agree with this, and “I am not ashamed of it.”

(DG) Motion to accept Minutes of April 2, 2009 as amended. (TM) Second. Carried 5-0. (GL) and (RH) Abstain.

(BM) Motion to approve Minutes of April 16, 2009. (FH) Second.

Several changes were noted. After discussion: Board motioned and seconded to approve Minutes as amended. Carried 6-0 (RH) Abstain.

ITEM 4. New Business
1. Letter – Timothy F. Bernier – RE: Chase

(RH) They are not asking for refund of $320. but for unexpended funds. All we can do is recommend to BOS that they approve refund of $100.

(BM) Motion relative to letter from T. F. Bernier that Planning Board request Board of Selectman to refund any unexpended funds. (TM) Second.

(RH) I do not know who is going to determine what amount is refundable. I do not know how to deal with this.

(JP) Clarification on Motion. (BM) Motion that Planning Board request Board of Selectman to refund any unexpended funds that was spent on application by Christine Chase, which was withdrawn by Christine Chase.
(FH) There is the abutters notification fees, advertising and Kyle’s work regarding this. I would think it would be up to us to figure this out.
(BM) This Board should tell the BOS the amount to refund. (FH) Cara can talk with Dee and Kyle and figure this out.

(BM) I withdraw my Motion. BOS should have it figured out for them. (TM) I withdraw my Second.

(JP) I agree with (FH). The PB has to figure it out. (RH) We should recommend that nothing be returned. There are Kyle and Dee’s fees.

(BM) Motion that Planning Board request Cara Marston to determine how much of the $320. is expended and how much is left for refund.
(FH) Second.

Board discussed whether any additional fees should be charged, whether a refund is due, administration fees, utilization of time needs to determine refund and whether money from application fee has already been “spent by Town?”

(BM) I withdraw my motion. I do not feel Town requested these people to make or withdraw application and why we should offer them a refund. It was a voluntary withdrawal by Ms. Chase. We did not prevent her from going ahead. (FH) Withdraw my Second.

(JP) Motion to request Town Administrator to determine how much refund is due to applicant. (DG) Second. Carried 4-3 (BM), (GL), (RH).

2. Amenico Letter

(BM) This letter was sent to the BI for his opinion, which is not the appropriate route. The Building Inspector should not render an opinion, but they are requesting one from him. They would like a Waiver of Site Plan Review. (DG) Is there a form? (BM) Yes, Amenico needs to write a letter to this Board addressing the Waiver for Site Plan Review. (FH) “We should ask Amenico to apply for a Site Plan Review.” (BM) When they send the letter, they should send details. These new tenants change things. (JP) I think I heard (FH) say that a Site Plan should be submitted. (DG) read exception to the Board. (JP) I do not hear anything that requires them to have a Site Plan Review. (BM) Wait and see what they submit. (RH) We can decide to grant the exception or not. (FH) We know there are businesses in there but not where in the building. This should be presented to us as well as the Fire Department. The Fire Department does not know where the hazardous materials are within the building. (BM) Let’s see what they submit. We do not have enough details now. (JP) We should not be telling them to apply for a Site Plan Review. (RH) It seems to me that these people might possibly be in violation. It is not up to this Board to ask them to apply for a Site Plan Review. Kyle can investigate this. (BM) We should do nothing until we receive a request. They have not applied for anything. We do not have enough information to ask for more. (RH) We can either grant or not grant the exception and then it is up to them. (BM) We can make a decision after we see what they submit.

(FH) There are several changes of use within the building. (DG) What is change of use? (BM) There are changes of use. (FH) noted that the office used to be in the front part, but when Amenico was asked, they noted that it is in the back. Kyle, are you aware of this? Kyle, “No.” (FH) The Fire Department and the Police Department should know this. (JP) It seems to me that what (FH) is suggesting is that an application for exemption from site plan review would not be complete without a site plan. (FH) agreed. (BM) I suggest they submit the Waiver with supporting statements. (JP) If I am not mistaken, they are not changing anything outdoors. The Site Plan Review Regulations define an exemption when nothing changes outdoors. I do not think we should get in the business of making people jump through hoops when it is not necessary.

(DG) Motion to authorize Kyle (BI) to contact Amenico to advise them to submit written request for Waiver for Site Plan Review with supporting documentation to Planning Board. (TM) Second.

(FH) That building is two-acres large. We do not know what is inside of it. We should have a Site Plan Review. (RH) They have two options. They can either file a Site Plan Review or ask for an exemption. (JP) On the basis of what regulation or authority is the Planning Board going to look at the inside of these premises? What is inside is exempt. (DG) It is none of our business and we cannot enforce it. (FH) “Yes, we can.” (DG) “I beg to differ with you. It does not concern us.” (BM) read purpose of Site Plan Review Regulations. (JP) A purpose is not a performance standard.

Motion carries 5-0. (RH) and (FH) abstain.

3. Memo to Matt Monahan Re: Subdivision Amendment

(BM) I was asked if PB would make a change to the Subdivision Regulations and drew up this proposed amendment. I asked TA if it was appropriate for Planning Board to do this and he referred me to Matt Monahan.

(JP) The Planning Board has no jurisdiction whatsoever. I would recommend that this not be put in Subdivision Regulations. There is a case from the Supreme Court on this and Planning Board has no jurisdiction.

(BM) My concern is that this not be brought to Board as a change until a clarifying opinion can be obtained from Matt Monahan. I would recommend waiting to hear from Paul Skowron regarding this. I would think by the next time we meet that this will be resolved. If legally not possible, you will not hear about it again. (FH) There are two bodies that can accept a dedicated way and that is the BOS and the voters at Town Meeting. (JP) Fred is correct.

(JP) I had asked the Public Input be allowed during Work Session to allow people to participate in Work Session. I believe Carole Dodge has something to say. Let her speak.

Carole Dodge noted that she had received a letter in relation to her request to construct a pole barn. I am not on the Agenda for tonight, but I wanted to address a letter I had received from Kyle Parker and put your minds at ease before this gets out of hand.

(JP) Motion to allow Carole Dodge address Board now. (TM) Second. Carried 7-0.

Ms. Dodge noted that she had read the letter from the Building Inspector and then read her letter of response. “My cage was rattled as there was no afore thought about coming to me to listen to what I had to say.” Where has the idea come across that construction has begun without his presenting himself? He is unable to make that assumption. (BM) Do you think that you and Kyle could work this out? Ms. Dodge noted that a little bit of legwork could have been done and he could have come to the house to talk to me. He noted that he has been calling, but left no message.

(BM) The Building Inspector does not work for the Planning Board. He is employed by the BOS. Ms. Dodge noted that she was trying to get things corrected before anything has been done on this permit. We have tried to get the building permit in place. (BM) What do you want the PB to do? Ms. Dodge: “Be aware.” (JP) This is a very stern letter with a cc to PB. I understand why Ms. Dodge is here. Ms. Dodge: “This is why I am here, to straighten things out. I am forwarding a copy of this letter to the BOS.” (JP) Thank you, Carole, for coming in and expressing your concerns.

(BM) We cannot do anything about this. Ms. Dodge: “I have forwarded a copy to this Board. The Building Inspector did not follow through with the level of professionalism I would expect.” (BM) Since the PB has not been asked to take any action, the next process would be to take it to the Town Administrator. Ms. Dodge, “There are processes and I know how they work but a process was skipped. (RH) “Was this letter initiated by a complaint?” (BI) “There was, but this is not the venue for this.” (FH) You applied for the permit on April 15th? Ms. Dodge, “That is the first I’ve heard of it.”

Copy of letter will be forwarded to Board of Selectman.

4. Representative to CNHRPC

(GL) I am willing to stay on as representative. We do need one more. (FH) There should be one PB and one ZB or citizen on this. We can suggest this to BOS.

(BM) Motion to approve Gerard Leduc as representative of the Planning Board to CNHRPC. (DG) Second. Carried 7-0.

5. E-Mail Re: Workforce Housing

(BM) It sounds like it is up in the air. It is a moot issue right now. (GL) I believe it has passed the House and is currently in the Senate. About 20% of housing needs to be workforce housing. It was noted that this would not be a problem in Pittsfield.

ITEM 5. Selectman’s Report – Fred Hast, Selectman Ex Officio

(FH) Everything is going well. No problems at this time.

ITEM 6. Building Inspector Report

Kyle Parker (KP) “I have noted several items in my letter, some of which have already been addressed.

1. Amenico- addressed previously.
2. Christine Chase – addressed previously.

3. Flow Charts from other Towns. This is just for informational purposes to make the process easier.

(JP) I created a flow chart of procedures because I knew he was working on this. (This is not yet available for Board review.)

(FH) Bill, you mentioned that BI does not work for us. He does work for us. He is the administrator for the Planning Board. (BM) In terms of job performance, the complaint from a taxpayer should be addressed to BOS not PB.

4. Dan Schroth

(RH) I am a little confused. Is this because of home occupation? (KP) related that it is because of retail sales operation on Clough Road. (BM) The question came up that as a member of the Planning Board, he is in violation of Zoning Ordinances. (JP) The issue is not home occupation; it is the displaying of the benches. (BM) It is a Zoning Ordinance enforcement issue. (RH) Is this an issue because of a complaint? (KP) Yes, multiple complaints.

5. Research as to number of elected Board members

(KP) There is a question whether this is a five or seven-member board.

(FH) Article 1 on the ballot in the Annual Report – 2008 should establish that this is a seven-member Board. That should put this to bed. (JP) noted that though there were six people on ballot, this is not a vote to expand the Board. The Town Clerk writes the ballot and the Town Meeting does not have chance to object. This is not a vote to expand the Board to seven members. Christine Fillmore, of LGC, suggested investigating the warrant article that made the planning board elected instead of appointed. This warrant article does not specify the number of board members. She has suggested that two of the Board members are not legal. I would suggest that it would be a good idea to research the legislative history of RSA 673:2, II. As that statute is written now, the Town Meeting would have to decide if the planning board was to be expanded from five to seven members.

(RH) It has been a seven-member board for at least the last ten years. Does it mean going back and saying decisions have not been correct. (JP) In order to challenge, it would have to be within the thirty-day appeal time period. The only vote that would be in danger would be Mr. Darrah. None of the prior decisions are in jeopardy.

(JP) I would suggest going back and specifying a term period for alternates Ted Mitchell and Clayton Wood.

Board discussed various ways the Board could be returned to five-member Board such as judicial intervention, “crunching the numbers of past elections to determine who would have best claim”, possibility of voiding entire election and re-establishing board, replacing entire board, opinions as to who should resign, who would have the shortest remaining term, and should the Board cease making decisions that might potentially be challenged.

(GL) We should pass this information on to the Town attorney before we go any further. (JP) I would not do that. Someone should go to the law library and see if we can figure this out ourselves. (BM) I would prefer a legal opinion rather than have someone who is not qualified read the law. Who is qualified on the Board to do this? We need a legal opinion.

(CW) Can you fix this if two people would resign? It would save the Town a lot of grief. It is so messed up now. (JP) Christine Fillmore, LGC, noted it would be a good idea to figure this out for ourselves. She suggested some type of voluntary action. (CW) The Planning Board cannot shut down. (FH) Why should two members step down? (CW) Planning Board does not have right to have a seven-member board. Even if it goes before a judge the date is inconsistent. (JP) If it were ever done, it would have to be on a Warrant. If two people resign, we would not know if it were the right two people. If we research this and make a decision ourselves, it is likely to be ratified by a judge. (CW) noted that two people can resign, which would be acceptable as anyone can resign if they choose.

Board discussed the resignation of two Board members noting that two came into position as flawed process. (JP) Clayton is right; if they voluntarily resign, we have no other choice but to accept their resignations. (RH) Two members could resign and then at the next Town Meeting it could be on a Warrant. (CW) This would allow them to get out quickly and legally and would involve spending the least amount of money. (RH) I suggest the Town Administrator look into this and see how we can resolve it.

9:20 P.M. – Fred Hast left meeting.

(BM) related that, perhaps, we could ask individual who does not attend meetings to step down. (JP) noted he would not agree with this because member attendance and planning board size are two separate issues. Let’s stay within our jurisdiction. (RH) asked (JP) whether (JP) had crunched any numbers to see whom a judge might say would stay or go. (JP) answered that planning board terms must be staggered. A term staggering of 2 members elected in one year, one member elected in the second year, and one member elected in the third year would appear to leave (RH), (DS), and (GL) with the weakest claims to planning board seats because each of them came in second in his respective election.

ITEM 9. Public Input

None.

ITEM 10. Adjournment

(DG) Motion to Adjourn. (JP) Second. After discussion, Vote: 3-3 Motion fails. Yes: (RH), (BM), (GL). No: (DG), (TM), (JP).

(JP) noted that Board was going to revise the Rules of Procedures for the Planning Board and if anyone had reviewed them and would like to proceed with recommendations. (BM) noted that he had some preliminary changes that he would like to go over. Other members also suggested preliminary changes.

Suggested changes: (Underlined)

TOWN OF PITTSFIELD
PLANNING BOARD

RULES OF PROCEDURE

I. AUTHORITY

These Rules of Procedure are adopted under the authority of New Hampshire Revised Statues Annotated, Chapter 676:1.

II. MEMBERSHIP; TERMS OF OFFICE; OFFICERS; VACANCIES

1. Pursuant to RSA 673:2, the Planning Board shall consist of
seven (7) members, six (6) of who shall be residents of the community elected by the Board of Selectmen and the seventh member shall be a selectman designated by the Board of Selectmen as an ex-officio member with the power to vote.

2. Except for the Selectmen’s representative, members shall be elected in staggered terms pursuant to RSA 673:5. The membership of the Board shall be elected in such a manner so that two (2) members shall be appointed each year.

3. Term of Office shall commence upon election and after the Board member has been sworn in.

4. The Planning Board shall elect officers from its members, provided however, that the Selectmen’s ex officio member shall not serve as Chairman. RSA 673-A provides that the Board may create other officers as deemed necessary.

5. A Chairman shall be elected annually in the month of April, or such times as may be determined by the Board by a majority vote of the Board members present and voting. Said Chairman shall serve for one year and shall be eligible for re-election. The Chairman shall preside over meetings and hearings and make such appointments as the Board may direct and shall act for the Board on all matters not requiring a vote of the members.

6. A Vice-Chairman shall be elected annually as provided in No.5 above. The Vice-Chairman shall have the full powers and duties of the Chairman on all matters, which come before the Board during the absence of the Chairman.

7. A secretary shall be appointed as needed. . The secretary shall be responsible for preparing and maintaining minutes of all meetings and hearings and filing minutes with the Town Clerk as provided by RSA 91-A2, II and such other functions, as the Board shall direct However, the Board may retain a recording secretary whose minutes shall be reviewed by the Board for accuracy. The Secretary shall countersign the Chairman’s endorsement of the Board’s approval on plats and other documents as required. In the absence of the Secretary, the Vice- Chairman shall countersign the endorsement of the Board’s approvals.

8. The Board of Selectmen may appoint up to three (3) qualified alternates who shall be appointed to three (3) year terms. The initial appointments of alternates shall be staggered as per
RSA 673:6.

9. Removal of members shall be in accordance with RSA 673:13, II, after public hearing, elected members and alternates may be removed by the Board of Selectmen upon written findings of inefficiency, neglect of duty, or malfeasance in office.

III. ADMINISTRATIVE ASSISTANCE

The Office of the Building Inspector or the Office of the Town Administrator shall provide administrative assistance to the Board. The assistance shall ordinarily include the following:

1. To receive applications and fees for Site Plan Approvals; the Subdivision of Land; Mergers of Lots; Boundary Line Adjustments; Earth Excavations; requests to amend the Zoning Ordinances; applications for Driveway Permits; requests for re-hearings; and other filings that are required to be received and heard by the Planning Board.

2. To review all applications or filings under No.1 above and to prepare a written report or oral presentation for the Planning Board on such filing with regard to any deficiencies within such applications.

3. To conduct such correspondence as the Board may direct regarding applications submitted under No. 1. above or the enforcement of orders of the Board.

4. To provide other administrative assistance as may be required in order to fulfill the obligations of the Board.

IV. MEETINGS AND HEARINGS

1. Meetings shall be regularly held each month on the first Thursday at 7:00 PM. Notice of the time and place of each meeting shall be given to Board members and alternates and shall be posted in two places in the Town, at least 24 hours, excluding Sundays and legal holidays, before such meeting, as required by RSA 91-A:2,II. The Board shall hold work sessions as needed; they will ordinarily be held on the third Thursday of each month at 7:00 PM.

2. Regular or special meetings of the Board shall be held in Town Hall unless the Board shall vote to meet at some other different place for a particular meeting.

3. Special meetings of the Board shall be held at the call of the Chairman or by written request of a majority of the Board members.

4. Any Board member who will be unable to attend a meeting shall notify the Chairman, Vice Chairman, Town Administrator, or Building Inspector as soon as possible. The Board encourages members and alternate members to attend all meetings of the Board. Members who are consistently absent may be subject to removal in accordance with RSA 673:13.

5. Public Hearings on applications and approvals for the actions under the jurisdiction of the Board will be held in conjunction with the regular meeting. Notice of each public hearing shall be sent by certified mail to the applicant and every abutter, shall be posted and shall be published in a newspaper of general circulation in the area for not less than five (5) days before the date fixed for the hearing of the appeal. Notice shall also be given to the Board of Selectmen and to others whom the Board feels may have an interest in the case.

6. A public hearing shall be held within thirty (30) days of receipt of a completed application.

7. Following the approval of a subdivision, the Chairman or Vice Chairman and Secretary will sign and date the Plot Plan and instruct that the Plan be recorded with the Registry of Deeds within 10 calendar days of approval.

Should a subdivision be conditionally approved, the Plot Plan will be signed following the receipt of documentation, which substantiates fulfillment of said conditions.

8. All meetings and records of the Board shall be open to the public in accordance with RSA 91-A:4. Minutes shall be available within 5 business days of the Board meeting.

V. QUORUM

1. A quorum for all meetings of the Board shall be four members including alternates sitting in place of a regular member.

2. If any regular Board member is absent from any meeting or hearing, or disqualifies himself from sitting on a particular case, the Chairman shall designate an alternate member to sit in place of the absent or disqualified member and such alternate shall be in all respects a full member of the Board while so sitting.

3. An affirmative vote of a majority of members voting on a motion shall be sufficient for adoption of the motion. Members of the Board present may be counted to determine whether a quorum is present although they may abstain from voting affirmatively or negatively. Persons abstaining shall not be considered “members voting” in determining whether a motion has been adopted. Members are expected to vote on matters before the Board, unless that member has recused himself/herself. Abstaining from a vote is discouraged, unless the issue pertains to business that took place when the member was absent.

VI. DISQUALIFICATION

If any member shall find it necessary to disqualify himself from sitting in a particular case, he shall notify the Chairman, Building Inspector, or Town Administrator as soon as possible so that an alternate may be requested to be present to sit in his/her place. The disqualification shall be announced by either the Chairman or the member disqualifying himself before the beginning of the public hearing on the case. The member disqualifying himself shall absent himself from the Board table during the public hearing and during all deliberation on the case in accordance with RSA 673:14: No member of the Planning Board shall participate in deciding or shall sit upon the hearing of any question which the board is to decide in a judicial capacity if that member has a direct personal or pecuniary interest in the outcome which differs from the interest of other citizens, or if that member would be disqualified for any cause to act as a juror upon the trial of the same matter in any action at law. Reasons for disqualification do not include exemption from service as a juror or knowledge of the facts involved gained in the performance of the member’s official duties. (See RSA 673:14, I.) RSA 500-A:12 provides that any juror may be required by the court, on motion of a party in the case to be tried, to answer upon oath if he:
(a) Expects to gain or lose upon the disposition of the case;
(b) Is related to either party;
(c) Has advised or assisted either party;
(d) Has directly or indirectly given his opinion or has formed an opinion;
(e) Is employed by or employs any party in the case;
(f) Is prejudiced to any degree regarding the case; or
(g) Employs any of the counsel appearing in the case in any action then pending in the court.
(h)
If it appears that any juror is not indifferent, he shall be set-aside on that trial.

VII. ORDER OF BUSINESS

The order of business for a regular meeting shall be as follows:
1. Roll call and confirmation of a quorum.
2. Minutes of the previous meeting.
3. Public Hearings on completed applications for subdivision or site plan.
4. Public Hearing on design review stage of subdivision.
5. Conceptual consultation of subdivision or site plan.
6. Other business.

VIII. CONDUCT OF PUBLIC HEARINGS

The conduct of Public Hearings shall be governed by the following rules:

1. The Chairman shall declare the hearing in session.

2. The applicant shall be called to make his/her presentation on the request.

3. The applicant shall be allowed to speak to the comments and/or testimony of those in opposition to the proposed action.

4. Members of the Board may ask questions at any point during the presentation. Questions shall be directed through the Chairman.

5. Any person who is not a Board member or alternate and who desires to ask a question of another person must do so through the Chairman.

6. The Chairman, at his/her discretion, may permit other interested persons to speak or to ask questions pertinent to the application.

7. Each person who speaks shall be required to state his/her name and indicate whether he/she is a party to the application, or an agent or counsel to the application, or an abutter or other interested person.

8. The hearing on the application shall be declared closed and the next application called up.

(BM) Motion to adjourn. (TM) Second. Carried 6-0.

Approved: June 4, 2009

_______________________________ ____________________
Gerard Leduc, Chairman Date

II Tapes