DATE: Thursday, November 1, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:00 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); Clayton Wood (CW), chair; and Peter Dow (PD), alternate (arrived at 7:07 PM).

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, 83 Governor’s Road.

AGENDA ITEM 3: Agenda Review

CW said that he had left the agenda open until Tuesday, October 30, 2012, to give AHG Properties an opportunity to present information to the board. AHG asked for an appointment with the board on December 6, 2012, instead. CW said that he would have liked to work on the rules-of-procedure project during the break from AHG, but CW had not had time to prepare.

CW said that he had met with Jennifer McCourt from AHG and Matt Monahan from Central New Hampshire Regional Planning Commission (“CNHRPC”) two weeks ago for two hours on October 11, 2012. CW said that he preferred to defer discussion of the meeting at CNHRPC to the December 6 appointment. Andrew Sullivan, attorney for AHG, could not be present at CNHRPC. Jennifer McCourt will make a comprehensive presentation on December 6. CW asked Jennifer McCourt to have the presentation information to the board by November 29, 2012, to give the board time to prepare.

CW said that he had talked to Matt Monahan about the problem in Bailey Park, whose problem is that the open-space lot has no permanent conservation restriction. CW will meet with Matt Monahan again next Thursday, November 8, 2012, to discuss Bailey Park. CW has discussed Bailey Park with CNHRPC on and off for the past two months. The urgency of planning board action is less than it was two months ago because the zoning board of adjustment denied the variance for new construction in Bailey Park. Nonetheless, the planning board wants to resolve the Bailey Park problem as soon as possible.

CW referred to the CNHRPC recommendation to send a letter to the building inspector asking him not to issue any building permit to Stagecoach Station before the plat is endorsed and recorded. CW explained that such a letter is not a command from the planning board but is simply an informational tool to prevent mistakes. The building inspector already knows that he should not issue building permits to an unrecorded plat, but such a letter helps the building inspector keep track of urgent matters.

CW said that the planning board might write a letter to the board of selectmen regarding the issuance of building permits and the waiver of maintenance liability on the class VI highway Thompson Road. (RSA 674:41, I, (c), (1) and (3).) If the planning board writes such a letter, then the planning board should send a copy of it to AHG. CW will talk to building inspector Jesse Pacheco about the letter, and both CW and Jesse Pacheco will make themselves available to the board of selectmen.

AGENDA ITEM 4: Approval of Minutes of October 18, 2012

BM moved to approve the minutes as written in draft.

PH seconded the motion.

Discussion:

JP asked for the following change:

Agenda Item 7, page 6: change “board of selectmen are” to “board of selectmen—are”.

Vote to approve the minutes of October 18, 2012, with the change that JP requested: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 5: Selectman’s Report –Gerard LeDuc, Selectman Ex Officio

GL said that the board of selectmen was asking all departments to submit level-funded budget proposals because of the poor economy.

BM asked whether the selectmen had discussed any bonding requirements for Stagecoach Station.

GL said no but that he could raise the matter.

JP said that the planning board has exclusive jurisdiction on bonding.

CW confirmed that the planning board determines the amounts and forms of the surety bonds. CW said that the matters of building-permit issuance and maintenance-liability waiver were for the selectmen to decide.

AGENDA ITEM 6: Members’ Concerns

PH asked the board to discuss two letters that the board had received. The first letter is from Larry and Pat Stockman, 1078 Province Road, Gilmanton, NH 03237. The second letter is from Jim Pritchard, 125 Governor’s Road, Pittsfield, NH 03263.

The Stockman letter says that the Stockmans sold AHG an easement to widen Thompson Road but that the easement has made the Stockman lot unmarketable. The Stockman letter says that AHG needs more Stockman land along Route 107 but that the Stockmans will not sell AHG any more land.

The Pritchard letter says that the four selectmen Larry Konopka, Gerard LeDuc, Paul Rogers, and Linda Small are disqualified to judge the AHG case because their decision to apply for a driveway permit on AHG’s behalf creates a disqualifying conflict of interest.

PH asked the board first to clarify the planning board’s responsibility to decide bonding issues, and then to discuss the two letters.

CW explained that both the subdivision regulations and state law require bonding. (Subdivision regulations section 7 and RSA 674:36, III, (b).) State law says that the planning board’s jurisdiction is exclusive. (RSA 674:42.) The planning board decides the forms and amounts of surety bonds. The planning board will seek guidance from the town’s engineering firm because planning board members are not experts in the area of bonding. The Developer Improvement Agreement links the actual performance to the performance bond and to the release of the performance bond.

PH asked whether the applicant, in this case, AHG, can negotiate the amount of the surety bond.

BM said that the planning board sets the amount but that the amount must be reasonable.

CW said that the developer customarily works with the town engineer to develop a bond proposal.

PH asked for confirmation that deciding the surety bonds is the planning board’s exclusive jurisdiction.

CW said yes. CW said that The Planning Board in New Hampshire – A Handbook for Local Officials (page IV-20) explains the planning board’s bonding responsibilities well. The subdivision regulations specify a performance bond, which, as its name indicates, is a bond to guarantee certain performance. The planning board does not release the bond until the applicant satisfies the performance standards of his development application. The planning board can release the bonds in stages as the developer meets performance milestones.

BM asked how much money the board has in escrow to pay the town’s engineer, Louis Berger.

CW said that there is about $600 in escrow. The board had to pay CNHRPC much of the escrow money that had existed.

BM said that the board should ask Louis Berger how much money Louis Berger would need to evaluate the bonding requirements of Stagecoach Station and to supervise the construction itself. Once the board has that number, the board should ask AHG to put that amount in escrow now. The board has to be able to pay its experts.

CW said that Matt Monahan, of CNHRPC, had explained the process. AHG will approach Louis Berger directly and on behalf of itself to request a bond proposal. The planning board will not need to request money for escrow until Louis Berger proposes the bond.

BM said that AHG’s working directly with Louis Berger suggested a conflict of interest. BM thought that the planning board should be involved in these negotations.

CW said that Louis Berger will tell AHG how much the project will cost.

BM repeated his concern that AHG’s working directly with Louis Berger would put Louis Berger in a conflict of interest.

CW said that the applicant’s working directly with the town’s engineer is customary.

PH asked the board to review the Stockman and Pritchard letters.

CW said that the Stockman letter did not raise any issues under the planning board’s jurisdiction.

PH referred to the Pritchard letter.

JP recused himself and sat in the audience.

CW asked PD to sit in JP’s place.

BM said that there was no action for the board to take. If individual board members are disqualified, then whether to step down is their decision.

PH said that he was not asking for action. PH wanted to understand the conflict of interest that JP claimed. PH said that JP had raised a good question: Why is the board of selectmen instead of AHG asking for the driveway permit?

BM said that the board of selectmen was asking for the driveway permit because the town owns the road that intersects with Route 107.

JP said that BM’s reason was not precisely true. JP explained that the driveway statute, RSA 236:13, II, limits driveway permits to abutters. AHG does not abut Route 107, so AHG is not eligible to apply for the driveway permit. Consequently, AHG went to the selectmen and asked the selectmen to apply for the driveway permit for AHG, and the selectmen said yes. That agreement is where the selectmen created the conflict of interest. The selectmen now represent AHG in this subdivision application. GL might as well be Andrew Sullivan (AHG’s attorney) sitting on the planning board. GL represents AHG because GL voted to apply for the driveway permit on AHG’s behalf. The other three selectmen who voted to apply for the driveway permit have the same conflict of interest. JP said that the driveway permit obligates the town, not AHG. The permit obligates the town to do the work, to pay for the work, to pay for inspections, to pay for any necessary corrections, and to post a $50,000 bond. The board of selectmen is legally responsible for the driveway permit; AHG is not legally responsible for the driveway permit. The board of selectmen decided to front for AHG for the Thompson Road improvement project. JP does not say whether the selectmen could legally front for AHG in this way, but, because the selectmen did front for AHG, the selectmen are now AHG’s representative. Thus none of the four selectmen can sit on the planning board.

BM asked where is the town’s financial risk if the selectmen insist on full reimbursement.

JP said that the town’s financial risk is a different issue and that what BM is suggesting would be illegal for other reasons. The driveway permit on its face obligates the town. JP read from the permit:

Condition 3: “Applicant [that’s the Town of Pittsfield] shall at its expense construct the various improvements within the right of way…”

Condition 3, D: “The Applicant [that’s the Town of Pittsfield] agrees to pay these inspection costs.”

Condition 3, F: “Said corrections shall be made at the expense of the Applicant [that’s the Town of Pittsfield].”

Condition 23: “The Applicant must secure a Performance Bond or Irrevocable Letter of Credit payable to the State of New Hampshire in the amount of $50,000.”

“APPLICANT Printed Name LAWRENCE J KONOPKA

Title CHAIRMAN BOARD OF SELECTMEN

Date 3/20/12”

BM asked whether the town could refuse to proceed as applicant until AHG had guaranteed the project’s financing. BM sees no risk to the town.

JP said that the issue under discussion is not the risk to the town although there is plenty of risk to the town. JP said that BM is suggesting that the board of selectmen can grant a driveway permit on a state highway. The commissioner of transportation, not the board of selectmen, grants driveway permits on state highways.

BM said that the DOT conditions are concomitant on the Town of Pittsfield as applicant. But the board of selectmen should not proceed with the project until AHG has financially guaranteed it.

JP said that BM’s proposal is illegal, but JP stressed that the issue under discussion is whether the selectmen are AHG’s representative. Even in BM’s scenario, the selectmen are still AHG’s representative.

BM said that his concern was risk to the town.

JP said that the town is at risk because the driveway permit is illegal for multiple reasons, but the issue under discussion is whether the selectmen have a conflict of interest in representing AHG.

PH asked the selectmen’s ex officio member GL to comment. “Did they weigh in on this and offer to pony up any money or get any money from AHG? Did they ask for any?”

GL declined to comment other than to say that the selectmen have referred JP’s letter to the town attorney.

JP said that the town attorney has a conflict of interest because, as the board knows from the NH Local Government Center, the town attorney represents the board of selectmen, not the town government collectively including the planning board. Because the board of selectmen represents AHG, and because the town attorney represents the board of selectmen, the town attorney indirectly represents AHG.

CW said that the planning board must require AHG to establish a legal tie between the driveway permit and Stagecoach Station. CW said that he was concerned that AHG has no responsibility in the driveway permit. The board will address the road-maintenance liability in a letter to AHG. CW did not know whether AHG could do the Thompson Road improvement project legally.

PD said that the town’s possession of the driveway permit should give the town leverage over the construction of the whole project.

JP said that, because AHG would be relying on the driveway permit, the town could not simply refuse to fulfill the town’s obligation.

PD asked whether the town could insist on conditions on which the town would fulfill the driveway permit.

JP said that the town cannot create new conditions after the fact. JP said that there were substantial private-property rights in addition to town-risk considerations.

PD said that the town should be free to decide whether to do the Thompson Road improvement project or not.

BM said that the 2007 planning board had required an NH DOT permit but had not specified the details of its implementation. The board of selectmen cannot arbitrarily block the project, because AHG is relying on the permit as a good-faith satisfaction of the planning board’s condition of approval.

CW said that the board should not go deeper into the driveway-permit issue. The selectmen discussed the driveway permit in 2007. This driveway-permit issue is not the planning board’s responsibility. CW wants to see to whom the driveway permit legally connects. CW wants to see a Developer Improvement Agreement and bonds posted addressing the driveway permit. The board needs to let AHG return and present its case.

JP said that the conflict of interest involved substantial private-property rights. Condition 5 requires the applicant to secure all necessary easements. CNHRPC said that the project requires a drainage easement from the Sargents. AHG has no such easement. Because the easement condition is an unsatisfied condition precedent, the driveway permit is not valid. The drainage easement is thus an issue for the selectmen. The question of whether the selectmen can have a representative on the planning board helping to decide whether the selectmen’s own permit is valid should make the conflict of interest obvious.

CW said that the board should defer these matters to the December 6, 2012, meeting.

JP said that disqualification issues must be raised at the earliest time. JP cited Fox v. Greenland, 151 N.H. 600, 864 A.2d 351 (2004).

BM asked where did the driveway permit address the drainage-easement issue.

JP said condition 5. There will be Thompson Road runoff that will flow under Route 107 and onto the Sargent land. The CNHRPC report page 9, bullet point 8 (the 7th bullet point on the page) says that a drainage easement from the Sargents is necessary.

BM agreed but said that AHG could argue that AHG has the right to discharge water through the state’s easement to discharge water onto the Sargent land.

JP said that the original easement taking did not consider the additional water from Thompson Road.

CW said that the board should wait to the December 6 meeting. The board does need to study the conflict-of-interest issue.

PH said that understanding the Pritchard letter and the conflict of interest that it claimed was important to him. All of the speakers have made good points.

CW said that the selectmen need to resolve the conflict-of-interest issue.

PH said that the planning board was doing its job in taking care of details.

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

BM said that the board’s regulations work well with conventional subdivisions on existing roads, but the regulations do not work well with complex developments such as cluster developments with multiple-owner maintenance-responsibility schemes. The board needs to work on its regulations to address necessary conditions for conditional approvals. The regulations do not give adequate guidance on owners’ agreements, on who is responsible for common land in a cluster development, and on who is responsible for road maintenance.

CW said that the board will have to revisit the issue of what conditional approval means. CW stressed that he is not suggesting to revisit the abandonment decision on AHG. The board needs a better understanding of the existing regulations. The AHG project got into trouble because of a conditional approval with many requirements, which the board just assumed would somehow be satisfied. Then someone told CW that he had to sign the plat and could not discuss the conditions.

JP said that the land-use regulations have many problems but that the board’s biggest problem is that board members ignore the regulations. For example, on conditional approval, JP read from Sklar Realty v. Merrimack and Agway, 125 N.H. 321, 480 A.2d 149 (1984): “there is no approval within the meaning of RSA 36:23 (Supp. 1983) until any conditions precedent have been found to be fulfilled.” How much clearer can the law be? But the board concludes that conditional approval is approval even with unfulfilled conditions precedent. Board members have preconceived notions, someone presents refuting case law, but the board ignores him. The board will continue to have problems as long as it ignores the law and does not read its own regulations. The board tried to impose some order on complex subdivisions by proposing the class V frontage definition last year. What was true then is still true now. The town needs the class V frontage requirement to keep the board of selectmen from promising what they have no right to promise and from committing the town in ways that they should not be committing. The Planning Board in New Hampshire – A Handbook for Local Officials advises not to grant conditional approvals on discretionary conditions precedent because such approvals lead to retrying the application. (Page IV-15.) Board members must know and follow the existing rules and guidelines before the board can move forward.

CW said that the board is at least acknowledging a problem. Pittsfield’s problems are not unique, but the problems are more acute because Pittsfield has an unusual lack of professional expertise. CW agreed with both BM and JP: The regulations do need review and revision, but the board is also ignoring some of the simple regulations, such as on the open space of a cluster development.

JP thanked BM for acknowledging a problem.

CW said that imposing order on the town’s land-use regulations is necessary for the betterment of the town.

BM said that he had been on the boards that approved Stagecoach Station and Bailey Park, and BM was learning that the board had been making mistakes.

AGENDA ITEM 7: Public Input

Carol Lambert asked GL why Matt Monahan had not appeared at the board of selectmen’s meeting on October 30, 2012.

GL said that the selectmen had cancelled that appearance.

Carol Lambert asked why the selectmen had cancelled the appearance.

GL said that the selectmen wanted to wait on the decisions relating to Thompson Road as a class VI highway.

Carol Lambert asked when would Matt Monahan appear and when would the selectmen decide the issues relating to Thompson Road as a class VI highway.

GL said that he did not know.

Carol Lambert thanked BM for admitting past errors.

AGENDA ITEM 8: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of November 1, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of November 1, 2012, is adjourned at 8:07 P.M.

Minutes approved: November 15, 2012

______________________________ _____________________

Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on November 3, 2012, from notes that I made during the planning board meeting on November 1, 2012, and from a copy of the one Town tape that Chairman Clayton Wood made on November 2, 2012.

____________________________________________

Jim Pritchard, planning board recorder and secretary

November 1, 2012 Meeting

one Town tape.