DATE: Thursday, November 15, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:02 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; Clayton Wood (CW), chair; and Peter Dow (PD), alternate.

Members absent: Bill Miskoe (BM) and 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, Pittsfield; Dana Sargent, 11 Thompson Road, Pittsfield; Larry Stockman, 1078 Province Road (Route 107), Gilmanton.

“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 3: Agenda Review

CW asked PD to sit for BM.

CW began the agenda review with a discussion of matters and deadlines that the board would be facing within the next few months.

Daren Greenleaf will apply on December 6, 2012, for site plan approval for a change of a nonresidential use on Route 28.

AHG Properties has an appointment on December 6, 2012.

Steven and Melissa Gendron and Peter and Katherine Treem will apply on December 20, 2012, for a lot-line adjustment.

The zoning board of adjustment (“ZBA”) may want to propose amendments to the zoning ordinance in respect to (1) signs and (2) the definition of “agriculture.” The ZBA chair, Carole Dodge, has done nothing official.

The planning board may receive citizen petitions to amend the zoning ordinance. December 12, 2012, is the deadline to submit citizen petitions to amend the zoning ordinance. (RSA 675:4, I.)

The planning board must hold a hearing on every proposal to amend the zoning ordinance, regardless of the source of the proposal. (RSA 675:3, II, and 675:4, II.)

January 10, 2013, is the last day to give notice of a hearing on a proposed zoning amendment if the board expects to have more than one hearing on that amendment. (RSA 39:1; RSA 675:3, V; RSA 675:7, I; 675:3, IV.)

January 21, 2013, is the last day to have the first hearing on a proposed zoning amendment if the board expects to have more than one hearing on that amendment. (RSA 39:1; RSA 675:3, V; 675:3, IV.)

January 24, 2013, is the last day to give notice of a hearing on the last hearing for a proposed zoning amendment. (RSA 39:1; RSA 675:3, V; RSA 675:4, III; RSA 675:7, I.)

February 4, 2013, is the last day to have any hearing on a proposed zoning amendment. (RSA 39:1; RSA 675:3, V; RSA 675:4, III.)

February 5, 2013, is the last day to submit all proposed zoning amendments to the town clerk. (RSA 39:1; RSA 675:3, V; RSA 675:4, III.)

CW reminded the board that it was not expecting to propose any zoning amendments of the board’s own, but the board would still have to respond to proposals from citizens or from the ZBA.

JP said that the ZBA has no authority to propose zoning amendments. (RSA 675.) Any zoning amendment originating in the ZBA would have to be proposed as a planning board amendment in order to go on the town meeting ballot. JP asked whether the ZBA were going to appear before the planning board and present their proposal. JP said that he had read the ZBA minutes and knew that the ZBA was thinking of asking the planning board to propose something on the ZBA’s behalf, but JP did not know what research the ZBA had done or why the ZBA wanted to propose an amendment.

CW said that he did not have answers to these questions. CW is bringing these issues to the planning board’s attention so that members will have time to prepare.

PH, who is also on the ZBA, said that the ZBA was going to look at zoning regulations from surrounding towns for their regulations of signs. The ZBA has decided nothing yet.

CW said that he would want to help the ZBA if they asked the planning board for a zoning amendment. The current sign regulation is worse than nothing.

CW said that he had nothing to add to tonight’s agenda.

AGENDA ITEM 4: Approval of Minutes of November 1, 2012

PD moved to approve the minutes as written in draft.

GL seconded the motion.

Discussion:

PH asked for the following change:

Agenda Item 6, page 6: change “Thus the four selectmen cannot sit on the planning board.” to “Thus none of the four selectmen can sit on the planning board.”

Vote to approve the minutes of November 1, 2012, with the change that PH requested: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, PD, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 5: CNHRPC Review of Bailey Park Subdivision (Map R3 Lot 7) – Lack of Open-Space Restrictions

CW said that he had distributed to the board the Central New Hampshire Regional Planning Commission’s (“CNHRPC”) review of Bailey Park and its lack of a conservation restriction on the open-space lot. CNHRPC had reached essentially the same conclusion that JP’s report on Bailey Park had reached: without a conservation restriction on the open-space lot, Bailey Park subdivision does not satisfy one of its conditions of approval.

CW said that the board’s task now is to decide how to resolve the open-space-restrictions problem. CNHRPC recommended that the building inspector should withhold building permits and certificates of occupancy until the open-space lot has a conservation restriction.

CW said that the problem was clearly an accident. The board discussed the open-space restrictions but simply neglected to make sure that an open-space restriction was imposed. If there were only one owner, then the problem would be easy to solve. Now there are multiple owners, and some lots have buildings, and getting multiple owners to cooperate complicates matters. CW suggested sending letters to all owners explaining (1) that the town will withhold building permits until the open-space lot has a conservation restriction and (2) that the board will hold a hearing to solicit suggestions on the best way to impose a conservation restriction. CW said that another concern is to divide ownership of the open-space lot for the purpose of assessing taxes.

JP said that it was important to be clear about which condition of approval Bailey Park does not satisfy. CNHRPC had talked about compliance with the zoning ordinance. The condition at issue is actually condition 1 of the subdivision approval. The ZBA approved a special exception, which found satisfaction of all zoning conditions, and that decision is no longer reviewable.

PD asked who is the current owner of the open-space lot.

CW said that the current developer, K & M Developers, owns the open-space lot. K & M Developers acquired the lot from the previous developer, Trigger Development, which went bankrupt. CW said that K & M Developers tried to correct the open-space-restrictions problem in 2010.

JP said that the 2010 proposal was unacceptable because it would have required every property owner to agree to a homeowners association and because it provided for unspecified amendments, which the subdivision regulations do not allow. An acceptable proposal would at least have to eliminate the unspecified-amendments provision. If every property owner wanted to join the association, then that provision would be acceptable.

CW said that the board needs to solicit opinions from all of the owners. The board just wants a conservation restriction and a division of ownership.

CW said that the board should turn its attention to solving the open-space-restrictions problem soon.

PH asked whether the restriction on building permits were the only leverage that the town had.

CW said yes. Theoretically, the board could revoke the subdivision approval, but revocation would serve no one’s interest.

JP said that the building-permits restriction is very strong leverage. This restriction by itself would assure that the open-space lot remains undeveloped.

CW suggested that the board consider revisiting the Bailey Park matter after January, when all zoning matters should be finished.

JP said that the board should give Bailey Park priority and try to begin working on the problem in February. The board has responsibility because the board should not have endorsed the plat when the application had not satisfied all of its conditions of approval.

CW said that Bailey Park showed the importance of making sure that all conditions of approval are satisfied before the board endorses a plat. Both the board and the applicant discussed the open-space restrictions, and both intended to impose a conservation restriction. It simply never happened. Now that Bailey Park has multiple owners and the plat is endorsed, the problem is complicated.

PD asked for clarification of whether the board intends to withhold building permits from lots that currently have buildings.

CW said that the board will not withhold building permits from lots that currently have buildings. The owners of those lots have a vested right to build because they bought and built on their lots in the good-faith belief that they had the right to build.

PD asked whether building inspector Jesse Pacheco knows not to issue building permits.

CW said yes. When the planning board becomes aware of such a problem, the board will try to send the building inspector a letter to help him keep track of the problem. A town planner would help in avoiding such problems in the first place, but Pittsfield has no town planner, which is why the board uses CNHRPC instead.

GL said that the board should notify every owner in the subdivision and should do so as soon as possible.

CW asked JP to help in writing a letter to the owners of Bailey Park.

JP agreed to help write the letter.

JP said that, when he was preparing himself for this agenda item on Bailey Park, he noticed a typographical error on page 3 of his March 3, 2010, report on Bailey Park. The paragraph in the middle of page 3 refers to “Exhibit 7” in two places when the correct reference is “Exhibit 8.” JP asked for permission to correct the error in the town’s copy on file.

The board agreed to the correction.

AGENDA ITEM 6: Letters to the Board

The board received several letters, which are summarized as follows in the order in which the board received them:

1. Laura Spector-Morgan, town attorney (November 2, 2012):

Laura Spector-Morgan’s letter rebuts a letter that JP wrote to the board of selectmen on October 26, 2012, saying that four selectmen—Larry Konopka, Gerard LeDuc, Paul Rogers, and Linda Small—have a disqualifying conflict of interest in judging the AHG case because these four selectmen voted to apply for a driveway permit on behalf of AHG and not on behalf of the town. Laura Spector-Morgan said that the four selectmen are not disqualified because they have no judicial function to perform in the AHG case. Laura Spector-Morgan also said that the four selectmen would not be disqualified if they did have a judicial function, because the selectmen were required to apply for the driveway permit on AHG’s behalf and were not required to undertake a public-interest occasion analysis under RSA 231:8.

2. Jim Pritchard (JP), 125 Governor’s Road, Pittsfield (the first of two letters from JP, November 7, 2012):

The Pritchard letter no. 1 rebuts the letter that the board received from town attorney Laura Spector-Morgan. The Pritchard letter says that at least one of the four selectmen has a judicial function to perform because one of the four selectmen sits on the planning board and another is an alternate. The Pritchard letter also says that the selectmen had neither obligation nor authority to apply for the driveway permit on AHG’s behalf because RSA 231:8 requires a public-interest occasion analysis to alter any existing class VI highway and because the selectmen did no such analysis.

3. Jim Pritchard (JP), 125 Governor’s Road, Pittsfield (November 7, 2012):

The Pritchard letter no. 2 responds to CW’s recent calls for a legal tie between (1) the NH DOT driveway permit for Stagecoach Station, (2) the actual Thompson Road improvement project itself, and (3) AHG Properties. The letter states three reasons why such a tie is impossible:

(1) AHG cannot be the driveway-permit holder because only an abutter may apply for a driveway permit and because AHG does not abut Route 107. RSA 236:13, II.

(2) AHG cannot have charge of the actual construction and maintenance project itself on Thompson Road because Thompson Road is a town highway and because the town highway agent must have charge of any such project on any town highway. RSA 231:62.

(3) The board of selectmen cannot front for AHG in the driveway permit or in the construction and maintenance project itself because there is no public-interest occasion to alter the class VI highway Thompson Road. RSA 231:8.

4. Dana and Royce Sargent, 11 Thompson Road, Pittsfield (November 7, 2012):

The Sargent letter says that the state and only the state may use the state’s drainage easement from Route 107 onto Sargent land. Neither the town nor AHG can lawfully flow water onto Sargent land via the state’s drainage easement unless the Sargents give their permission, which AHG has not sought. The Sargents ask the planning board to withhold final approval of the Stagecoach Station development until AHG has secured a drainage easement from the Sargents.

JP recused himself and sat in the audience.

CW said that he preferred to defer any discussion of AHG matters until after AHG had presented its case to the board. CW said that he wanted to defer discussion of the Sargents’ letter regarding drainage until after AHG had presented its case. CW urged board members to read the Sargent letter as part of their preparation for AHG’s presentation on December 6, 2012.

CW referred to JP’s letter no. 1 saying that four of the selectmen have a conflict of interest. CW said that each the four selectmen will have to decide for himself whether he is disqualified.

CW referred to town attorney Laura Spector-Morgan’s letter. CW said that he was troubled by Laura Spector-Morgan’s statement that, because of the planning board’s conditional approval, the selectmen were “required” to apply for the driveway permit on AHG’s behalf. CW did not understand how or why the selectmen were “required” to apply for the driveway permit. During the planning board’s period of compliance review, town officials are constantly telling CW that the planning board has already approved the road-improvement project. CW does not understand how the planning board forced the selectmen to apply for the driveway permit.

CW referred to Laura Spector-Morgan’s statement that the four selectmen have no judicial functions remaining in the AHG case. CW said that Laura Spector-Morgan omitted to mention that the planning board includes selectmen. CW thought that the planning board proceedings are judicial. If the planning board proceedings are not judicial, then why is JP disqualified?

CW said that the class VI highway issues are under the selectmen’s jurisdiction and that the selectmen must not claim that the planning board is responsible for what the selectmen decide. RSA 231:8 definitely requires a public hearing to alter a highway. CW thought that the Thompson Road improvement project will alter a highway. The selectmen must show that the town is using Thompson Road. The selectmen should at least do their two responsibilities under RSA 674:41, I, (c), (1) and (3): Approve or disapprove the issuance of building permits on this portion of Thompson Road, and approve or disapprove the waiver of road-maintenance liability. CW asked the selectmen’s ex officio member GL whether GL knew when the selectmen would address these two issues.

GL said no.

CW said that the report of the Central New Hampshire Regional Planning Commission (“CNHRPC,” report of September 28, 2012) recommended that the board of selectmen address the issues of RSA 674:41 by way of a public hearing. CW asked GL whether the selectmen intended to follow the recommendations of CNHRPC.

GL said that the board of selectmen had not told him.

CW said that the planning board had done much work on the compliance review but that it was not fair to AHG to have her appear before the planning board when the board of selectmen had not decided whether AHG will have permission to develop on a class VI highway. The selectmen have delayed on this matter since 2007. CW said that Jennifer McCourt had said that the selectmen are waiting for the planning board. CW said that he had asked the selectmen six times to work with the planning board on a class VI highway development policy. The selectmen have always ignored CW. CW said that deciding some of the allegations that the public has raised is not his decision, but the planning board has clear requirements from CNHRPC.

PH suggested that the planning board get on the agenda of a selectmen’s meeting to ask the selectmen what they are doing.

CW said that the selectmen have a representative on the planning board in GL.

PH said that the selectmen are not talking to GL. Perhaps the planning board should confront the board of selectmen directly. If the planning board does not have answers by December 6, then the planning board will look incompetent. The planning board has done its job and is “the only board that’s got to say go.” The zoning board of adjustment and the board of selectmen are delaying the Stagecoach Station project.

CW said that he was not trying to hold anyone up for blame, but the Stagecoach Station project is at a point where the selectmen must act. The CNHRPC report clearly set forth tasks for the selectmen. The planning board supplied AHG with a list of planning board requirements. The board of selectmen must likewise send AHG a list of board of selectmen requirements.

PH said that the selectmen have much business and that the AHG matter will not rise to the top of their priorities unless the planning board pushes the matter.

CW said that he was concerned that the selectmen really believed that the planning board was forcing the selectmen to guarantee the Thompson Road improvement project. This belief is ridiculous, but, if the selectmen have the belief, then the belief makes it imperative that the planning board do its own business absolutely correctly.

PH said that the planning board clearly could not have obligated the board of selectmen. The selectmen’s responsibilities are clear. PH thought that the selectmen must be pushed to make them act.

CW said that the CNHRPC report has set forth three tasks for the selectmen. The selectmen must decide whether to do these three tasks or not.

CW referred to JP’s second letter. CW said that he could not make the decision on the driveway permit. If the board of selectmen think that the planning board has empowered the board of selectmen in relation to anything in the driveway permit, then the selectmen should explain to the planning board. AHG and CNHRPC both understand that there must be a legal tie between the driveway permit, the construction project, and AHG.

CW offered to go to the board of selectmen with GL.

GL said that CW should send an e-mail to town administrator Paul Skowron.

CW agreed to reiterate to Paul Skowron the proceedings of tonight’s meeting.

GL said that the next meeting of the board of selectmen was November 27.

AGENDA ITEM 7: Conditional Approval Process – Planning Board Handbook Summary

JP returned to the board.

CW referred to The Planning Board in New Hampshire – A Handbook for Local Officials, pages IV-18 through IV-22. One might almost think that the authors had the AHG project in mind. A decision of the planning board under RSA 676:4, I, (c), (1), has three possibilities: approval, disapproval, and conditional approval. Conditional approval is not final approval; it is only an extension of the review process. The Handbook also describes conditions precedent and conditions subsequent. The planning board is dealing with conditions precedent in the AHG application. Permits for one thing or another are an example of conditions precedent. If the applicant gets a required permit, and if, in the course of getting that permit, he must change his application, then that change is not automatically approved. When an applicant says that he has satisfied all conditions precedent, the board must have a compliance review (page IV-19). Depending on the changes, the applicant may have to have a public hearing. If anyone is concerned about all of the process that the planning board has applied to AHG, then that person should read the Handbook. The Handbook sets forth these processes.

CW referred to the Handbook’s discussion of posting security for infrastructure improvements. Security is the planning board’s responsibility.

CW urged board members to study this section of the Handbook, pages IV-17 through IV-22. The process that the planning board is applying to AHG is not unreasonable; it is the law.

CW said that the board is in a compliance review, so the board will vote on compliance with conditional-approval conditions. The board could have designated someone, almost anyone, to make the decision, but, because none of the currently sitting board members was present for the AHG conditional approval, all of the currently sitting board members should take responsibility for the decision to approve or not.

CW referred to BM’s November 1, 2012, comments on setting the bond security. CW was trying to keep things simple, but BM had made some good input. CW is willing to meet with the town engineer.

PD asked for an electronic copy of the Handbook.

CW agreed to send an electronic copy to each of the board members.

JP said that he wanted to emphasize CW’s point about conditional approval being just an extension of the review process. JP said that he had looked up “conditional” in the dictionary. “Conditional” means “depending on a condition.” Consequently, there is no approval if the condition is not satisfied. Sklar Realty v. Merrimack and Agway, 125 N.H. 321, 480 A.2d 149 (1984), says the same thing. JP referred to his report on Bailey Park, page 2 (March 3, 2010). Three years ago, JP wrote that Bailey Park was not approved, despite prior conditional approval, because the planning board never found that one of the conditions precedent was satisfied. JP said that both the developer’s attorney and the town attorney had agreed that Bailey Park was not an approved subdivision despite the prior conditional approval, because both attorneys requested approval of the homeowners association and the declaration of covenants.

PH asked for a paper copy of the Handbook.

CW agreed to have a paper copy made for PH.

AGENDA ITEM 8: Class VI Road Jurisdiction, Policy & Issues

CW said that he had put this item on the agenda to remind the board that, as a matter of fairness to property owners, the planning board and the board of selectmen should use the same criteria to decide applications for development on class VI highways.

AGENDA ITEM 9: Selectman’s Report –Gerard LeDuc, Selectman Ex Officio

GL said that the board of selectmen had begun “budget season.”

AGENDA ITEM 10: Members’ Concerns

PD reminded the board that the master plan committee had drafted a town-wide survey. Planning board members should review the survey and tell the master plan committee of any questions or comments.

CW asked PD to distribute the survey to the planning board.

PD agreed.

AGENDA ITEM 11: Public Input

Dana Sargent, 11 Thompson Road, Pittsfield, referred to her letter to the planning board. Dana Sargent is afraid that AHG will try to use the state’s culvert to flow water onto her land. Dana Sargent said that she had read the state’s easement and thought that such use by AHG would not be legal. Dana Sargent and her husband worked hard for their property. The Sargents are not rich. Their property is very wet already; draining more water onto it would not be fair. AHG has not contacted the Sargents to buy an easement or for any other reason. What are AHG’s plans? If AHG wants to use the state culvert, then who will approve that use? The Sargents have a right to protect their property, and they want the planning board’s help.

Larry Stockman, 1078 Province Road (Route 107), Gilmanton, said that he had sold AHG an easement to widen Thompson Road. AHG’s agent, Forrest Sell, approached the Stockmans two days before a planning board meeting in 2006 and asked to buy a 17-foot-wide strip. The Stockmans hired a local attorney, but Larry Stockman now thinks that the attorney was working for AHG, because the attorney “did a number on us.” Two years later, the Stockmans tried to sell their lot abutting Thompson Road, but the lot was unmarketable. Larry Stockman referred to an option to buy something for $1.00. The option extends to 2016, clouds the Stockmans’ title, and cost them the sale of the lot. Larry Stockman asked whether the board of selectmen will build the road or whether AHG will build the road.

GL said that he did not know.

Larry Stockman asked why did GL not know. The selectmen put in the driveway permit that the town had to build the road in order to connect to the state highway.

GL said that he could not answer.

Larry Stockman said that, in 2008, the state said that it wanted an additional southbound lane approaching Stagecoach Station. This additional lane would consume the Stockmans’ whole border on Route 107. AHG said that she would “release the title” if the Stockmans would give AHG more land for the new southbound lane. The Stockmans refused. The Stockmans will give AHG no more property. But, if the selectmen are going to build the road, then they will need the additional land. So who is building the road? Either AHG or the town will have to steal the land from the Stockmans to build the lane that the state wants. AHG is disreputable.

Larry Stockman submitted a letter to the board. In brief summary, the letter says as follows: The Stockmans hope that the planning board will learn from the Stockmans’ mistake in doing business with AHG. The Stockmans sold an easement to AHG to widen Thompson Road, but now the lot is unmarketable. AHG deceived the Stockmans. The Stockmans had a lawyer, but he did not protect them. The planning board should learn that an attorney’s advice does not guarantee protection. The City of Concord had a bad experience with AHG. The AHG project will flow much water onto Sargent land. The planning board should protect the Sargents.

Larry Stockman asked why had the board dismissed the Stockmans’ earlier letter two weeks ago as being not in the planning board’s jurisdiction. The state’s requirements for the intersection of Thompson Road and Route 107 will require more land. Isn’t that matter a matter for the planning board?

CW said, “not the road.”

Larry Stockman repeated that he wanted to know who will build the road. AHG promised to pave his driveway and maintain the culverts. But AHG will dump all of their drainage water onto the Sargent land. The selectmen cannot take the corner of the Stockmans’ land just by applying for a driveway permit. The selectmen refuse to say who will build the road, but they applied for the driveway permit.

Carol Lambert, 83 Governor’s Road, Pittsfield, said that Kathy Bleckmann would have attended tonight’s meeting but was unable to find babysitting.

Carol Lambert said that AHG bought her property from Van Hertel. Van Hertel knew that this property was problematic. AHG landlocked the back lot when AHG created the three lots on Governor’s Road. AHG has never been able to develop the property without taking property from someone else. AHG approached Carol Lambert and her husband, Mike Carden, to buy frontage, but Carol Lambert and Mike Carden refused, and AHG threatened to retaliate. Then AHG mistreated the Stockmans. Now AHG is trying to use Sargent land without permission. AHG proposes to take part of Kathy Bleckmann’s land. AHG cannot do anything without taking someone else’s property. AHG has been bullying people since the beginning. The abutters will attend the selectmen’s meeting and will demand answers.

Larry Stockman said that he will attend the selectmen’s meeting and will demand answers. Who will build the road?

JP, speaking from the audience, said that it was unfortunate that GL cannot explain the driveway permit. GL voted for the driveway permit last March 20. GL’s silence indicates that GL does not know what he voted for or why he voted for it.

JP referred to CW’s comment that CW could not decide the driveway permit. JP understood that the driveway permit has become an awkward matter, especially in light of the conflict-of-interest issues that JP has raised. But the driveway permit is a condition of the subdivision approval. The planning board decides the final approval. Not the zoning board of adjustment, not the board of selectmen, not any other town agency. The planning board will decide whether AHG has satisfied the conditions of approval. Therefore, the planning board must decide whether the driveway permit is legal. Abutters and their property rights are depending on the planning board to make the correct decision. The planning board should not defer to the board of selectmen just because the board of selectmen should have behaved lawfully when they applied for the driveway permit.

Larry Stockman asked JP who was paying for the Thompson Road improvement project.

JP said that the driveway permit says that the town will pay for the Thompson Road improvement project.

Larry Stockman said that AHG had a $1.00 option on Stockman land. AHG should build the road.

AGENDA ITEM 12: Adjournment

JP returned to the board.

PH moved to adjourn the meeting.

PD seconded the motion.

Vote to adjourn the planning board meeting of November 15, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, PD, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of November 15, 2012, is adjourned at 8:22 P.M.

Minutes approved: December 6, 2012

______________________________ _____________________

Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on November 17, 2012, from notes that I made during the planning board meeting on November 15, 2012, and from a copy of the one Town tape that Chairman Clayton Wood made on November 16, 2012.

____________________________________________

Jim Pritchard, planning board recorder and secretary

one Town tape.