November 20, 2014 Minutes

These minutes were posted by the Planning.

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

DATE: Thursday, November 20, 2014

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the joint meeting of the planning board and the zoning board of adjustment (ZBA) to order at 7:04 P.M.

AGENDA ITEM 2: Roll Call

Planning board members present:
Clayton Wood, planning board member and chair;
Pat Heffernan, planning board member and vice-chair;
Jim Pritchard, planning board member and secretary;
Bill Miskoe, planning board member; and
Larry Konopka, selectmen’s ex officio planning board member.

Planning board members absent:
Roland Carter, alternate planning board member, and
Gerard LeDuc, alternate for the selectmen’s ex officio planning board member.

ZBA members present:
Carole Dodge, ZBA member and chair;
Pat Heffernan, ZBA member and vice-chair;
Scott Aubertin, ZBA member;
Denis Beaudoin, ZBA member; and
Al Douglas, alternate ZBA member.

ZBA members absent:
Paul Metcalf, ZBA member.

Other town officials present: Jesse Pacheco, building inspector.

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

“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: Review the Proposed Changes to the Zoning Ordinance, Article 3, Definitions

Bill Miskoe objected to reviewing proposed changes to zoning ordinance article 3, Definitions. Bill Miskoe said that the planning board had voted “to abandon work on definitions.” (The actual motion that the planning board adopted was “to abandon the definitions project.” Planning board minutes of November 6, 2014, agenda item 6.) Bill Miskoe said that “abandon means stop, quit, leave, get in the lifeboats and boogey; it doesn’t mean come back to it two weeks later.”

Jim Pritchard agreed with Bill Miskoe and said that the planning board should stand behind its vote to abandon the definitions project.

Bill Miskoe said that the planning board should get input from the master plan committee, the economic development committee, the ZBA, the board of selectmen, and the code enforcement officer about what the zoning ordinance should have in it.

Clayton Wood disagreed with Bill Miskoe and cited the deliberation before the vote to abandon the definitions project. (That deliberation included discussion of putting Jesse Pacheco in charge of the definitions project.) Clayton Wood said that he did not want to go to all the committees that Bill Miskoe listed. Clayton Wood cited the matter of combined dwelling and business as a matter requiring attention.

Larry Konopka said that the planning board had abandoned the proposal that the board had been reviewing and had asked Jesse Pacheco to consult with the town administrator (Mike Williams) and department heads for matters necessary this year. Larry Konopka said that the planning board should work on the rules of procedure.

Pat Heffernan moved the two boards to listen to Jesse Pacheco’s proposals.

Carole Dodge seconded the motion.

Discussion:

Jesse Pacheco listed seven zoning matters:
1. The definition of “accessory use/building.”
2. The definition of “church.”
3. The definition and regulation of “home occupation.”
4. The definition of “junk yards.”
5. The definition and regulation of “combined dwelling and business.”
6. Zoning ordinance article 9, Signs.
7. Zoning district boundaries.

Jesse Pacheco had specific proposals on (1) zoning ordinance article 9, Signs, and (2) the definition of “junk yards.”

Jesse Pacheco cited current article 9, Signs, of the zoning ordinance:

“Signs of whatever size and material shall be a permitted accessory use in the Commercial and Light Industrial/Commercial districts of the Town and on the premises of businesses or permitted industry in other districts, provided that any such signs do not constitute a nuisance, in the opinion of the Zoning Board of Adjustment, by emitting an unreasonable amount of light or noise and are compatible with the surrounding area.”

Jesse Pacheco proposed deleting the phrase “in the opinion of the Zoning Board of Adjustment.” Jesse Pacheco said that the phrase “in the opinion of the Zoning Board of Adjustment” was problematic because the phrase forced commercial-sign users to seek the ZBA’s permission, with all expense that a noticed hearing before the ZBA involves.

Jesse Pacheco said that he did not want to read all of the definitions in article 3 and correct all of them now. Jesse Pacheco acknowledged that “we do need to fix these things.” Jesse Pacheco thought that regulations of defined uses should be in a separate article of the zoning ordinance and not in article 3, Definitions.

Bill Miskoe asked how would the new article 9 be enforced.

Jesse Pacheco explained that the proposed change (deleting the phrase “in the opinion of the Zoning Board of Adjustment”) would empower him (the code enforcement officer, Jesse Pacheco) to decide whether a sign constitutes a nuisance by emitting an unreasonable amount of light or noise and whether the sign is compatible with the surrounding area. A person challenging Jesse Pacheco’s decision would file an administrative appeal to the ZBA. (RSA 674:33, I, (a).)

Clayton Wood asked why does article 9, Signs, currently exist if not to involve the ZBA? The permitting conditions for commercial signs are very vague.

Bill Miskoe noted that the town meeting had rejected a comprehensive sign ordinance years ago (in March 1999).

The two boards agreed that the proposed change would empower the code enforcement officer (Jesse Pacheco) to decide whether a sign constitutes a nuisance by emitting an unreasonable amount of light or noise and whether the sign is compatible with the surrounding area.

Carole Dodge said that, “with the shortness of time,” Jesse Pacheco’s proposal would “take some of the pressure off.”

Jim Pritchard said that all that Jesse Pacheco was proposing was to take the enforcement of vague conditions out of the ZBA’s hands and put that same enforcement of vague conditions in Jesse Pacheco’s hands. The sign ordinance (article 9) will remain vague. Jim Pritchard said that he favored repeal of article 9 in whole because the permitting conditions are very vague.

Larry Konopka opposed repealing article 9. Larry Konopka favored putting Jesse Pacheco in charge of deciding what signs are appropriate. Larry Konopka noted that people who do not like Jesse Pacheco’s decisions can appeal Jesse Pacheco’s decisions to the ZBA.

Pat Heffernan agreed with Larry Konopka. Pat Heffernan said that the process works well.

Jesse Pacheco said that there had been no problems until Jim Pritchard had pointed out the phrase “in the opinion of the Zoning Board of Adjustment.”

Bill Miskoe said that repealing article 9 would be consistent with the town’s vote in 1999 to reject the comprehensive sign ordinance.

Jim Pritchard agreed with Bill Miskoe.

Jesse Pacheco said that the planning board could propose repealing article 9 but that then “18-foot by 30-foot sign[s]” would be permitted.

Bill Miskoe said that he was not proposing the repeal of article 9 or that the town should have no sign ordinance.

Jim Pritchard said that he does not like vague permitting conditions and that permitting conditions do not get much vaguer than “compatible with the surrounding area” or “emitting an unreasonable amount of light or noise.” Jim Pritchard said that he preferred no regulation over a regulation so vague that the code enforcement officer could treat one person one way and another person another way.

Pat Heffernan said that he preferred to empower Jesse Pacheco to decide what signs are appropriate under article 9. People who do not like Jesse Pacheco’s decision can appeal to the ZBA, and the ZBA will decide the appropriateness of the signs.

Carole Dodge agreed with Pat Heffernan.

The consensus of the two boards was to propose deleting the phrase “in the opinion of the Zoning Board of Adjustment” and to propose this change as an amendment. Jim Pritchard specifically was against this change.

Jesse Pacheco cited the current definition of “junk yards”:

JUNK YARDS: A legally licensed facility for the storage of junk as defined in RSA 236:91,II, III, IV, and RSA 236:112, I, III, IV and V (c).

Jesse Pacheco said that the phrase “legally licensed” was problematic because a facility that otherwise met the definition of “junk yards” but that was not legally licensed could not be regulated as a junk yards.

Clayton Wood asked about the affect of the state junk yard law (RSA 236:111 through RSA 236:129, Motor Vehicle Recycling Yards and Junk Yards, including RSA 236:124, Effect of Local Ordinances; and RSA 236:90 through RSA 236:110, Control of Junk Yards and Automotive Recycling Yards.)

Jesse Pacheco explained that, for junk yards, the local zoning ordinance supersedes the state junk yard law. (RSA 236:124, Effect of Local Ordinances: “Specific local ordinances shall control when in conflict with this subdivision.”)

Jim Pritchard said that he did not understand Jesse Pacheco’s problem. Jim Pritchard read from the ZBA minutes of November 13, 2014, stating Jesse Pacheco’s opinion that an unlicensed junk yard may have an unlimited number of cars. Jim Pritchard asked, “is that true?”

Jesse Pacheco said, “How else would I regulate it?”

Jim Pritchard noted that uses not listed in zoning ordinance article 2, table 1, are prohibited; see the definition of “permitted use”:

“Uses that are not expressly stated as permitted uses, accessory uses, or special exceptions are prohibited.”

Jesse Pacheco agreed.

Jim Pritchard said that an unlicensed junk yard would not fit any of the uses listed in article 2, table 1. Thus, Jim Pritchard said, an unlicensed junk yard would not be permitted anywhere in town, just the same as legally licensed junk yards are not permitted anywhere in town. (Zoning ordinance article 2, table 1.)

Jesse Pacheco asked how did the zoning ordinance junk yard regulation apply to existing junk yards in Pittsfield.

Jim Pritchard said that all of the existing junk yards have been found to be grandfathered as preexisting uses and thus are exempt from the zoning ordinance (RSA 674:19).

Bill Miskoe asked whether a town could prohibit a given use in all districts.

Jim Pritchard said that some uses, such as sexually oriented businesses, have First Amendment protection and must be permitted somewhere, but not all uses have such protection. Jim Pritchard said that the town can prohibit junk yards in all districts.

Carole Dodge objected on a point of order that the joint meeting should be discussing the effect of “legally licensed” in the definition of “junk yards.”

Clayton Wood overruled Carole Dodge’s objection and said that the current discussion was about the effect of “legally licensed” in the definition of “junk yards.”

Clayton Wood said that he did not understand Jesse Pacheco’s concern with “legally licensed.”

Larry Konopka asked for confirmation that Jesse Pacheco was just recommending to remove “legally licensed” from the definition of “junk yards.”

Jesse Pacheco said, “that’s my recommendation.” Jesse Pacheco suggested annotating the definition with a citation of RSA 236:112.

Bill Miskoe read RSA 236:114: “A person shall not operate, establish … until he … has obtained a license…” Bill Miskoe said, “so, the state says you have to obtain a license.”

Carole Dodge said, “But they’re using our definition as a loophole to get past that. That’s why we’re asking to remove that verbiage.”

Jesse Pacheco agreed with Carole Dodge. “It’s given them a loophole, as you say, to turn around and be able to do this. So any, just think about this: Any business that’s downtown that’s doing anything with automobiles, they can have as many unregistered vehicles as they want.”

Jim Pritchard said that he recommended against Jesse Pacheco’s suggestion to remove “legally licensed” from the current definition of “junk yards.” Jim Pritchard said that the change might have unexpected and unintended consequences.

Clayton Wood said that he did not believe that a mechanic could just have as many cars as he wants and say that he is working on those cars. The mechanic would have to show that he is working on the cars.

Jesse Pacheco said that he had received a complaint and that he had responded to the property owner under complaint. Jesse Pacheco said that the property owner’s lawyer had called Jesse Pacheco and had said that the property owner was not violating the junk yards prohibition because the property was not a “legally licensed” junk yard.

Jim Pritchard said that the complaint that Jesse Pacheco had cited had not depended on whether the facility was legally licensed but rather had depended on whether the facility was, in fact, a junk yard.

Bill Miskoe said that he likes to restore antique cars and that he keeps a small number of vehicles for parts. Bill Miskoe was concerned that the new definition would bring him under junk yard regulation.

The consensus of the two boards was to propose deleting “legally licensed” from the current definition of “junk yards.” Jim Pritchard and Bill Miskoe were against this change.

Jesse Pacheco mentioned accessory uses but did not discuss the topic or propose anything on it.

Jesse Pacheco referred to the current definition of “combined dwelling and business”:

COMBINED DWELLING AND BUSINESS: A building in which is combined dwelling units and business uses.

Jesse Pacheco had no specific proposal for this definition, but he did speak conceptually. Jesse Pacheco stated his opinion that “the intent, I think, in the town was to have regulated and have businesses downstairs and apartments upstairs. So by saying a combined dwelling in a business, you’re telling it can be in any shape, manner, or form: side by side, front to back, upside down, inside out. So I think that that would lead to a definition.”

Bill Miskoe asked what is the problem with such flexibility? Why can a combined dwelling and business not be side by side?

Jesse Pacheco stated his belief that such flexibility was not the original intent of the zoning ordinance when the town adopted the zoning ordinance (in 1988).

Clayton Wood said that most people in town government except Bill Miskoe want a regulation requiring apartments in the Commercial District to be on the second or higher story of the building.

Bill Miskoe said that economics will drive how businesses and apartments are arranged in a combined dwelling and business.

Jim Pritchard said that Jesse Pacheco had discussed apartments above the ground floor conceptually, but Jim Pritchard said that he had not heard a specific proposal.

Clayton Wood and Jesse Pacheco continued the conceptual discussion. Clayton Wood said, “I’m not asking you to write it right now.”

Larry Konopka asked whether Jesse Pacheco and town administrator Mike Williams could make a proposal.

Jesse Pacheco said yes.

Bill Miskoe asked why could a building not have a business in the front and an apartment in the back?

Jesse Pacheco said that no buildings in the Commercial District could accommodate such an arrangement.

Jesse Pacheco said that he wanted the record to be clear that he “wanted to fix a couple of ordinances” and that he had not written the comprehensive revision of article 3 that the planning board had voted to abandon.

Jim Pritchard agreed with Jesse Pacheco and said that he, Jim Pritchard, had written the comprehensive revision that the planning board had voted to abandon.

Larry Konopka asked whether Jesse Pacheco had anything to say about airports.

Jesse Pacheco referred to Jim Pritchard’s proposed definition of “airport” (which was among the definitions that the planning board voted to abandon):

AIRPORT: “AIRPORT” means a public or private place used for takeoff or landing of aircraft other than balloons, kites, kite balloons, ultralights, and unmanned aircraft with wingspan of 9 feet or less.

Jesse Pacheco said that Jim Pritchard’s definition would prohibit use of balloons, kites, kite balloons, ultralights, and unmanned aircraft with wingspan of 9 feet or less.

Clayton Wood reminded Jesse Pacheco that the planning board had abandoned Jim Pritchard’s definition of “airport.”

Jim Pritchard said that Jesse Pacheco was mistaken about Jim Pritchard’s definition of “airport.” The definition would not prohibit the listed small aircraft but would instead exempt such small aircraft from airport regulations. Jim Pritchard pointed out that, under the current definition:

AIRPORT/HELIPAD: An area used for landing and/or takeoff of motorized and/or non-motorized aircraft.

very small aircraft are regulated the same as full-sized, manned aircraft. Jim Pritchard said that his definition would exempt very small aircraft from the regulations applicable to full-sized aircraft.

Vote to listen to Jesse Pacheco’s proposals: carried 9 – 0 – 0. (Voting “yes”: Jim Pritchard, Scott Aubertin, Pat Heffernan, Clayton Wood, Bill Miskoe, Denis Beaudoin, Carole Dodge, Larry Konopka, and Al Douglas. Voting “no”: none. Abstaining: none.)

Clayton Wood moved to listen to Carole Dodge.

Pat Heffernan seconded the motion.

Discussion: None.

Vote to listen to Carole Dodge: carried 9 – 0 – 0. (Voting “yes”: Jim Pritchard, Scott Aubertin, Pat Heffernan, Clayton Wood, Bill Miskoe, Denis Beaudoin, Carole Dodge, Larry Konopka, and Al Douglas. Voting “no”: none. Abstaining: none.)

Carole Dodge cited the current definition of “church”:

“CHURCH: A place of worship either indoors or outside, including a parish house and rectory.”

Carole Dodge said that this definition is overly broad. Any home can be a place of worship. She cited Wikipedia and dictionary definitions that she had found:

“Public place of worship.”

“Building used for public worship.”

“Building used for public worship or the services held there.”

Carole Dodge specifically rejected the definition of “church” that Jim Pritchard had proposed:

CHURCH: “CHURCH” means a place where worship of any religion is a PRINCIPAL USE.

Carole Dodge emphasized that a church must be for public worship.

Clayton Wood asked whether the town had had any problems with churches.

Jesse Pacheco said no, the definition of “church” was just a definition that he wanted to change.

Carole Dodge referred to the matter of home occupations and said that the definition should be its own little entity.

Clayton Wood asked whether the current definition of “home occupation” were giving any problem.

Carole Dodge cited an application earlier this year for a variance from the number of employees allowed in a home occupation. Carole Dodge discussed regulations from other municipalities that regulate home occupations more strictly than Pittsfield does, such as allowing “only one owner-occupied user of the home occupation” or limiting the amount of the home that the home occupation may use.

Scott Aubertin agreed with restrictions such as Carole Dodge was discussing. “That would create less problems. It just lowers the amount of people.”

Jim Pritchard was against restrictions such as Carole Dodge was discussing. Jim Pritchard said, “I think the common law makes pretty clear, and I think it’s a sensible thing, that you should be able to do pretty much what you want to do so long as you are not hurting the residential character of the neighborhood. That’s what my definition was focused on. I realize that we have abandoned that, but I do hope that we’re not going to get into this business of telling people what they can do within a sphere that’s affecting nobody else.”

Bill Miskoe agreed with Jim Pritchard’s regulatory concept but said that Jim Pritchard should have organized his definition and permitting conditions differently.

Jim Pritchard disagreed with Bill Miskoe’s suggestion for alternative organization.

Clayton Wood said that home occupations are not subject to site plan review.

Carole Dodge referred to the zoning district lines and “getting those correct.”

Clayton Wood said that the planning board would need a whole year to figure out where the zoning-district boundaries should be. Clayton Wood said that he was concerned about the town forcing district-boundary changes on a small group of property owners.

Carole Dodge cited article 2 describing the Suburban District. The description in part says,

“This district is now, or may be in the foreseeable future, serviced by municipal sewer and the Pittsfield Aqueduct Company.”

Carole Dodge thought that this description meant that the Suburban District should be where and only where the town has municipal water and sewerage.

Jim Pritchard disagreed with Carole Dodge’s interpretation of the description of the Suburban District. Jim Pritchard cited article 2, table 2, Dimensional Regulations, which has not changed since the zoning ordinance was adopted in 1988, and which establishes lot sizes in the Suburban District based on whether a lot has or does not have municipal water and sewerage.

Carole Dodge suggested deleting the current definition of “airport”:

“AIRPORT/HELIPAD: An area used for landing and/or takeoff of motorized and/or non-motorized aircraft.”

Clayton Wood said that ultralights should be allowed as accessory uses and should not be subject to airport regulation.

Jim Pritchard said that his regulation had intended to allow ultralights as accessory uses.

The consensus of the two boards was to do nothing with the current definition of “airport.”

Carole Dodge summarized the matters that should be put in writing for proposal as zoning amendment:
Article 9, Signs
Definition of “junk yards”
Definition and regulation of “combined dwelling and business”
Definition of “church”
Definition of “accessory use/building”

Larry Konopka asked whether the planning board would review the minutes of November 6, 2014.

Clayton Wood said that he would schedule that review for the planning board’s next meeting, on December 4, 2014.

Larry Konopka said that he had concerns with the draft minutes of November 6, 2014.

Jim Pritchard asked Larry Konopka to state his concerns so that Jim Pritchard could review the audio recording.

Larry Konopka said that he did not know where to start. Larry Konopka did start by asking Jim Pritchard how did Jim Pritchard know that the town administrator left the meeting in anger.

Jim Pritchard said that he had been at the meeting and had witnessed the town administrator’s behavior.

AGENDA ITEM 4: Adjournment

Bill Miskoe moved to adjourn the joint meeting.

Pat Heffernan seconded the motion.

Vote to adjourn the joint meeting of November 20, 2014: carried 9 – 0 – 0. (Voting “yes”: Jim Pritchard, Scott Aubertin, Pat Heffernan, Clayton Wood, Bill Miskoe, Denis Beaudoin, Carole Dodge, Larry Konopka, and Al Douglas. Voting “no”: none. Abstaining: none.) The joint meeting of the planning board and the ZBA of November 20, 2014, is adjourned at 8:25 P.M.

Minutes approved: May 7, 2015

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on November 26, 2014, from notes that I made during the planning board meeting on November 20, 2014, and from a copy that Chairman Clayton Wood made on November 24, 2014, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary