October 2, 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, October 2, 2014

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:04 P.M.

AGENDA ITEM 2: Roll Call

Planning board members present:
Clayton Wood (CW), planning board member and chair;
Pat Heffernan (PH), planning board member and vice-chair;
Jim Pritchard (JP), planning board member and secretary;
Bill Miskoe (BM), planning board member;
Roland Carter (RC), alternate planning board member; and
Gerard LeDuc (GL), selectmen’s ex officio alternate planning board member.

Planning board members absent:
Eric Nilsson (EN), selectmen’s ex officio planning board member.

Other town officials present: None.

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: Agenda Review

CW said that the planning board’s administrative secretary, Dee Fritz, had prepared a new list of planning board members and their contact information. CW asked board members to check the information for accuracy. CW noted that the expiration date of 2015 given for RC’s term is wrong. The correct expiration date is 2017.

AGENDA ITEM 4: Approval of the Minutes of the September 18, 2014 Meeting and the September 27, 2014, all-boards meeting

BM moved to approve the minutes of September 18, 2014, as written in draft.

CW seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

Vote to approve the minutes of September 18, 2014, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: GL.)

After tonight’s meeting, recording secretary JP noticed that the draft minutes of September 18, 2014, state the date as September 4, 2014, in the statement of the vote to adjourn the meeting. JP corrected this error.

BM moved to approve the minutes of September 27, 2014, as written in draft.

PH seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

Vote to approve the minutes of September 27, 2014, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: GL.)

AGENDA ITEM 5: Application by Keath & Patricia Wood, 275 Shaw Road, Pittsfield NH 03263 for a Major Subdivision on the same parcel of land (Tax Map R3, Lot 5-5) to create three (3) Residential Lots in a RURAL Zone.
1. Review for completeness and acceptance by the board – continued from the September 4, 2014 meeting
2. Public hearing if the application is accepted by the board
3. Application review based on merit

CW said that the Woods’ agent, Paul Zuzgo, had told CW that he is working on a deed and a road plan and that he wants an extension of time to submit the information. CW said that he had told Paul Zuzgo that the board would continue the completeness review to the board’s regular meeting on November 6, 2014, but that Paul Zuzgo would have to submit his materials no later than two weeks from today, October 2, 2014, in order for the board to act on the materials on November 6, 2014.

AGENDA ITEM 6: Review – Proposed Changes to the Subdivision Regulations

CW referred to a letter that Matt Monahan, the planner from Central New Hampshire Regional Planning Commission (CNHRPC), had written reviewing the draft subdivision regulations dated September 3, 2014. CW said that he had also asked Matt to research the requirements for (1) connecting surveys to the United States Geological Survey elevation benchmark and the state plane coordinate system, and (2) showing lines of topography at 2-foot intervals. CW said that he had met with Matt Monahan at CNHRPC, that he had sent Matt Monahan a copy of the draft subdivision regulations, and that he had asked Matt Monahan to comment on the concerns that JP had raised and to make any suggestions that Matt Monahan might think helpful.

CW referred to the concern that BM had expressed on September 18, 2014, namely, that referring to procedures for processing site plans might not be appropriate in the subdivision regulations. CW referred to RSA 676:4, I, (a), which says that the procedures for all plats shall be as stated in the subdivision regulations unless the planning board specifies different procedures for a different type of plat:

“An application for approval filed with the planning board under this title, other than an application for subdivision approval, shall be subject to the minimum requirements set forth in this section and shall be governed by the procedures set forth in the subdivision regulations, unless the planning board by regulation specifies other procedures for that type of application.”

CW said that, in view of RSA 676:4, I, (a), the references to site plans should remain at least for now so that the board will be sure to have the same processing regulations for site plans and subdivision regulations.

JP said that he wanted to review Matt Monahan’s letter of review and discuss Matt Monahan’s comments.

Planning board concern, draft subdivisions regulations page 11: The purpose statement will be revised.

Matt Monahan’s response:

Ok.

Planning board concern, draft subdivisions regulations page 13: What is the planning board’s authority to prohibit acts in anticipation of a subdivision?

Matt Monahan’s response:

Section 1 .J: We are not sure the origin of this section though other subdivision regulations in other communities may contain language with similar intent. It was part of the 2005 edition. As far as where the RSA authority comes from, CNHRPC does not know of a specific RSA that authorizes this. It could be several taken together, possibly RSA 674:36.II and III – at least the portions dealing with “hard” infrastructure. LGC or Town Counsel may be able to provide a citation. Another option would be to clarify that the section deals with construction, per the proposed application, before approvals. One area to focus on is the title of the section. Perhaps changing from “Pre-approval Construction Prohibited” to “Construction of Plan Components Prior to Construction Prohibited” – or something similar – could clarify that the intent is to deal with those improvements that are part of a pending application cannot be started until approval is granted.

Planning board’s discussion:

JP said that Matt’s reasoning might have some validity but that RSA 674:35, I, specifically enables the planning board to prohibit before subdivision approval (1) constructing any street to service a proposed or intended subdivision and (2) installing any utilities to service a proposed or intended subdivision.

CW said that a reason to prohibit some of the other acts—cutting trees or vegetation; removing stumps, topsoil, or other materials; burying stumps, topsoil, or other yielding material; or leveling or otherwise changing the grade of the land—might be that doing these acts might make the plan submitted for subdivision approval inaccurate. CW said that he wanted to get guidance from the New Hampshire Municipal Association (NHMA).

BM said that the board cannot prohibit an applicant from doing as he pleases on his land if the plan accurately reflects the conditions on the land at the time of application.

JP said that asking the NHMA for guidance was a good idea but that he, JP, often disagreed with NHMA and that he would not follow NHMA guidance blindly. JP repeated his belief that RSA 674:35, I, enables the board to prohibit building streets or installing utilities for an intended subdivision. JP said that Matt Monahan’s reasoning was interesting and that JP wanted to know whether NHMA could cite any case law supporting Matt Monahan. JP said that he would probably agree with BM if NHMA could not cite any case law supporting Matt Monahan. JP noted that the prohibitions on some of the specified acts are practically unenforceable because the acts are lawful when the property owner does not intend to subdivide. A timber harvest is an example.

BM said that a property owner can build streets or install utilities without the board’s approval.

Planning board concern, draft subdivisions regulations pages 18 and 21: Why do we need definitions of “developer” and “subdivider” and how do these people differ from the applicant?

Matt Monahan’s response:

These definitions stem from the 2005 edition. CNHRPC recommends keeping a definition for “applicant” and including “developer” and “subdivider” within that definition.

Planning board’s discussion:

JP said that Matt Monahan’s response had not answered the board’s original question but that the response had raised new questions of why do the regulations need to define “applicant,” and what is the difference between a developer applicant and a subdivider applicant.

CW said that the terms “developer” and “subdivider” appeared to be superfluous, that the term “applicant” appeared to need no definition, and that “applicant” could replace “developer” and “subdivider” wherever “developer” or “applicant” appeared in the subdivision regulations. CW said that he was not certain who was eligible to be an applicant.

JP said that he thought that there was case law on who could apply for subdivision approval.

Planning board concern, draft subdivisions regulations page 30: “Comment: Items 1 and 2 are fine except that item 2 should cite RSA 676:4, I, (e), (2).” See page 44, Fees, D, (1) and (4) for the statement of these items.

Matt Monahan’s response:

We agree.

Planning board concern, draft subdivisions regulations page 31: “Comment: This condition [on the ownership and maintenance of open space in a cluster subdivision] will remain.” See page 55 for this condition.

Matt Monahan’s response:

We agree.

Planning board concern, draft subdivisions regulations page 35: Number (3), top of page, provides for design review with Matt Monahan and the building inspector or with the planning board. The board needs to decide whether it wants only one of these design review processes or both. My preference is that all design review should be before the planning board.

Matt Monahan’s response:

Regarding the sew Section 4, Preliminary Review:

a. There seems to be a blending of the planner’s review and the design review/conceptual consultation process (called “preliminary review in RSA 676:4.II). The planner’s review is a separate entity from the two preliminary reviews. Preliminary Consultation is governed by RSA 676:4.II a and Design Review by RSA 676:4.II.b. The conceptual does not require abutter notice while the design review does require notice based upon the level of design of the plan shown to the board. RSA 676:4.II.c indicates that preliminary review is separate from formal review.

In contrast, the third-party review is part of a formal application process and is not triggered at the request of the applicant like the preliminary reviews. The planner’s review is a third party review (governed by RSA 676:4-b.I and RSA 673:16.I and II) that is undertaken in the presence of the applicant per the regulations (though the Building Inspector and Planning Board Chair also attend). It is not a preliminary review per RSA 676:4.II.

Planning board’s discussion:

JP said that Matt Monahan’s statement that “The planner’s review is a separate entity from the two preliminary reviews” suggests that the board cannot require a planner’s review in preliminary review.

JP said that he disagreed with Matt Monahan’s statement that the current planner’s review is not preliminary review. JP said that the current planner’s review is preliminary review because the applicant submits an application to the board, Matt Monahan reviews it and suggests changes, and the applicant makes changes, so the application that Matt Monahan reviews differs from and is thus preliminary to the application that the board receives for the completeness review.

CW said that Matt Monahan had said that he had not intended that the planner’s review should replace preliminary review before the board.

Matt Monahan’s response regarding page 35 continued:

To recap:

– RSA 676:4.II allows for two types of “preliminary review” (preliminary consultation and design review):

· RSA 676:4.II.a outlines “preliminary consultation” and does not require abutter notice.

· RSA 676:4.II.b outlines “design review” and does require abutter notice

· RSA 676:4.II.c stipulates that both preliminary reviews are separate from formal application

– RSA 676:4-b.I allows the Planning Board to use a third party reviewer when reviewing applications.

– RSA 673:16.I also allows the Planning Board to contract with various consultants to assist with the approval process.

– The planner’s review is, therefore, separate from preliminary review as it is a third-party review done in the presence of the Applicant.

There are other ways to set up the third-party planner’s review. Some possible options in addition to the current process include:

1. The Board asks for a formal review, as needed, of an official application once submitted; or,

2. The planner’s review is done for every application but not in the presence of the applicant.

b. Did the Board want to make one of the preliminary reviews mandatory and require that all subdivisions or site plans (or at least major subdivisions and site plans) come in to the Board for a preliminary review before formal application? CNHRPC would recommend doing so. Note: this change would first require Town Meeting authorization (see RSA 674:35.I).

c. Another thing to consider is what is required for a “preliminary consultation” vs. a “design review” as RSA 676:4.II states that the Board needs to define the difference between the two and what required for submittal by regulation. There are several examples from other communities that could be provided if that would be helpful to the board.

Planning board’s discussion:

The board agreed that it would offer two phases of preliminary review: (1) conceptual consultation and (2) design review. The board agreed that design review would be optional. The board agreed that all applications for design review would come before the board and not before a pre-approval consultant. The board agreed that the board could use the pre-approval consultant, usually Matt Monahan, to advise the board during design review. The board discussed that the proposed use of the pre-approval consultant would be similar to the current use except that the applicant would make his changes and submit them to the board in an open meeting. The board discussed that this preliminary review process would not cost applicants any more for the pre-approval consultant than the current process costs, because the proposed regulations say that the pre-approval consultant shall not duplicate in formal review an evaluation that the pre-approval consultant did in design review. See draft subdivision regulations section 6, A, (3):

“The building inspector and the pre-approval consultant do not have to evaluate the technical merits of an application that is essentially the same as one that they evaluated previously as an application for design review.”

Planning board concern, draft subdivisions regulations page 36: For contents of subdivision applications, I am relying heavily on Bill Miskoe’s expertise. We may want to seek Matt Monahan’s suggestions too.

Matt Monahan’s response:

Bill’s additions look good. Although there is a general set of items a Board should require, additional items should be based on what a Board has seen and what materials they have previously wanted from applicants but not received. It should be based on the Board’s experience and preferences. That said, this is a good list of items.

Planning board concern, draft subdivisions regulations page 36: “Comment: ‘all necessary escrow amounts,’ which comes word for word from Matt Monahan’s 2010 revision, seems vague.” What are all necessary escrow amounts?

Matt Monahan’s response:

Section 5.A: “necessary escrow amounts” was used as each project will likely have a different escrow requirement. Although we are currently using a standardized estimate that can be found in the fee chart, the actual escrow amount can vary based on the size, scope and complexity of the application. This language, as opposed to citing a specific amount, allows for that flexibility, if needed.

Planning board’s discussion:

CW said that the board should try to itemize at least some of the items for which the board will require escrow money.

Planning board concern, draft subdivisions regulations pages 37 and 39: “Comment: What is an ‘on the ground’ boundary survey and why is ‘on the ground’ in quotes?”

Matt Monahan’s response:

Section 5.B: Not sure where “on the ground” came from as it was in the 2005 version. Removal of the phrase would be fine.

Planning board’s discussion:

JP said that he was concerned about what would happen if a surveyor copied information from another surveyor and if someone during formal review challenged the copied information. JP wanted to know how would the board hold the applicant accountable for information gathered by a person not involved with the application before the board.

BM said that a licensed surveyor is responsible for the information that he presents, whether he generated the information himself or whether he copied it from another surveyor.

Planning board concern, draft subdivisions regulations page 38 and 39: “Comment: Why should the error of closure exceed something? Usually we want errors to be LESS than some threshold, not greater.”

Matt Monahan’s response:

Section 5.B.10.b Also in the 2005 edition, should read “shall not exceed”

Planning board concern, draft subdivisions regulations page 41: Number (34) at the top of the page: What is the citation, if any, for the requirement for “a professional engineer licensed in the State of New Hampshire”

Matt Monahan’s response:

CNHRPC does not know of any specific RSA that requires a PE stamp for engineering work submitted to the Planning Board, but, it seems that a collective reading of RSA 310-A (regarding Professional Engineer certification), RSA 674:36.I (regarding the purpose of the Subdivision Regulations) and RSA 674:44 (regarding Site Plan Regulations) may provide the authority:

– RSA 310-A:2.II states, among other things that a “Professional Engineer” is someone who is technically and legally qualified to practice engineering.
– RSA 31 0-A:2.III states that, among other things, the “Practice of Engineering” is creative work for planning and design of projects wherein the public welfare or safeguarding of life, health, or property is concerned.
– RSA 674:36.II.j allows for the Planning Board to include provisions in the Subdivision Regulations which will tend to create conditions favorable to health, safety, convenience or prosperity.
– RSA 674:44.II.a allow for the Site Plan Regulations to adopt provisions to prevent injury to health, safety or prosperity for a variety of design/construction items.
– Taken together, it seems that the provisions in RSA 310-A state that in order to practice engineering – including design – one must be a professional engineer, and, one of the reasons for this is public health and safety. Secondly, the RSAs pertaining to the Site Plan and Subdivision Regulations allow the Planning Board to include provisions to ensure public health and safety. Therefore, we think that it is a reading of these RSAs together that give the Planning Board the authority to ask for the PE stamp. We are not attorneys and would also suggest that the Board may also want to consult the Local Government Center or the Town Attorney for further clarification.

Planning board’s discussion:

BM said that state law requires that anyone calling himself an engineer for any public purpose must be licensed as an engineer. BM said that he would try to find the state law citation. BM said that the regulation should delete “if applicable.”

Planning board concern, draft subdivisions regulations page 41: Number (34), (a): “All plans shall be made with existing topography shown in dashed lines and proposed contours shown in solid lines at a contour interval no greater than 2 feet” comes from the current regulations section 9, D, 1, (page 30): “All plans shall be made with existing topography shown in dashed lines and proposed contours shown in solid lines at a contour interval no greater than two (2) feet” This requirement for lines of topography at 2-foot intervals apparently supersedes any less-restrictive requirement for lines of topography shown at 5-foot intervals. (RSA 676:14.)

Matt Monahan’s response:

Yes, though an applicant could still request a waiver (or partial waiver) for five-foot topo if the parcel warrants.

Planning board’s discussion:

BM presented research that he had done on what survey requirements are appropriate for a subdivision application. BM’s research says as follows on what requirements are appropriate for lines of topography:

“There are places where precise topography is needed – wetland modification areas, on-site disposal system design and other drainage construction. … For the purposes of subdivision review five, or even ten foot contour intervals will be adequate. Site plan review may require [more] detailed topography, but only if drainage issues exist.”

Planning board concern, draft subdivisions regulations page 43: Number C, (4)—“Evidence that an occasion under RSA 231:8 will exist for the town to accept roads that the subdivision application dedicates to public use”—should have support from Hersh v. Plonski.

Matt Monahan’s response:

We agree.

Planning board’s discussion:

JP said that, in addition, the regulation should cite Gallagher v. Windham, 121 N.H. 156, 427 A.2d 37 (1981) (“We recognize that at the time of the site plan approval by the planning board the proposed access to the industrial park was not a public road. We conclude, however, that it was legal and reasonable for the planning board to approve the plans which included a proposed public road.”) and Morin v. Somersworth, 131 N.H. 253, 551 A.2d 527 (1988) (“Neither Gallagher nor Sklar Realty, however, stands for the proposition that a planning board must approve a proposed road in site plan review simply because it has the power to give conditional approval to a proposal. Where, as here, the site plan does not comply with the express terms of the zoning ordinance, the planning board need not approve it.”).) JP said that these two cases established the planning board’s authority to count or not count a road dedicated to public use toward class V highway frontage depending on whether the board has good reason to think that the town will accept the road dedicated to public use as a class V highway. JP said that Hersh v. Plonski, 156 N.H. 511, 938 A.2d 98 (2007), explains that the purpose of the acceptance requirement is to protect the town from highway-maintenance burdens that outweigh the public benefit of the highway maintenance.

Planning board concern, draft subdivisions regulations page 43: Number C, (7)—“In certain instances the subdivision or site plan shall provide soil maps and information in accordance with Site Specific Soil Maps for New Hampshire and Vermont SSSNNE Special Publication No. 3, June 1997”—is vague. What are the instances when the board will require this information?

Matt Monahan’s response:

Section 5.C.7: not sure about the origins of this section (also from 2005 edition) but it seems to lay out the authority for the Board to ask for HISS soil mapping. This is not uncommon but it should be clarified as to when the “certain instances” are (such as a major subdivision or proposed lots of a certain size using septic and wells).

Planning board’s discussion:

BM said that this regulation for soil mapping is unnecessary because, for lots under 5 acres, the state will require the soil mapping for the state’s septic-system approval under RSA 485-A:29 and because, for lots 5 acres and over, all an applicant needs to do is show that he could put a septic system somewhere.

The board agreed to eliminate the requirement for soil mapping.

Planning board concern, draft subdivisions regulations page 48: Number (7) gives the chair alone the responsibility of recording the approved plat, but the current regulations allow either the chair of the secretary. What is the board’s pleasure?

Matt Monahan’s response:

We agree; it would be the preference of the Board.

Planning board’s discussion:

CW said that he wanted both the chair and the secretary to be able to record approved plats. CW said that it was important that a board member be responsible for this task.

BM said that a person that the chair designates should be able to record approved plats if both the chair and the secretary are unavailable to record a plat.

The board agreed that the chair, the secretary, or the chair’s designee if both the chair and the secretary are unavailable to record a plat will be able to record approved plats.

Planning board concern, draft subdivisions regulations page 48: Section 7, Performance bond. This section needs revision so that it gives more practical guidance in how to specify performance security.

Matt Monahan’s response:

Sample language could be included in an appendix.

Planning board’s discussion:

BM said that his research during the Stagecoach Station project had indicated that performance bonding was the best security.

JP said that he had heard that letters of credit are the best security.

The board agreed that section 7 for construction security will require research and is a project for the future.

Planning board concern, draft subdivisions regulations page 51: Section 8, A, Abandonment. The board found by reasoning that I do not understand that the Stagecoach Station application was not abandoned. The board needs to explain its reasoning according to established rules of statutory construction, or the board needs to admit an error in interpreting section 8, A. This analysis is necessary because, if Stagecoach Station was not abandoned, then we need to figure out what the problem in section 8, A, was so that we can correct it. Currently, other than a need for some minor wordsmithing, I see no problem in section 8, A.

Matt Monahan’s response:

For this question CNHRPC recommends seeking the guidance of the Town Attorney. Although, it may be desirable to have, as a standard condition of approval, a timeframe by which all conditions of approval are to be met. Failure to complete conditions in the timeframe could result in abandonment though it would be fair to build in a process by which the applicant could ask for extensions.

Planning board’s discussion:

CW said that, under the law (RSA 676:4, I, (c), (1)), the planning board cannot prolong a formal review to one year unless the applicant agrees to extend the board’s statutory deadline of 65 days to one year. CW thought that the board had interpreted subdivision regulations section 8, A, 2, mistakenly in the Stagecoach Station project. CW said that no conditionally approved application should be open for more than a year.

JP said that the abandonment condition does not have to be in the board’s decision itself because compliance with the subdivision regulations is an implied condition of every approval.

CW said that he was recommending that the board tell applicants of the abandonment condition at the same time when the board tells applications of the appeal process of RSA 677:15, I.

JP said that telling applicants of the abandonment rule would be a good idea, but the question before the board now is whether subdivision regulations section 8, A, 2, defines abandonment properly.

CW said that section 8, A, 2, does define abandonment properly, that the board had agreed that Stagecoach Station was abandoned under section 8, A, 2, and that the board had reversed itself only on the advice of then town attorney Laura Spector-Morgan.

JP reviewed the conditions in section 8, A, 2, as they applied to Stagecoach Station:

1. “An application submitted to the Board which is found to be a Completed Application layout”

JP said that the Stagecoach Station application had been found to be complete because a finding of completeness is necessary before the board can proceed to the merits of the application. (RSA 676:4, I, (c), (1).)

2. “for which appropriate extensions of time have been granted by the Board in which to take final action”

JP said that the board had granted appropriate extensions of time, that is, the board had granted no extension of time in which to take final action, because AHG had not asked for any extension in which to take final action.

3. “shall be deemed to have been abandoned by the applicant if a final plat has not been submitted within twelve (12) months of the date at which the Board acted to find the application complete.”

JP said that AHG had not submitted the final plat within 12 months of the date at which the board acted find the application complete. Therefore, the board should have found that the application was abandoned.

CW repeated that section 8, A, 2, defines abandonment properly.

BM suggested that the regulation require the board to notify the applicant of impending abandonment.

JP said that the regulation itself is considered notice under New Hampshire common law. JP said that diverting from the common law could lead to unpredictable results. JP said that BM’s notice proposal is a question separate from whether section 8, A, 2, defines abandonment properly.

CW said that the abandonment regulation must stand on its own and that the decision on completeness activates the statutory deadlines (RSA 676:4, I, (c), (1)).

JP said that the activation of statutory deadlines was probably why the regulation had been written to refer to the date when the board accepted the application as complete.

CW suggested starting the abandonment time period when the board gives conditional approval.

JP said that he was inclined to let the abandonment time period remain starting with the finding of completeness, because this point in time is so well defined. JP said that he wanted to study this question more. JP said that a conditional approval under RSA 676:4, I, (c), (1), establishes a deadline to appeal to superior court, so the date of a conditional approval may be sufficiently well defined.

GL suggested getting advice from the NHMA on which board action—completeness acceptance or conditional approval—is more appropriate to start the abandonment time period.

JP said that advice from the NHMA might be appropriate but that the board had made a fundamental error in interpreting section 8, A, 2, on the advice of an attorney.

Planning board concern, draft subdivisions regulations page 63: Number (3): What does “Their own driveway shall access all proposed lots” mean?

Matt Monahan’s response:

Not sure the origin of this but it existed in the 2005 version. The Board should remove it if it is confusing or not useful.

Additional CNHRPC Comments

1. Section 1 .E (page 11): looks good; The Board may want to just cross-reference with the items listed in RSA 674:36.II to make sure everything is included. This allows future boards to include any provisions that the RSA authorizes.

2. Section 1.N (pages 14 – 15): First, there are two section “N’s” and the sections (N. Five-Year Exemption and N. Penalty Clause) should be redesigned. Second, under the Five-Year Exemption it may be helpful to define what “substantially complete” means. Towns have defined this in terms of percentage built, for example. A specific threshold can help with the implementation piece of this clause.

Planning board’s discussion:

JP said that the regulations cannot define “substantially complete” because AWL Power v. Rochester, 148 N.H. 603, 813 A.2d 517 (2002), which the draft regulations cite, precludes such a definition in the regulations. Instead, each approval decision must define “substantially complete” under RSA 674:39 for the given project. JP read from H. Bernard Waugh’s treatise GRANDFATHERED – The Law of Nonconforming Uses and Vested Rights, 2009 edition, page 16:

The latest and best case on how much investment it takes to obtain vested rights is AWL Power, Inc. v. City of Rochester, 148 N.H. 603 (2002). AWL got approval in 1987 for 18 homes and 59 condo units. It had built 70% of the roads and utilities (only 10% of the total project) in 1990 when the market went south. Ten years later, ordinances had changed, and the planning board revoked the approval

The Court emphasized that the rationale for vested rights is that a developer has spent money in good faith reliance on the absence of restrictions (again, good-faith investment-backed expectations). It said “substantial construction” could not mean the same thing as “substantial completion” (the term used in RSA 674:39, the 4-year Exemption), but instead only requires a substantial beginning on the project:

“The correct standard for “substantial construction” vesting considers not only construction measured against the entire plan, but also whether the amount of completed construction is per se substantial in amount, value or worth.”

Important: The Court said this “per se substantial” standard does also apply to the 4-year Exemption statute. Therefore the language of “substantial completion” in that statute cannot be applied literally, but must instead be read consistent with the AWL Power case.

* * * * * End of excerpt from GRANDFATHERED.

Additional CNHRPC Comments continued

3. Section 2.B: A few comments:

a. The current definition for “completed application” is adequate; is there replacement language that the Board would prefer (page 18)?

Planning board’s discussion:

JP said that the current definition of “completed application” is bad. The current definition says as follows:

Completed Application: Shall include the final plan application and the specification for documents to be submitted as detailed in Section 5.

This definition is bad because a completed application does not necessarily include the final plan application. Completed applications that the board conditionally approves will frequently not include the final plan application. (Sklar Realty v. Merrimack, 125 N.H. 321, 480 A.2d 149 (1984).) Removing “final plan application” leaves the definition saying that a completed application means an application that contains the materials listed in section 5. Section 5, A, in part says, “The following materials and information shall constitute a completed application sufficient to invoke the board’s jurisdiction to consider approval:” Therefore, a separate definition of “completed application” is superfluous.

Additional CNHRPC Comments continued

b. For “lot line adjustment” a bit more might be needed based upon what the Board would feel is a reasonable design. For example, guidance on maintaining the number of lots before and after approval as well as configuration could be added (page 19).

Planning board’s discussion:

JP said that he did not understand Matt Monahan’s point. A lot line adjustment is simply the relocation of a lot line.

Additional CNHRPC Comments continued

4. Section 5 (pages 38 – 43): Sub-sections D and C are out of order.

5. Section 6.B.1 (page 45): asks for materials to be submitted 15 days or more in advance of the meeting; CNHRPC recommends that it should be 25 or 28 days to allow for adequate review time. RSA 676:4.I.b states that an applicant shall file its application at least 15 days in advance of the meeting while 676:4.I.c states that the board shall review for completeness no later than 30 days. This suggests that there is a window of not less than 15 but not more than 30 for the board to consider if it is complete or not. That said, a 25 or 28 day submittal requirement would fit and would allow for adequate review time.

Planning board’s discussion:

JP said that RSA 676:4, I, (c), does not say that the board shall review for completeness no later than 30 days. RSA 676:4, I, (c), (1), says as follows:

“The board shall, at the next regular meeting or within 30 days following the delivery of the application, for which notice can be given in accordance with the requirements of subparagraph (b), determine if a submitted application is complete according to the board’s regulation and shall vote upon its acceptance.”

Thus “the next regular meeting … for which notice can be given in accordance with the requirements of subparagraph (b)” is an alternative to 30 days. The Planning Board in New Hampshire, a Handbook for Local Officials, 2013 edition, page IV-5, says as follows (emphasis added):

“An application must be filed with the planning board at least 15 days before the meeting at which it is to be submitted.

. . .

“Once filed, the planning board must determine if an application is complete before moving on to the merits of the development proposal. The completeness determination must be made within 30 days following delivery of the application, or at the next regular meeting for which legal notice can be given.”

* * * * * End of excerpt from the Planning Board Handbook, 2013 edition, page IV-5.

JP said that the model forms in appendix B of the Planning Board Handbook say that subdivision and site plan applications will be reviewed for completeness at a regular meeting of the planning board. The Pittsfield Planning Board’s subdivision regulations of 2005 say, “The completed application shall be formally submitted to and accepted by the Board only at a regularly scheduled public meeting after due notification to applicant, abutters, and the general public of the date the completed application will be submitted and received by the Board.” (Subdivision regulations of 2005, section 5, E, 2 (page 18).) The (current) subdivision regulations of 2010 maintain this requirement for completeness review at a regular meeting. The proposed regulation simply continues the board’s practice, and it does so in agreement with RSA 676:4, I, (b); RSA 676:4, I, (c), (1); and the Planning Board Handbook.

Additional CNHRPC Comments continued

6. Section 10.D (page 61): these provisions existed in the 2005 edition but in general, sequencing should refer to the construction sequence notes associated with the detail sheets of a plan; design calculations should be provided for any proposal that depicts drainage structures on the plan; reference to “any other information deemed necessary and appropriate by the Planning Board or its designated agent” gives the Board the authority to ask for additional items/studies the regulations did not anticipate.

Planning board’s discussion:

JP said that ordinances can be impermissibly vague and that, when they are, they do not give the board lawful authority to do anything. (Grayned v. Rockford, 408 U.S. 104 (1972).)

CW said that the board should know what it wants.

Additional CNHRPC Comments continued

7. General Comment: It may be desirable to ask for digital copies of all application materials. Also, it may be beneficial to ask for scans of final signed plans as well.

AGENDA ITEM 7: Review – Proposed Zoning Ordinance Amendment New Definitions Proposed for Article 3, Definitions

The board did not do this agenda item because the review of the draft subdivision regulations lasted until 9:00 PM.

CW said that he wanted to devote the board’s next meeting to the revised definitions list for the zoning ordinance.

JP said that the board was running out of time to have a proposal ready for the town meeting next March.

BM agreed with JP.

AGENDA ITEM 8: Selectman’s Report – Eric Nilsson, Selectman Ex Officio – Gerard LeDuc, Alternate

The board did not do this agenda item because the review of the draft subdivision regulations lasted until 9:00 PM.

AGENDA ITEM 9: Members’ Concerns

The board did not do this agenda item because the review of the draft subdivision regulations lasted until 9:00 PM.

AGENDA ITEM 10: Public Input

No public input. No members of the public were present.

AGENDA ITEM 11: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of October 2, 2014: carried 5 – 0 – 0. (Voting “yes”: JP, PH, CW, BM, and GL. Voting “no”: none. Abstaining: none.) The planning board meeting of October 2, 2014, is adjourned at 9:02 P.M.

Minutes approved: October 16, 2014

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on October 4, 2014, from notes that I made during the planning board meeting on October 2, 2014, and from a copy that Chairman Clayton Wood made on October 3, 2014, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary