October 27, 2005 Minutes

Pittsfield Planning Board
Town Hall, 85 Main Street
Pittsfield, NH 03263
Minutes of Public Meeting
October 27, 2005
Call to Order: Chairman, Larry Konopka called to the meeting to order at 7:02 pm.
Members in Attendance:
Roll Call was taken. Chair, Larry Konopka (LK), Dave Simpson (DS), Ron Vien (RV), Mike Cyr (MC), and Alternates Art Morse (AM) and Eric Bahr (EB) were present. Tom Marston (TM), Bill Miscoe (BM), and Ralph Odell (RD) were absent.
Zoning Board Members Present: Chair, Robert Lincoln (RL), Vice-Chair, Robert Elliot (RE), Ed Vien (EV), Alternates Jesse Pacheco (JP) and Carole Dodge (CD).
(LK) announced that Tom Hitchcock had resigned, leaving the Vice-Chair position open. (LK) motioned to appoint (DS) as Vice-Chair. (EB) 2nd. 5 – 0 in favor with (MC) abstaining.
ITEM 3. Joint Planning Board and Zoning Board Work Session
(LK) discussed the process for the Zoning Changes. The Board would make changes, vote on them, then send them to legal counsel for review. The Board decided to set December 15, 2005 as the date for the first public hearing on the changes. He explained that the Boards would go through each Article and take public input on them.
(LK) ARTICLE 1 – Is there any public input?
Jim Pritchard– Proposes including all of the zoning purposes in RSA 674:17, 674:21 rather than just a short definition because it would help the ZBA and the applicant.
(DS) – reads RSA 674:17 and 21 and asks if cutting and pasting would be appropriate.
Jim Pritchard – Yes, it would be appropriate.
Anton Pritchard – When you impose a regulation, you have to be able to demonstrate that that regulation relates to the purpose of the ordinance. He cited Metzger v. Barrington as an example where the court looked back at the intention and reason for a regulation based on the Zoning Ordinance.
(LK) Closed to the public.
(AM) – I don’t understand the purpose of putting the entire RSA in the Zoning Ordinance. I think it is the responsibility of the Board to understand the Zoning Ordinance.
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(EB) – states that either you include the full list or nothing. A partial list could create a situation where that is all you can enforce.
(RE) – I think it is a good idea to add the reference to the RSAs.
(DS) – 674-17 covers a lot, if we were going to quote anything, it would be that one.
(AM) – The first sentence does this by citing RSA 672-677.
(CD) – put this in as a short list stating that these are examples with reference to land use ordinances.
(RV) – Just have “purpose and authority” and the whole RSA list.
(CD) – Position to the RSA referral to exactly what they pertain to; then you are not limiting yourself.
(EB) – we have ¾ of the examples listed anyway.
(DS) – 674:21 is the one with the examples.
(EB) – discussed what examples are missing and how to word the article.
(EB) and (RE) both suggest having the whole list in.
(RE) – feels that the important things is that the paragraph references RSA 672-677 at the start.
The Board discusses how to word the paragraph.
(MC) – suggests putting a period after “as amended” and ending the section.
(EB) – states that you need to leave the last sentence.
(AM) – wants to leave “health, safety, and general welfare” in the ordinance.
The Board discusses putting all the reasons in or none of the reasons in the ordinance.
(EB) motions to have the section read as follows below, (DS) 2nds.
“IN PURSUANCE OF AUTHORITY CONFERRED BY CHAPTERS 672-677, NEW HAMPSHIRE REVISED STATUES ANNOTATED 1986 AS AMENDED AND FOR THE PURPOSES ESTABLISHED IN RSA 674:17, THE FOLLOWING ORDINANCE IS HEREBY ENACTED BY THE VOTERS OF THE TOWN OF PITTSFIELD, NEW HAMPSHIRE IN OFFICIAL MEETING CONVENED.”
Vote passes 4-2, (RV) and (AM) opposed.
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ARTICLE 2, Zoning Districts and ARTICLE 3 Definitions.
Jim Pritchard – On ARTICLE 2, I would suggest rephrasing the first five paragraphs relating to the zoning districts as purposes to clearly show what the spirit of the ordinance was, citing maintaining rural character as an example of a purpose. They use this technique in Manchester. He suggested language to be added in the application of the dimensional requirements and that the parking requirements to ARTICLE 16. In ARTICLE 3, he felt that some definitions were needed that led to a definition of ‘frontage’ such as a ‘front lot line.’ The Board also needed to determine what caliber road was needed for frontage. His final suggestion was that language be included stating that if a term was not defined in the ordinance, then the Webster’s 3rd New International Unabridged Dictionary would be used to determine the definition.
(LK) – Closed to the public.
(MC) – thought that the Board should cover the definitions before working on the Table of Uses. He suggested concentrating on the major issues because he thought the Board had a list of changes they were going to go over.
(TA) – went over his proposed changes to the Table of Uses regarding Adult Business Establishments, In-law Apartments, and Nursing, Convalescent, and Rest Homes. He then went over his definition revisions/addition. (See Attachment A).
The Board discussed the definition of Nursing/Convalescent Home and decided to use the second definition proposed by (TA).
John Lenaerts – raised a concern about Nursing/Convalescent Homes being allowed by Special Exception in the Urban, Suburban, and Rural Zones.
(TA) – stated that the he did not change what was currently in the table of uses, he was just trying to put a definition back in the ordinance.
(MC) – Susan Muenzinger had the disk and we all saw how the definition was there and when you printed it the page was cropped.
The Boards discuss taking Nursing/Convalescent homes out of the Rural Zone. (MC) proposed making it a permitted use in the Urban Zone and left as a Special Exception in the Rural and Suburban Zones.
Jim Pritchard – I spoke with Helen Schoppmeyer about this issue and she made the same point that John did, that the home could have two people or a hundred. Under those circumstances, you would not want to make this a permitted use. I would hope that you would not make this a permitted use in any district because you could easily come up with a project that would not belong there.
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(CD) – Agrees that rural is not adequate, it will need to be close to health care etc. She stated that the definition of Nursing Home needed to be changed.
The Board discussed a different definition of Nursing Home.
(RE) – If we change the Zoning table for Nursing and Convalescent Homes, we might want to allow it on Route 28.
(LK) – Closed to the public. Light Industrial/Commercial sounds good to him; he agrees that it should not be in the rural zone.
(MC) – You don’t know what land controls will be, so you can leave it off and they can come in for a variance if necessary.
The Board discusses which zones to allow Nursing and Convalescent Homes in before agreeing on allowing them by Special Exception in the Urban, Suburban, and Light Industrial/ Commercial Zones.
(EB) – Motioned to propose that Nursing/Convalescent Homes be allowed in the Urban, Suburban, and Light Industrial/Commercial Zones by Special Exception. Motion passed, all in favor.
(RV) – Stated that the Adult Business Ordinance was Article 21 not 20.
(DS) – motioned to accept the new and revised definitions as presented for ACCESSORY USE/BUILDING, ADULT BUSINESS ESTABLISHMENT, ADULT HOUSING, IN-LAW APARTMENTS, MULTI-FAMILY DWELLING, NURSING, CONVALESCENT FACILITY, and SENIOR HOUSING.
(MC) – 2nd.
(EV) – Are you using our title for Nursing Homes or Belmont’s?
(TA) – using the Belmont title.
VOTE – 6-0
(RE) – Suggested that Nursery/Day Care be an allowed use in the Commercial District.
8:40PM Break is taken
The Board returns to Article 1.
(LK) asked to have the motion reread, which Donna did as shown below:
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“IN PURSUANCE OF AUTHORITY CONFERRED BY CHAPTERS 672-677, NEW HAMPSHIRE REVISED STATUES ANNOTATED 1986 AS AMENDED AND FOR THE PURPOSES ESTABLISHED IN RSA 674:17, THE FOLLOWING ORDINANCE IS HEREBY ENACTED BY THE VOTERS OF THE TOWN OF PITTSFIELD, NEW HAMPSHIRE IN OFFICIAL MEETING CONVENED.”
(RE) – Suggested “IN PURSUANCE OF AUTHORITY AND PURPOSES….”
(EB) – “IN PURSUANCE OF THE AUTHORITY AND PURPOSES…… CONFERRED BY CHAPTERS 672-677, NEW HAMPSHIRE REVISED STATUES ANNOTATED 1986 AS AMENDED AND FOR THE PURPOSES ESTABLISHED IN RSA 674:17, THE FOLLOWING ORDINANCE IS HEREBY ENACTED BY THE VOTERS OF THE TOWN OF PITTSFIELD, NEW HAMPSHIRE IN OFFICIAL MEETING CONVENED.”
The Planning Board thought that this was the way to proceed.
(TA) – brought up the need for a definition of “frontage,” which he had given the Board a list of options to review.
(DS) – Liked the definition of “frontage” proposed by the Pritchards.
(LK) – The Planning Board can allow frontage on Class VI Roads with Selectboard approval. The developer has to sign off that they understood that the Town would not start maintaining them.
Jim Pritchard – RSA 674 sets minimum standards and supersedes anything that is less strict. Municipality can permit frontage on a Class VI Road if they choose (Trottier v. Lebanon). Frontage used in zoning is Class V. The discussion was on permitting subdivisions as lots that are already subdivided would be grandfathered. He read from “NH PRACTICE ROADS BOOK” by Peter J. Loughlin, Esq.
Anton Pritchard – This pertains to new subdivisions only. He discussed that if you allow building on Class VI Roads, these roads are not upgraded and maintained by the Town.
(RV) – The way I read it, frontage is classifying a highway.
(RE) – Mr. Pritchard is presupposing that a subdivision is many houses – if it is two or three lots, this would preclude people from doing them as well. We have in place the ability to regulate them by the Planning Board. We are taking people’s land rights away. The Town should allow subdivision on Class VI and rights of way.
(RL) – Epsom does not allow building on Class VI Roads.
John Lenaerts – spoke about Town roads and in favor of having frontage apply to Class V Roads only.
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(DS) – was not in favor of allowing frontage on a right of way, but he could accept Class VI Roads.
(MC) – I have 36 acres and can’t develop them because I have a right of way.
(RE) – Maybe you can’t do a subdivision. To stop someone from building a house on a right of way or splitting it into two, this would do that.
(LK) – Do you want to table this for more research?
(EB) – stated that there was just a difference of opinion and he did not believe that someone should be able to build on rights of way and Class VI Roads.
(LK) – When this came up last year, the Road Agent said a lot of people pay taxes on land off of Class VI Roads and would like to retire there.
(TA) – clarified that someone bringing a road up to Class V standards did not mean that the road then became a Class V Road. The Town would still have to take it over.
(RE) – Private roads are also in this; they could be maintained by private owners.
(DS) – He cited Shingle Mill Brook Road as an example of a private road.
(RE) – I respect the differing opinions, we have different points of view. We should find out what does our town want to do.
(EV) – Suggests giving people two options at Town Meeting.
(AM) – Put it either way, not simply a yes or no vote and explain the choice in a statement.
(EB) – asked if you could currently build on a Class VI Road.
John Lenaerts – You cannot subdivide on a Class VI Road.
(RE) – stated that his road was a private road.
(TA) – stated that there was nothing in the Zoning Ordinance precluding development on a Class VI Road.
Discussion of what to send to Town Meeting as a question.
(AM) – suggested putting out a flyer to help people understand what is going on prior to the Town Meeting.
(LK) – agreed that it was a good idea.
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(EB) – We still have to have the language. We have to propose the opposite because defeating it would protect the status quo.
(TA) – explained that the Planning Board did not have to use the opposite definition that the current definition because there is not a ‘frontage’ definition in the Zoning Ordinance. He continued that the Board would be putting something in the Zoning Ordinance; currently the only definition was in the Subdivision Regulations, which could be waived by the Planning Board.
(LK) – What is the minimum impact, to follow what we have been doing now?
(TA) – Suggests using the Amherst definition of frontage.
(MC) – Start with the basic definition as outlined in the RSA.
(LK) – Reads RSA 674:24, ‘frontage’ means a portion of a lot bordering on a highway, street, or right of way.
(MC) – felt that that was the place to start then the Planning Board could add what they want to it.
(LK) – Suggests adopting the RSA definition this year and working on the definition next year.
(EB) – wonders how that would help the Town.
Jim Pritchard – stated that RSA 674:24 was just a temporary definition and should not be used.
(AM) – We need to decide if we want to allow people to build on Class VI Roads and Rights of Way or not.
(RE) – There are three questions: Right of Way, Class VI, and Private Roads.
(CD) – You need a frontage definition and to decide what someone has to do to build on a Right of Way, a Private Road, or a Class VI Road. You should deal with frontage tonight.
(RE) – As a compromise, why don’t we get someone from the Planning Board to look at the Subdivision Regulations and come up with a definition and return with it to the Board.
John Lenaerts – Subdivision Regulations have a frontage definition, but now we need a Zoning Ordinance definition. The Subdivision Regulations define it as Class V or better.
(DS) – read the definition in the Subdivision Regulations.
(EB) – reads RSA 229:5, which says that a Class VI Road is unmaintained and not an official town road. 7
(AM) – Apparently the Town may own a public way, but it would not necessarily be a Town road.
The Board discusses what to use as frontage.
(DS) – motioned to adopt the definition of frontage as proposed by the Pritchards: “FRONTAGE:
(a) The word “FRONTAGE” means Class V or better highway FRONTAGE unless the word “FRONTAGE” is qualified otherwise, for example, water frontage.
(b) The Class V or better highway FRONTAGE of a LOT means the single, continuous line segment in the FRONT STREET LINE of the LOT across which segment there is the principal access route into the LOT, and in which segment each point is a boundary point of a Class V (RSA 229:5, VI) or better highway, and at the endpoints of which segment each endpoint is either a FRONT STREET LINE endpoint or a point where the Class V or better status of the front STREET ends.
(c) The Class V or better highway FRONTAGE of the LOT also means the extent of the segment defined in (b).”
(EB) – 2nd.
The Board discussed the different frontage usages mentioned in the definition.
Jim Pritchard – Shoreline Protection Ordinance covers water frontage. The definition was modeled after one presented last year by Kerrie Diers from CNHRPC.
(LK) – asked (TA) for his opinion.
(TA) – It’s ok to approve and send to legal counsel for review.
(LK) – So people could still build and subdivide with this definition?
(TA) – Yes, they would need a Variance like they do now.
(AM) – Like I said before, I will vote for this to put it out there for legal review and the make changes as needed.
(RV) – You can get people to vote a certain way depending on how you write the article.
(EV) – So if you write it as do you want Class VI, Private Roads, and Rights of Way to be built on, then the voters will vote on that.
(JP) – On a Class VI Road, you are asking for a right of way.
(DS) – I want this to be clear, I don’t want to hide something from the voters.
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(LK) – I like (AM)’s idea, yes or no, simple.
Vote – 3 to 3 Tie, motion fails.
(TA) – suggests waiting until the Board has seven members to vote again.
Discussion of how to proceed next.
(EB) – What if we move to send the definition to counsel to see if the basis is good?
Donna Keeley suggests giving the definition to counsel to review it and the issue about type of access.
(EB) – I am fine with going to the voters. I don’t think that if you define the question as Class VI, you are not asking the voters anything new.
(AM) – suggests concluding the meeting.
(LK) – asks what people think of having three acre minimum lots.
Board members and audience members give their opinions on the idea.
Jim Pritchard – asks when the 3-acre zoning issue will be decided.
(RV) – What are the abutting towns doing?
(AM) – When the Zoning Ordinance was first put together, Frank Hillsgrove asked him is he knew how much work it was to take care of five acres.
(TA) – What night do you want to take up Variances and the Growth Management Ordinance?
The Board set November 10, 2005 as the date for the next work session on Zoning Changes at 7:30PM.
MEMBERS CONCERNS:
(LK) stepped down.
(DS) – stated that the Selectboard received a pole license for FHS on Hilltop Drive. Donna Keeley thought this was supposed to be underground utilities. He reviewed the plan and could not find anything on the plan. Town’s regulations state that all utilities should be underground. The Town Attorney says that we cannot enforce it unless it was a condition of approval. The plan does not show underground utilities. The RSAs do not allow revocation if the regulations are not followed. It can only be done if the conditions are not followed.
(AM) – What is the purpose of regulations if you have to list every condition? 9
The Board decided that someone would have to listen to the meeting tapes from when the project was approved.
(DS) – DUNKIN’ DONUTS was supposed to put blanks in the lights facing Kaime Road. The Town will check with the builder and have this addressed.
(MC) – On the application checklist there is a section for type of utilities.
(LK) returned to the Board.
(MC) motioned to adjourn.
(RV) 2nd.
All in favor.
Meeting adjourned at 10:45PM.
Respectfully,
Donna Keeley
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