October 3, 2013 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 3, 2013

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; and
Bill Miskoe (BM), planning board member.

Planning board members absent:
Eric Nilsson (EN), selectmen’s ex officio planning board member;
Peter Dow (PD), alternate planning board member; and
Larry Konopka (LK), selectmen’s ex officio alternate planning board member.

Other town officials present: Carole Dodge, chair of the zoning board of adjustment.

Members of the public appearing before the planning board:
Larry Federhen, 18 Range Road, Pittsfield, NH, and
Mitch Emerson, 50 Range Road, Pittsfield, NH.

“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 Town of Hopkinton had given the board notice that Cingular Wireless PCS would build a wireless telecommunications tower in Hopkinton.

CW said that the NH Department of Transportation had given the board notice that the NH DOT would begin work on aligning the left turn lanes on NH Route 107 at the intersection of NH Route 107 and NH Route 28.

CW said that the board would discuss these two matters briefly after the board finished agenda item 6, proposed zoning amendments.

AGENDA ITEM 4: Approval of Minutes of the September 5, 2013 Meeting

BM moved to approve the minutes of September 5, 2013, 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 5, 2013, as written in draft: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 5: Subdivision Application – Lot Line Adjustment
Leslie M. Federhen Trust, Tax Map R-2, Lot 6 and Tax Map R-3, Lot 4 located at 18 Range RD within the RURAL Zone District.
The purpose of the proposal is to adjust the lot lines between two parcels, transferring 0.841 acres from Lot 6 to Lot 4.
1. Review for completeness and acceptance by the board
2. Public hearing if the application is accepted by the board
3. Application review

CW told Larry Federhen, administrator of the Leslie M. Federhen Trust, that one of the board members is absent and that the board’s policy is to offer every applicant the benefit of a full board. The board can continue the meeting to a later date.

Larry Federhen said that he did not object to the partial board.

Determination of regional impact:

JP moved the board to find that the Federhen lot line adjustment is not a development of regional impact. (See RSA 36:56, I.)

BM seconded the motion.

Discussion:

PH said that the Federhen lot line adjustment has no regional impact.

Vote that the Federhen lot line adjustment is not a development of regional impact: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

Determination of completeness:

CW said that the applicant had requested four waivers of subdivision regulations. The waiver requests and their reasons as stated in the applicant’s attorney’s letter of August 22, 2013, are as follows:

1. Subdivision regulations sections 5, B, 2, b, 6, and 5, B, 2, b, 1 [5, C, 2, b, 1, and 6, B, 3]: Wetlands – Delineated and stamped by a certified wetlands scientist – We are requesting a waiver from the requirement for the wetland to be delineated and stamped by a certified wetland scientist on all of the properties. Rationale: There are no wetlands on the parcel to be annexed and no new lots are being created.

2. Subdivision regulations sections 10, F, 1, a, and 5, B, 2, b, 2 [5, C, 2, b, 2; 6, B, 2; and 10, F, 1, a]: Boundary survey – We are requesting a waiver from the requirement to show a complete boundary of lot 6. Rationale: Parcel A and lot 4 have been surveyed and the remaining portion of lot 6 had a boundary plan done in 2001, recorded as plan no. 15645. A copy of the recorded plan can be provided if requested.

3. Subdivision regulations section 5, B, 2, b, 5 [5, C, 2, b, 5, and 6, B, 16]: Topographic information. Rationale: Parcel A is relatively level and is not a separate building lot and the topography does not affect this lot line adjustment.

4. Subdivision regulations sections 5, B, 2, 6, and 6, C, 2 [6, C, 2]: Tie to USGS and state plane system. Rationale: In order to tie into these references, a large amount of survey work would be needed and this is a very minor lot line adjustment application.

JP moved the board to grant the requested waiver of the requirement for wetlands delineation for the reason that the applicant’s attorney gave in his letter of August 22, 2013. (“There are no wetlands on the parcel to be annexed and no new lots are being created.”)

PH seconded the motion.

Discussion: None.

Vote to grant the requested waiver of the requirement for wetlands delineation for the reason that the applicant’s attorney gave in his letter of August 22, 2013 (“There are no wetlands on the parcel to be annexed and no new lots are being created.”): carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

JP moved the board to grant the requested waiver of the requirement for a full boundary survey of tax map R2, lot 6, for the reason that the applicant’s attorney gave in his letter of August 22, 2013. (“Parcel A and lot 4 have been surveyed and the remaining portion of lot 6 had a boundary plan done in 2001, recorded as plan no. 15645. A copy of the recorded plan can be provided if requested.”)

BM seconded the motion.

Discussion: None.

Vote to grant the requested waiver of the requirement for a full boundary survey of tax map R2, lot 6, for the reason that the applicant’s attorney gave in his letter of August 22, 2013. (“Parcel A and lot 4 have been surveyed and the remaining portion of lot 6 had a boundary plan done in 2001, recorded as plan no. 15645. A copy of the recorded plan can be provided if requested.”): carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

JP moved the board to grant the requested waiver of the requirement for topographic information for the reason that the applicant’s attorney gave in his letter of August 22, 2013. (“Parcel A is relatively level and is not a separate building lot and the topography does not affect this lot line adjustment.”)

PH seconded the motion.

Discussion: None.

Vote to grant the requested waiver of the requirement for topographic information for the reason that the applicant’s attorney gave in his letter of August 22, 2013 (“Parcel A is relatively level and is not a separate building lot and the topography does not affect this lot line adjustment.”): carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

JP moved the board to grant the requested waiver of the requirement for a tie to USGS and state plane coordinate system for the reason that the applicant’s attorney gave in his letter of August 22, 2013. (“In order to tie into these references, a large amount of survey work would be needed and this is a very minor lot line adjustment application.”)

PH seconded the motion.

Discussion:

BM said that the amount of survey work would be very large and would not be worth doing.

Vote to grant the requested waiver of the requirement for a tie to USGS and state plane coordinate system for the reason that the applicant’s attorney gave in his letter of August 22, 2013. (“In order to tie into these references, a large amount of survey work would be needed and this is a very minor lot line adjustment application.”): carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

BM moved the board to accept the Federhen application as complete.

PH seconded the motion.

Discussion: None.

Vote to accept the Federhen application as complete: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

Hearing on the merits:

CW opened the hearing on the merits of the Federhen application at 7:19 PM.

CW read the notice of public hearing.

CW invited Larry Federhen to explain his application.

Larry Federhen said that he and his wife, Leslie Federhen, had bought the 13.60-acre parcel at tax map R2, lot 6, adjoining Larry Federhen’s home at 18 Range Road, tax map R3, lot 4, in 2001 for protection. In about 2010, Larry Federhen and his wife bought the .841-acre triangular tract from William H. Stiles and merged it into the parcel at tax map R2, lot 6, for current-use-assessment purposes. (RSA 79-A is the current-use-assessment law.) Tax map R2, lot 6, thus went from 13.60 acres to 14.44 acres. Larry Federhen is now transferring the .841 acre triangular tract from tax map R2, lot 6, to tax map R3, lot 4, because the new arrangement will make tax map R3, lot 4, substantially more marketable but will not substantially reduce the value of tax map R2, lot 6. Larry Federhen said that he might have to sell his properties and move because he now lives alone. (Leslie Federhen died in December 2011.)

CW invited public input.

Mitch Emerson said that he abutted the Federhen property and did not object to the lot line adjustment.

CW closed the hearing at 7:22 PM.

BM moved to approve the Federhen application for lot line adjustment.

PH seconded the motion.

Discussion:

BM and JP briefly discussed the impact that the lot line adjustment would have on the current use assessment of the .841-acre tract being transferred. Current use assessment ignores lot lines and depends only on the continuous area of the open space land under common ownership. (RSA 79-A:2, IX, and RSA 79-A:5, I.) Larry Federhen does not have to remove the .841 acres from current use assessment. The land use change tax is 10 percent of ad valorem regardless of how long the land has been assessed at current use. (RSA 79-A:7, I.)

Vote to approve the Federhen lot line adjustment: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

CW explained the 30-day appeal process of RSA 677:15.

JP suggested that Larry Federhen review RSA 677:15 because the state legislature has just revised this statute. (The new revision is RSA 677:15, I-a.)

Larry Federhen signed the waiver request.

The board’s notice of decision approving the lot line adjustment is appended at the end of this minutes document. (See RSA 676:3, II.)

AGENDA ITEM 6: Proposed Amendments by the Planning Board to the Zoning Ordinance

CW said that the building inspector, Jesse Pacheco, had notified the board that the building codes that zoning ordinance article 10 cites are obsolete. CW thought that including building codes in the zoning ordinance might be inappropriate. CW suggested eliminating the building codes from article 10 instead of changing the references from BOCA and CABO to ICC.

JP said that, by coincidence, he had done much research on building codes and that he agreed that the building codes should be eliminated from article 10. JP said that the material on manufactured housing parks should also be eliminated because manufactured housing parks are prohibited in all zoning districts. (Zoning ordinance article 2, table 1, Zoning Districts and Uses.)

JP said that warrant article 2 of the March 10, 1998, town meeting “delete[d] all Building and Safety Codes adopted by the Town prior to this date [March 10, 2013.]” But recent information from the NH Local Government Center suggests that at least one building-code provision—empowering the zoning board of adjustment (see RSA 673:1, V)—might have survived the comprehensive repeal of 1998. The board needs to know what other building codes, such as any related to zoning ordinance article 10, may have survived. JP said that the planning board is the custodian of the town’s building codes in the same manner as the planning board is the custodian of the town’s zoning ordinance. (RSA 675:3 and :4.) But the zoning ordinance and the local building code are two separate bodies of law.

JP said that he favored deleting the building codes from zoning ordinance article 10 even if the town adopted them after the comprehensive deletion of 1998. JP said that he is against augmenting the state building code. (See RSA 155-A, New Hampshire Building Code.)

CW said that he had asked EN for guidance on revising zoning ordinance article 10 to eliminate building codes. CW said that JP’s information was even more reason to eliminate the building codes from article 10.

CW said that PH had talked about establishing housing for older persons in Pittsfield and the zoning changes that might be necessary to accommodate it. (Planning board minutes, August 15, 2013, agenda item 7, Members’ Concerns, page 12, paragraph 3.) CW said that JP had given CW JP’s research on housing for older persons and that the research is extensive. This project could be big, so CW suggested that the board first work on making the zoning ordinance agree with state law. Making the zoning ordinance agree with state law should be the board’s focus for the next town meeting, in March 2014. Housing for older persons could be a project for next year.

JP said that this year’s legal update of the NH Office of Energy and Planning warned attendees of numerous changes in statutes related to planning and zoning. The state legislature has imposed some requirements on abandonment of variances and special exceptions. Article 6, Special Exceptions, needs only a small change, but articles 7 and 5 need big changes to agree with state law.

JP said that current articles 1, 22, 23 (administration and enforcement), and 24 should be corrected and combined. At the last meeting of the zoning board of adjustment (“ZBA”) the ZBA cited current article 1 of the zoning ordinance as broad enabling authority to act as the building code board of appeals. Some members of the ZBA think that the town meeting did everything that it could have done under RSA title 64, Planning and Zoning, when the town meeting adopted the zoning ordinance, because article 1 cites title 64 in whole. JP said that this interpretation is mistaken but that the citation to all of title 64 is confusing. JP said that a serious question has arisen as to whether the town meeting has ever authorized the ZBA to act as the building code board of appeals. Zoning ordinance article 5 defines how the ZBA is established, whether appointed or elected, and, before ratifying an appointed ZBA in the new zoning ordinance article 5, JP wants to know whether the ZBA will stay within the authority that the town meeting has given the ZBA. Article 5 must say whether the ZBA will be appointed or elected; therefore, the planning board must choose one or the other.

CW suggested that CW and JP work together to propose draft changes to the zoning ordinance in time for the planning board’s regular meeting in November.

BM asked whether any board member other than JP were concerned about whether the ZBA were appointed or elected.

PH said that he was concerned.

JP said that he was not trying to resolve any concern; JP is just trying to make the board aware of his concerns.

AGENDA ITEM ADDED: The Cingular Wireless PCS wireless telecommunications tower in Hopkinton.

JP moved the board to find that the Cingular wireless telecommunications tower in Hopkinton is not a development of regional impact to Pittsfield. (See RSA 36:56, I.)

BM seconded the motion.

Vote that the Cingular wireless telecommunications tower in Hopkinton is not a development of regional impact to Pittsfield: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

JP said, as general information, that the state law on wireless telecommunications towers had changed. Municipalities can require building permits but not special exceptions, variances, or site plan review for collocation of antennas on existing towers. (RSA 12-K:10, I; RSA 674:33, VII; and RSA 674:43, V.)

AGENDA ITEM ADDED: The NH Department of Transportation’s alignment of left turn lanes on NH Route 107 at the intersection of NH Route 107 and NH Route 28.

CW said that the NH Department of Transportation had given the board notice that the NH DOT would begin work on aligning the left turn lanes on NH Route 107 at the intersection of NH Route 107 and NH Route 28. No action by the planning board is necessary.

AGENDA ITEM 7: Selectman’s Report – Eric Nilsson, Selectman Ex Officio

There was no selectman’s report because EN was absent.

AGENDA ITEM 8: Members’ Concerns

JP said that he had researched how the parking regulations (zoning ordinance article 16) might be revised to accommodate scarce parking in the Commercial District.

CW said that he would like to adopt Pembroke’s policy of planning board action on development proposed on a class VI highway. The planning board can adopt such a policy without waiting for the board of selectmen.

AGENDA ITEM 9: Public Input

Carole Dodge, chair of the ZBA, said that the planning board should consider JP’s concerns about how to revise zoning ordinance article 5, which establishes the ZBA and states its powers. Carole Dodge explained that the ZBA is currently involved in an administrative appeal of a building code decision (the appeal of Paul Rogers over a sign) and that the ZBA is facing difficult jurisdictional and procedural questions. The board of selectmen had assured the ZBA that the ZBA had jurisdiction to act as the building code board of appeals, but this assurance is now questionable. The NH Local Government Center had said that the ZBA had jurisdiction “by default.” The ZBA does not get jurisdiction “by default.” The ZBA is facing significant procedural questions of whether an e-mail to the chair is a filing or whether a filing means something submitted to the administrative secretary and date stamped as received, and whether someone other than the chair can call an unscheduled meeting.

Carole Dodge’s explanation initiated a lengthy discussion between her and planning board members of the problems and questions that Carole Dodge had related. JP said that his research of town meeting warrants had shown that the town meeting never authorized the ZBA to act as the building code board of appeals. (See RSA 673:1, V.) JP said that the 1998 town meeting’s comprehensive repeal via article 2 might have eliminated the building inspector’s position. (See RSA 673:1, V.) The planning board agreed that there is a hole in the local building-code enforcement authority in that the town has no local building code board of appeals, either as a separate board or as the ZBA acting as the building code board of appeals, and may have no building inspector. In order to decide what corrections to the local building codes or the zoning ordinance to propose to the town meeting (see RSA 675:3), the planning board needs to research the building inspector’s position and study the proceedings currently before the ZBA.

AGENDA ITEM 10: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of October 3, 2013: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.) The planning board meeting of October 3, 2013, is adjourned at 8:30 P.M.

Minutes approved: November 7, 2013

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on October 5, 2013, from notes that I made during the planning board meeting on October 3, 2013, and from a copy that Chairman Clayton Wood made on October 4, 2013, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary

—————————————————————————————————————

Notice of Decision

On October 3, 2013, pursuant to the Pittsfield Subdivision Regulations, the Pittsfield Planning Board approved a lot-line adjustment at 18 Range Road, tax map R2, lot 6, and R3, lot 4, in the Rural zoning district.

The applicant’s name and address is the Leslie Miner Federhen Trust, administered by Francis L. Federhen, 18 Range Road, Pittsfield, NH 03263.

The vote to approve the lot-line adjustment was 4 – 0 – 0. Planning board members voting to approve the lot-line adjustment were Clayton Wood, Pat Heffernan, Bill Miskoe, and Jim Pritchard.

The planning board may reconsider this decision, upon the board’s own motion or at the request of any aggrieved person, within 30 days after the date when the board voted the decision (October 3, 2013). (74 Cox Street v. Nashua, 156 N.H. 228, 931 A.2d 1194 (2007).) Any persons aggrieved by the decision may appeal its zoning matters to the board of adjustment and its planning matters to the superior court. (RSA 677:15; RSA 676:5, III; and Hoffman v. Gilford, 147 N.H. 85, 786 A.2d 93, (2001).) Except as provided in RSA 677:15, I-a, (b), an appellant appealing zoning matters must appeal to the board of adjustment within 30 days after the date when the planning board voted the decision (October 3, 2013). (RSA 677:15, I and I-a; RSA 676:5, I; and Pittsfield Zoning Board of Adjustment Rules of Procedure Rules XI, 1 and 2.) An appellant appealing planning matters must appeal to the superior court within 30 days after the date when the planning board voted the decision (October 3, 2013) unless the appellant is also appealing zoning matters. If the appellant is also appealing zoning matters, then the appellant must appeal the planning matters to the superior court after but within 30 days of the date when the board of adjustment resolves the zoning matters and denies a motion for rehearing under RSA 677:3. (RSA 677:15, I-a, (a).)

______________________________ October 7, 2013
Clayton Wood, chair
Pittsfield Planning Board