September 4, 2014 Minutes

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

DATE: Thursday, September 4, 2014

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:06 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; and
Roland Carter (RC), alternate planning board member.

Planning board members absent:
Eric Nilsson (EN), selectmen’s ex officio planning board member, and
Gerard LeDuc (GL), selectmen’s ex officio alternate planning board member.

Other town officials present: None.

Members of the public appearing before the planning board: Paul Zuzgo, agent for Keath and Patricia Wood, 275 Shaw 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 board would need to address the potential for regional impact of a telecommunications tower in Durham.

CW said that he would defer the approval of the minutes (agenda item 4) until after the board had reviewed the Wood application for completeness (agenda item 5).

CW said that he wanted to plan for amendments to the zoning ordinance and to the subdivision regulations. CW said that the board would have two meetings per month for two or three months to prepare these amendments.

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 August 7, 2014 meeting
2. Public hearing if the application is accepted by the board
3. Application review based on merit

CW referred to the board’s letter of August 13, 2014, to Keath Wood, Patricia Wood, and Paul Zuzgo memorializing the findings that the board made during the board’s completeness review of the Wood subdivision application on August 7, 2014. CW said that the Woods had not addressed some of the deficiencies that the board’s letter had listed:

Deficiency 4: “The shared driveway does not include a statement of the shared easement. (Subdivision regulations section 5, C, 2, (b), (15); section 6, B, 2; section 6, B, 3; section 6, B, 4; section 6, B, 19.)” CW said that the plan has a note that an easement exists, but that the application has no legal instrument defining the property rights and responsibilities of the easement.

Deficiency 6: “The application does not have a request to waive the requirement to put a monument at the front lot corner that falls in the middle of the shared driveway. (Subdivision regulations section 10, F, 1, (a).)” CW said that the Woods had not addressed this deficiency at all.

Deficiency 8: “The shared driveway has no road construction plan and no request for a waiver of the requirement for a road construction plan meeting the requirements of the subdivision regulations. (Subdivision regulations sections 10 and 11 and Davis v. Barrington, 127 N.H. 202, 497 A.2d 1232 (1985).)” CW said that the Woods had not addressed this deficiency at all.

CW referred to deficiency 5—“ The plan does not have the seal of the wetlands scientist. (Subdivision regulations section 5, C, 2, (b), (1).)”—and said that the Woods had corrected this deficiency after 12:00 noon today.

CW referred to deficiency 8—the lack of a road construction plan and no request to waive the requirement for a road construction plan—and said that he and Matt Monahan (the circuit rider planner from the Central New Hampshire Regional Planning Commission) had sent e-mails saying that the Woods should submit a plan that the town’s engineer can review.

Paul Zuzgo asked for confirmation that CW was referring to road-construction details.

CW said yes.

JP said that the plan states the existence of an easement for the shared driveway but does not state the property rights of the easement. JP said that he did not know whether the statement on the plan satisfied the regulatory requirement to state the easement.

CW said that he had discussed the easement requirement with Matt Monahan. The board wants a recordable legal instrument that defines the property rights and responsibilities of the easement. The instrument defining the easement should state (1) who is responsible for the construction, (2) who is responsible for the maintenance, and (3) that the town is not liable for the road. The survey plan should refer to the legal instrument stating the easement.

BM said that he had spoken to Attorney Buckley at the New Hampshire Municipal Association (NHMA, formerly known as the New Hampshire Local Government Center). BM had asked Attorney Buckley “if it was necessary to designate a shared driveway as a subdivision road. And he [Attorney Buckley] said, as long as the subdivision regulations do not prohibit a shared driveway, there is no reason to require that a shared driveway be a subdivision road. And he [Attorney Buckley] said, but be really sure to get a very good covenant written and recorded describing all of the responsibilities and rights with respect to the shared driveway. Right-of-way, non-blocking, maintenance, everything else. He [Attorney Buckley] said, that has to be not only drawn up, approved, but recorded and either on the recorded plan, which it probably won’t be, or referred to on the recorded plan as to how it’s been recorded at M.C.R.D. [Merrimack County Registry of Deeds]. So, I don’t think we need to be talking about a road design, because I don’t think we can require a road design on something which is not a subdivision road. And it’s absolutely the worst thing to do to determine that this is a subdivision road. Because if we do, when they build two houses at the end of it, the owners will say, okay the subdivision’s complete, we request the town take over maintenance. And I don’t think we want to have the town put another 800 feet of road, six culverts, and four wetlands crossings on the town’s maintenance docket. So the last thing we want to do is declare that this thing is a subdivision road. It’s a shared driveway and it needs a covenant; that’s all.”

CW said that he too had spoken to Attorney Buckley at NHMA and that Attorney Buckley had said that RSA 236:13, VI, empowers the board to regulate the shared driveway.

JP said that Davis v. Barrington, 127 N.H. 202, 497 A.2d 1232 (1985), controls the board’s authority over the shared driveway and does empower the board to regulate the shared driveway. JP cited A Hard Road to Travel, 2004 edition, which advises not to rely on covenants for private maintenance. (Page 132.)

CW said that the shared driveway is a difficult road and that the board must scrutinize it. CW cited RSA 236:13, VI. CW said that the board did not necessarily have to hold the shared driveway to the full road-construction standards of the subdivision regulations. The board needs to get a recommendation from the town engineer.

BM said that holding the shared driveway to the full road-construction standards of the subdivision regulations would give the owners the right to ask the town to accept responsibility for the road maintenance.

JP said that no one was saying that the board would hold the shared driveway to the full road-construction standards of the subdivision regulations. The applicant can ask for a waiver of the road-construction standards. But the shared driveway is a subdivision road even if it is not built to the full road-construction standards of the subdivision regulations.

CW said that the Woods should present a road-construction plan and that the board should have the town engineer review the plan.

JP said that the board does not want the Woods to build the shared driveway to the full road-construction standards of the subdivision regulations. But the Woods must present some road-construction plan.

CW said that he wanted a plan and a recommendation from the town engineer.

BM said that the board would have difficulty in developing standards for the town engineer to use in evaluating the road-construction plan. BM said that the shared driveway is a driveway, not a subdivision road, and that the board cannot regulate the construction of driveways.

CW cited RSA 236:13, VI. This driveway crosses very difficult terrain. Attorney Buckley said that the Woods should submit a plan and that the board should have the town engineer review it.

BM said that he did not want to put the town in the position of having to send school buses down the shared driveway to the houses at the end.

CW and JP said that the shared driveway would still be a private road, not a highway. JP said that requiring a road-construction plan did not invoke a dedication of the road to public use.

PH asked who the town engineer would be.

CW said that the town engineer would be the Louis Berger Group.

PH asked about getting a road design from Louis Berger Group.

CW said that the Woods should develop the plan.

Paul Zuzgo said that the wetlands-crossings permit includes a road-construction plan.

CW stated his concerns for the shared driveway and why he wanted the town engineer to review a road-construction plan: (1) the road is shared, (2) the road is almost 800 feet long, and (3) the road crosses very difficult terrain.

BM asked what did CW want as a road-construction plan.

JP said that the Woods can propose whatever they think is appropriate.

BM said that the board must develop standards for the Woods.

JP disagreed.

Paul Zuzgo said that the road-construction plan in the wetlands-crossing permit was lacking nothing except typical driveway cross sections.

BM said that a road-construction plan would have to have cross sections shown at 25-foot to 50-foot intervals, not just at the wetlands crossings.

JP said that a plan explains how the road will actually be built on the ground.

PH suggested that the four wetlands crossings could constitute the road-construction plan.

BM said that the distance between the four wetlands crossing is too long to constitute a road-construction plan.

JP said that the board was facing two issues: First, does the board have jurisdiction over the shared driveway? The board voted on August 7, 2014, that the board does have jurisdiction. Second, if that vote is valid, then the board’s question is how does the road-construction plan get done. The board’s letter of August 13, 2014, to the Woods says, “The shared driveway has no road construction plan and no request for a waiver of the requirement for a road construction plan meeting the requirements of the subdivision regulations.” The subdivision regulations have baseline construction requirements for roads. The board is not saying that it will impose the full road-construction standards of the subdivision regulations. But it is not the board’s place to tell the applicant what his waiver request should say. The applicant can say that he has a road-construction plan in the wetlands crossing permit. The board can have Louis Berger review the road-construction plan in the wetlands crossing permit. The Woods can say that they are requesting a waiver from the requirement for a road construction plan meeting the requirements of the subdivision regulations, because the Woods think that the road-construction plan in the wetlands-crossing permit is adequate to the circumstances of this specific case.

CW said that he would not revisit the board’s vote on whether the board has jurisdiction over the shared driveway. CW cited RSA 236:13, VI, for the board’s jurisdiction.

BM said that RSA 236:13 applies only at the driveway’s curb cut.

JP said that Davis v. Barrington, 127 N.H. 202, 497 A.2d 1232 (1985), controls the board’s authority over the shared driveway.

CW said that the Woods can present their wetlands-crossing permit as the road-construction plan if they want.

PH agreed with JP’s suggestion that the Woods could, if they wanted, submit the wetlands-crossing permit as their road-construction plan and request a waiver giving as a reason that the road-construction plan in the wetlands-crossing permit is adequate to this specific case.

BM said that considering a waiver would admit that the road is a subdivision road, and BM said that the road’s status as a subdivision road would let the owners ask the town to assume responsibility for its maintenance.

JP said that anyone can ask the town to assume responsibility for the maintenance of any road. A road’s status as a subdivision road does not make that road a road dedicated to public use.

Paul Zuzgo said that he would add a typical driveway cross section to the plan given in the wetlands-crossing permit. The cross section will show materials. Paul Zuzgo asked whether the fire chief had asked for means enabling emergency vehicles to reverse direction at the end of the driveway.

CW said that the fire chief had had no comment, but CW said that he, CW, would have required means enabling emergency vehicles to reverse direction at the end of the driveway.

Paul Zuzgo said that the driveway is 20 feet wide.

CW said that emergency vehicles cannot reverse direction within a lane 20 feet wide.

CW summarized the board’s determination of deficiencies in the Wood subdivision application so far:

Original deficiency 4: The application’s statement of the shared-driveway easement, which now appears on the subdivision plan, is incomplete because the application does not have a legal instrument defining the property rights and responsibilities of the shared-driveway easement.

Original deficiency 6: The application does not have a request to waive the requirement to put a monument at the front lot corner that falls in the middle of the shared driveway. (Subdivision regulations section 10, F, 1, (a).)

Original deficiency 8: The shared driveway has no road construction plan and no request for a waiver of the requirement for a road construction plan meeting the requirements of the subdivision regulations. (Subdivision regulations sections 10 and 11 and Davis v. Barrington, 127 N.H. 202, 497 A.2d 1232 (1985).)

Paul Zuzgo asked for clarification that the legal instrument for the shared-driveway easement should establish the easement and convey the easement to the current property owners, namely, Keath and Patricia Wood.

The board agreed.

JP said that he had been unable to determine from the plan what the width of Shaw Road is along the parent tract. JP said that the subdivision regulations require that “Subdivisions on existing public streets with Right-of-Ways less than 50 feet shall dedicate land of width equal to one-half the difference between the existing right-of-way and 50 feet, the full length of the frontage.” (Subdivision regulations section 10, A, 2.)

Paul Zuzgo said that the subdivision of 2001 had made this dedication via a deed from Wood to the Town of Pittsfield, M.C.R.D. book 2256, page 749.

CW continued the completeness review to October 2, 2014.

CW called a brief recess from 8:06 PM to 8:11 PM.

AGENDA ITEM 6: Review of the Update to the Planning Board’s Rules and Procedures

CW said that the building inspector, Jesse Pacheco, is eager for the board to revise and clarify the definitions list in the zoning ordinance. CW said that he had a copy of a revision of the subdivision regulations and a copy of a definitions list with revised definitions. CW said that he would distribute these copies later in the meeting.

CW referred to the rules of procedure draft dated April 28, 2014. Sections IV and XI have not been changed because they are part of Matt Monahan’s amendment, which entangles with the subdivision regulations. But the board will revise these sections because the board has had a lot of trouble with the Monahan amendment of the subdivision regulations.

CW referred to the rules patch dated July 27, 2014, for section III, Officers, and the rules patch dated July 14, 2014, for sections V, X, and new XI, for scheduling meetings around holidays and filing legislative documents. These patches will change the April 28, 2014, draft.

CW discussed the need to revise the rules for preliminary review of subdivisions and site plans.

CW asked for the board’s consensus approval of the base draft dated April 28, 2014.

BM referred to rule V, 3:

“The board shall hold special meetings at either the call of the chair, the vote of the board, or the written request of a majority of the board members. Members shall not request a special meeting on the basis of communication between board members outside a meeting open to the public in accordance with RSA 91-A.”

BM asked to eliminate the sentence “Members shall not request a special meeting on the basis of communication between board members outside a meeting open to the public in accordance with RSA 91-A.”

JP objected to eliminating the sentence because specifying that a majority of board members can call a meeting suggests that they could do it outside of a meeting. The only lawful way that a majority of board members can call a meeting is if those board members request the meeting independently of each other.

BM said that the phrase “or the written request of a majority of the board members” should remain but that the second sentence “Members shall not request a special meeting on the basis of communication between board members outside a meeting open to the public in accordance with RSA 91-A” should be deleted.

JP said that the phrase “or the written request of a majority of the board members” guards against the chair’s abusing his authority. The second sentence, in turn, guards against board members’ abusing their authority in violation of the Right-to-Know law, RSA 91-A.

CW asked for the board’s consensus on whether the rule should have the phrase “or the written request of a majority of the board members.”

BM said that the rule should have the phrase.

PH said that the phrase would probably be used only rarely, if ever, but was necessary.

JP agreed with BM and PH.

RC agreed with BM and PH.

CW asked for the board’s consensus on whether the rule should have the sentence “Members shall not request a special meeting on the basis of communication between board members outside a meeting open to the public in accordance with RSA 91-A.”

JP said that the rule should have the sentence.

CW agreed with JP.

PH agreed with JP.

BM disagreed because a majority of board members cannot collude on anything outside a meeting, not just to call a meeting.

CW asked whether the board consensus was that the board is satisfied with the April 28, 2014, draft.

The board consensus was that the board is satisfied with the April 28, 2014, draft.

CW referred to the rules patch dated July 14, 2014, for sections V, X, and new XI. The rules patch makes adjustments for regular meetings that interfere with New Year’s Day (January 1) and Independence Day (July 4). The rules patch also schedules a second regular meeting in December so that the board has more time to process citizen petitions to amend the zoning ordinance. The rules patch also provides for filing legislative documents, such as zoning amendments. Since 2007, the board has not been filing zoning amendments with the board’s minutes.

CW asked whether the board consensus was that the board is satisfied with the July 14, 2014, rules patch.

The board consensus was that the board is satisfied with the July 14, 2014, rules patch.

CW referred to the rules patch dated July 27, 2014, for sections III, IV, and XII, to clarify the various secretarial functions. The board needs a general board secretary who has parallel authority with the chair to sign board documents. (RSA 31:128.) The board needs a recording secretary to take meeting notes and to write minutes. The board needs an administrative secretary to handle the routine business in the town hall.

BM asked why section III, Officers, refers to an administrative secretary but does not define the administrative secretary.

JP explained that he had had to determine who is an officer. JP said that he had referred to Robert’s Rules of Order. People who have special powers or duties and who report directly to the board are officers. People who do not report directly to the board are not officers. The board secretary is a board member and an officer. The recording secretary is also an officer, even if he is not a board member, because the recording secretary submits the minutes directly to the board for approval. The administrative secretary is not a board officer because the administrative secretary typically reports to the chair, not to the board. Thus the position of administrative secretary is defined in section IV, Administrative Assistance, instead of section III, Officers. JP said that he would add a parenthetical note in rule III, 11—“(see rule IV, 1)”—after “administrative secretary.”

The board discussed that the functions of the administrative secretary are the board’s responsibility and that the board must find a way to perform these functions if the regular administrative secretary, currently Dee Fritz, suddenly leaves for any reason. The board cannot automatically delegate these authorities to another town hall staff person because of labor union considerations. If no other person is available, then the board secretary, as a last resort, must perform the administrative secretary’s functions.

The board again discussed the need to revise the rules for preliminary review of subdivisions and site plans.

CW asked whether the board consensus was that the board is satisfied with the July 27, 2014, rules patch.

The board consensus was that the board is satisfied with the July 27, 2014, rules patch.

CW referred to the draft subdivision regulations that he and JP had composed. These draft subdivision regulations have new provisions for preliminary review of subdivisions and site plans. CW distributed a copy of the draft subdivision regulations and a copy of the list of revised definitions from the zoning ordinance. CW said that the board would focus on the draft subdivision regulations at the board’s special meeting on September 18, 2014.

AGENDA ITEM ADDED: An application for amendment to an approved personal wireless services facility in Durham, NH.

JP moved the board to find that the telecommunications project in Durham is not regional impact to Pittsfield.

CW seconded the motion.

Discussion: None.

Vote that the telecommunications project in Durham is not regional impact to Pittsfield: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 4: Approval of the Minutes of the August 7, 2014 and August 16, 2014 Meetings

BM moved to approve the minutes of August 7, 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 August 7, 2014, as written in draft: carried 3 – 0 – 1. (Voting “yes”: JP, CW, and BM. Voting “no”: none. Abstaining: PH.)

JP requested the following changes to the draft minutes of August 16, 2014:

Agenda item 2, page 2: change

“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.

to

No one except CW, JP, BM, Chris Hill, Diana Westgate, and Paul Zuzgo was present at the meeting.

Agenda item 3, page 2: change

a culvert to allow the stream

to

three culverts to allow the stream

Agenda item 3, page 2: change

up the right

to

up to the right

Agenda item 3, page 2: change

scattered bounders

to

scattered boulders

Agenda item 3, page 3: change

a local low point

to

a local low point and will have a single-pipe culvert

Agenda item 3, page 3: delete

The board apparently missed one of the five wetlands crossings.

Agenda item 3, page 4: change

The board returned to Shaw Road via the driveway path. Along the way, the board tried to find the wetlands crossing that the board missed on the forward trip, but the board found only same four wetlands crossings that it had found on the forward trip.

to

The board returned to Shaw Road via the driveway path. Along the way, the board noted the four wetlands crossings that the board saw on the forward trip.

Agenda item 3, page 4: delete

Summary impressions of recording secretary JP: Overall, the area is heavily vegetated, and the ground is covered with humus. The humus is damp, as expected because of the recent heavy rain, but usually not soggy. Except for one short length of the driveway, the ground is uneven, sloping, and often rocky with boulders approximately one to one and one half feet in diameter. The slope of the ground across which the driveway runs is often steeply up to the right as one faces the lot from Shaw Road. The sloping ground could present a problem in storm water’s eroding the driveway. The building sites appear to present few, if any, special problems, but the shared driveway, because of its length, because of the terrain, and because the driveway is shared, should be a matter that the planning board scrutinizes.

CW moved to approve the minutes of August 16, 2014, with the changes that JP requested.

BM seconded the motion.

Vote to approve the minutes of August 16, 2014, with the changes that JP requested: carried 3 – 0 – 1. (Voting “yes”: JP, CW, and BM. Voting “no”: none. Abstaining: PH.)

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

There was no selectman’s report because EN and GL were absent.

AGENDA ITEM 8: Members’ Concerns

Members’ concern 1: BM’s concern with Paul Zuzgo’s complaint of a Right-to-Know violation.

BM referred to the minutes of August 16, 2014:

“Paul Zuzgo complained that he had been denied access to the prior, withdrawn subdivision plan, from 2005 or 2007, and planning board minutes of meetings reviewing that plan.”

BM wanted to know what the board would do about Paul Zuzgo’s complaint.

CW said that he would talk to Jesse Pacheco about Paul Zuzgo’s complaint.

Members’ concern 2: JP’s concern with the NHMA’s advice on expert opinion.

JP said that the NHMA lecture last night had said that board members have to defer to experts, and JP said that he disagreed. The NH Supreme Court has in fact said that board members do not have to defer to experts. (Vannah v. Town of Bedford, 111 N.H. 105, 276 A.2d 253 (1971); Durant v. Town of Dunbarton, 121 N.H. 352, 430 A.2d 140 (1981); Nestor v. Town of Meredith, 138 N.H. 632, 644 A.2d 548 (1994); NBAC v. Town of Weare, 147 N.H. 328, 786 A.2d 867 (2001); Garrison v. Town of Henniker, 154 N.H. 26, 907 A.2d 948 (2006).) The legal standard is that the board must have sufficient evidence for its decisions and must give good reasons for its decisions. JP said that he was expressing this concern because he wanted board members to bear in mind always that they are the actual decision-makers, that they are accountable to the voters, and that they should not hide behind experts. JP said that he had touched on this issue at the meeting of the zoning board of adjustment on August 14, 2014. Board members can afford to be courteous, respectful, and patient with all people who appear before the board because, after all the discussion, the board wins every argument because the board always makes the ultimate decision. It is important for board members to remember that they are the decision-makers, that they are accountable, that they must have sufficient evidence for their decisions, and that they must give good reasons for their decisions.

PH said that board members should listen carefully to experts but not necessarily to an expert expressing an opinion not in his field.

JP said that he had had in mind a licensed land surveyor who said that a stone wall did not mark the boundary of an ancient highway. The licensed land surveyor’s opinion disagreed with both the ancient layout record and the case law. The board was correct in rejecting the opinion even though it was an expert opinion. This case showed the importance of the board’s decision-making responsibility.

CW said that he thought that the board is doing a better job of taking its responsibilities seriously.

AGENDA ITEM 9: Public Input

No public input.

AGENDA ITEM 10: Adjournment

PH moved to adjourn the meeting.

BM seconded the motion.

Vote to adjourn the planning board meeting of September 4, 2014: carried 4 – 0 – 0. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: none.) The planning board meeting of September 4, 2014, is adjourned at 9:26 P.M.

Minutes approved: September 18, 2014

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on September 6, 2014, from notes that I made during the planning board meeting on September 4, 2014, and from a copy that Chairman Clayton Wood made on September 5, 2014, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary