September 6, 2012 Minutes

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

DATE: Thursday, September 6, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:02 P.M.

AGENDA ITEM 2: Roll Call

Members present: Jim Pritchard (JP), secretary; Pat Heffernan (PH), vice-chair; Gerard Leduc (GL), selectmen’s ex officio member; Bill Miskoe (BM); Clayton Wood (CW), chair; and Peter Dow (PD), alternate.

Members absent: Larry Konopka (LK), selectmen’s ex officio alternate.

Other town officials present: Building inspector Jesse Pacheco.

Members of the public appearing before the planning board: Edwin Kaminski, applicant for site plan review exemption; Carol Lambert, 83 Governor’s Road; Jennifer McCourt, engineer for AHG Properties; and Andrew Sullivan, attorney for AHG Properties.

AGENDA ITEM 3: Agenda Review

CW explained that Edwin Kaminski had applied on Friday for an exemption from site plan review. The board received this application after CW had composed the agenda. CW suggested hearing Edwin Kaminski after the board heard Carol Lambert, who has an appointment to speak as an abutter to the AHG project. CW said that another abutter, Kathy Bleckmann, also has an appointment, but she had told CW that she may not be able to be present tonight.

BM suggested postponing Agenda Item 4, Approval of Minutes, until the end of the meeting in order to avoid making members of the public wait through this item.

The board consensus was not to postpone the approval of the minutes because no member anticipated any time-consuming changes.

Jennifer McCourt asked that the board schedule Edwin Kaminski before the board heard Carol Lambert. Jennifer McCourt wanted the extra time to prepare for any activities that the board might have on AHG’s application.

CW agreed to put Edwin Kaminski on the agenda before Carol Lambert and Kathy Bleckmann.

AGENDA ITEM 4: Approval of Minutes of August 2, 2012

BM moved to approve the minutes as written in draft.

GL seconded the motion.

Discussion:

JP asked that the following passage in Agenda Item 5, page 19:

“conditional approval is therefore only an interim step in the process of the planning board’s consideration.”

should be changed to read as follows to delete “planning”:

“conditional approval is therefore only an interim step in the process of the board’s consideration.”

JP said that the quoted supreme court case is referring to a planning board but that “planning” is clear from the context. JP said that he checked both the tape and the case and that JP did quote the case accurately, without the word “planning.”

CW referred to Agenda Item 4, page 2, BM’s request to delete JP’s objection on July 5. CW said that, upon reviewing the tape of July 5, he now thought that the objection should have stood, but CW will take responsibility for his position agreeing with BM on August 2. CW said that he should pay more attention to order, and CW asked PH, as vice-chair, to help in this task. Board members should raise their hands to be recognized and should respect one another more.

Vote to approve the minutes of August 2, 2012, with the change that JP requested: carried 4 – 0 – 1. (Voting “yes”: JP, GL, BM, and CW. Voting “no”: none. Abstaining: PH.)

[Editorial comment of recording secretary JP: The title of Agenda Item 4 in the August 2, 2012, draft minutes is mistakenly dated “Approval of Minutes of June 21, 2012.” The correct date is July 5, 2012. JP corrected this clerical mistake with the chair’s permission on September 11, 2012.]

AGENDA ITEM ADDED: Edwin Kaminski’s application for exemption from site plan review (Tax Map U2, Lot 3)

BM said that he had had business with Edwin Kaminski’s company, but BM has nothing ongoing. BM will remain seated with the board.

Edwin Kaminski distributed a brochure to the board members.

BM asked whether this request were for an exemption from site plan review or a conceptual consultation.

CW said that the request was for an exemption from site plan review.

Edwin Kaminski said that he does a wide range of aluminum fabricating. Things such as roof awnings are typical. 95% of the fabrication is of aluminum. The shop will use processes such as milling, sawing and so forth. Edwin Kaminski is currently in Boscawen, but the building there is inconvenient because it is narrow. The wide building on Broadway Street in Pittsfield is much better. The pallet shop that was on the site was noisier. The new fabrication shop will not expand the activities of the old pallet shop. The new fabrication shop will not change parking, drainage, water use, or sewerage. Edwin Kaminski has five full-time employees that will use parking. Edwin Kaminski will keep the site neater than it is now. Edwin Kaminski will pack the pallets, move them to the rear, cover them, and eventually burn them for heating within the next two years.

CW asked whether the shop would do any painting.

Edwin Kaminski said that the shop would do no painting. The shop sends its products to outside vendors for finishing.

BM asked whether the sawing is noisy and whether the shop will do sawing at night.

Edwin Kaminski said that the sawing is not noisy because the shop keeps the doors closed. The shop typically operates between 7:30 AM and 4:00 PM.

BM said that Edwin Kaminski should do something if he gets a noise complaint.

Edwin Kaminski said that he would stop the noisy operation. Occasionally the shop works later than 4:00 PM or on the weekend. Edwin Kaminski said that his shop would not increase the neighborhood noise.

CW asked whether Edwin Kaminski would keep all materials inside and whether the lighting would remain the same.

Edwin Kaminski said yes.

GL asked whether the electrical service were adequate.

Edwin Kaminski said yes.

PH agreed with Edwin Kaminski and said that he was familiar with the building and its electrical service.

BM asked whether there would be much truck traffic.

Edwin Kaminski said that there would be about four or five tractor-trailers per week, or about one per day.

Building inspector Jesse Pacheco noted the presence of another small building on the property and suggested that Edwin Kaminski tell the board of any plans that he might have for that building.

Edwin Kaminski said that the building is a small residence. Edwin Kaminski will leave it there for now, evaluate it, and possibly rent it later.

JP asked building inspector Jesse Pacheco whether the board were missing anything that the board should be asking.

Jesse Pacheco said no. Jesse Pacheco said that the building has additional area that might need a review from the zoning board of adjustment if the use of that area changed. Jesse Pacheco said that the fire department should inspect the premises.

BM moved to approve the exemption from site plan review.

PH seconded the motion.

Discussion: None.

Vote to approve Edwin Kaminski’s request for exemption from site plan review (Tax Map U2, Lot 3): carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.)

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

AGENDA ITEM 5: Letters to Board
a. Carol A. Lambert, 83 Governor’s RD, August 2 – concerns with Cluster Subdivision/Site Plan for AHG Properties, Inc., Stagecoach Condominiums, Tax Map R44, Lot 1
b. Kathy Bleckmann, 39 Governor’s RD, August 2 – concerns with Cluster Subdivision/Site Plan for AHG Properties, Inc., Stagecoach Condominiums, Tax Map R44, Lot 1

JP recused himself because his mother is an abutter to the AHG project.

CW asked PD to sit in JP’s place.

CW explained that the two abutters had sent letters to the last meeting, on August 2. Because the board received the letters in the afternoon of August 2, the board had scheduled the abutters to be heard tonight.

Carol Lambert asked how the minutes would present her letter.

CW said that letters typically do not go into the minutes verbatim.

JP said that he tries to summarize letters in the minutes reasonably.

Jennifer McCourt objected that JP should not be recording the board’s minutes for the AHG matter because JP is not qualified to sit for the case. Jennifer McCourt said that the state law on disqualification says that a disqualified board member cannot participate in the board’s activities of the case in any way, including recording the minutes.

CW said that JP will not participate in the board’s discussion or vote. JP is just taking notes, which the board will approve later.

PH said that the board will change the minutes if the board does not like what JP writes. JP’s minutes are complete and accurate.

CW suggested that the board vote on whether JP should record the minutes.

PH moved that JP should record the board’s minutes for the AHG matter.

PD seconded the motion.

Discussion:

BM said that JP’s recording the AHG matter “does put the board in a strange light.” The board should not have JP recording these minutes.

Vote that JP should record the board’s minutes for the AHG matter: carried 3 – 2 – 0. (Voting “yes”: PD, PH, and CW. Voting “no”: BM and GL. Abstaining: none.)

Carol Lambert said that she was disappointed in the board’s vote on July 5 not to reconsider the abandonment decision. The abandonment regulation refers only to whether the final plat is submitted within a certain time, and the final plat was not submitted within that time. The abutters were only asking the board to study the issue more.

Carol Lambert said that AHG has not submitted the condominium covenants. When AHG does submit them, the board will have to have a hearing.

Carol Lambert is skeptical of this developer after the past years. AHG clear-cut one lot next to Carol Lambert. The clearing activities upset the drainage. The Department of Environmental Services had to investigate the matter. The Governor’s Road neighbors had to clean the culverts under the road to keep them open and prevent the road from flooding.

Carol Lambert referred to the driveway permit. The town signed it. Why is the town bonding a private developer? Why is the town providing a $50,000 bond to a private developer when the town has big tax problems? Why is the town taking any responsibility for a private development, especially on a class VI highway? The law says that taxpayer money cannot be used on a class VI highway. A supreme court case from Barnstead said that the town can get into trouble if the town starts working a class VI highway. If a town starts working on a class VI highway, then the town may find itself permanently committed to maintaining the highway. Carol Lambert referred to a state web site that described the possibility for maintenance liability.

Carol Lambert said that AHG had not recorded at the Merrimack County Registry of Deeds a waiver of maintenance liability for development on a class VI highway. Carol Lambert referred to RSA 674:41. Recording the waiver of maintenance liability is important because it notifies prospective buyers that they are buying on a class VI highway.

Carol Lambert said that the development would substantially increase traffic on Tan Road. One serious accident has already happened on Tan Road this year. The increased traffic will depress property values.

Carol Lambert said that she objected to this developer seeking exceptions to rules that other developers must follow. Tan Road was developed properly, without exceptions. AHG wants exceptions to the rules. Their property is landlocked, and the town is bending over backward to help AHG access it.

Carol Lambert said that, when AHG first bought the property, AHG asked Carol Lambert’s late husband, Mike Carden, for a land swap. When Mike Carden said “no,” AHG threatened to put a house right behind the Carden-Lambert house and to put trailer-park-type houses on the remaining land in the rear. AHG then clear-cut the lot adjacent to the Carden-Lambert house.

Carol Lambert said that she has no faith that AHG will follow the rules. Carol Lambert quoted the subdivision regulations requirement for a permanent conservation restriction that must be established on the open space land of a cluster subdivision before final-plat approval (subdivision regulations section 5, K, 4 (section 5, I, 4, in 2006 and 2007)). AHG wants a back-door escape from the conservation restriction. The subdivision regulations require a permanent conservation restriction, no back doors.

Carol Lambert said that, after years of watching this project, she is discouraged. Carol Lambert thinks that the board should enforce the land-use regulations.

BM asked whether anyone had appealed the planning issues of the AHG decision.

Carol Lambert did not know. Carol Lambert said that she had not been notified of any planning board activities for a long time and that the development is much different from what she remembered.

BM said that the plat that the board approved in 2007 is the same as the plat that AHG is submitting now. BM asked Carol Lambert what the abutters want.

Carol Lambert said that the abutters want the board to enforce the rules. The abutters want a permanent conservation restriction. Why is the town bonding any road for a private developer? The abutters want proper bonding.

PD asked whether someone could explain the bond issue. Doesn’t the town have to be the driveway permittee because the state will not permit a private contractor?

CW said that the Central New Hampshire Regional Planning Commission (“CNHRPC”) is reviewing these issues. CW is not prepared to discuss them tonight because CNHRPC has not finished.

Carol Lambert said that the town is allowing a large development on a class VI highway. The town did not have to approve that driveway permit.

CW said that the driveway permit is under the selectmen’s jurisdiction. CW said that CNHRPC is reviewing many of the issues of the approval conditions: bonding, liability agreement, covenants, driveway permit and so forth. CW met with the selectmen and had similar questions. The selectmen did not have answers. The board cannot legally address other issues that do not apply to the lot in question. There are some pieces that the subdivision regulations require and that the board has not seen. These questions are what the board is reviewing and why the chair has not signed the plat.

CW referred to Kathy Bleckmann’s letter. One board member contacted Kathy Bleckmann and asked her whether she had agreed to let AHG move a stone wall. Only the chair should contact the applicant or abutters and only to expedite the agenda. Applicants and the public must be publicly notified of meetings; this is why the chair should get the agenda out a week in advance. CW said that he does not understand moving the stone wall, but this is another discussion. Board members should bring to the board their concerns with a plat. Talking to an abutter and giving advice is not a good idea.

BM interrupted and said that that account was not what happened and that he wanted to explain.

CW said that BM should not be talking to people outside the board. The chair speaks for the board on all non-voting issues. The full board in public meeting resolves voting issues. If the chair causes a problem, then the chair is responsible. If board members cause a problem, then the chair is still responsible. If the board votes not to let JP record minutes, then CW must record them. The board must work with CW and present itself with integrity.

Carol Lambert asked BM whether BM had told Kathy Bleckmann about the July meeting and what would be discussed there? Kathy Bleckmann told Carol Lambert that BM had not told her about the meeting. Carol Lambert said that BM had told Kathy Bleckmann that the project was approved.

BM said that the project was approved in April 2007. That is on the record.

Carol Lambert said that the project was only conditionally approved.

BM agreed.

Carol Lambert said that the conditions have not been met. First, that means that the project is not approved. Second, why did BM not tell Kathy Bleckmann that there would be a hearing on AHG’s project?

BM said that he was doing preparatory homework. BM saw the stone wall moved, so he called Kathy Bleckmann to learn how the stone wall could be moved. BM asked whether anyone had asked for her approval to move the stone wall, and she said no. Then BM pursued the matter within the town. Within the town, BM learned that, because the town owns the right-of-way, a certain amount distant either side of the center line, the town has the right to move the stone wall out of the right of way if it is in the right-of-way. BM confirmed this result by talking to Jennifer McCourt, the engineer for AHG. BM was not trying to mislead anyone or to undermine the chair’s authority; what BM did was just his method of getting the information that he needs for the board meetings.

Carol Lambert said that BM had misled Kathy Bleckmann by not telling her about the two-week’s-imminent planning board’s meeting on the project and by leaving her with the impression that the review was finished.

BM said that he just made an error of omission when he talked to Kathy Bleckmann. BM was not required to tell Kathy Bleckmann about the meeting because the board posts its agenda. BM was just doing homework.

AGENDA ITEM 6: Status of Central New Hampshire Regional Planning Commission review of Final Plat Approval of Cluster Subdivision/Site Plan for AHG Properties, Inc., Stagecoach Condominiums, Tax Map R44, Lot 1

CW referred to his meeting with town administrator Paul Skowron, board of selectman chair Larry Konopka, and highway agent George Bachelder on July 31, 2012. That meeting recommended getting help from the Central New Hampshire Regional Planning Commission (“CNHRPC”), as reflected in the August 2, 2012, planning board minutes. Paul Skowron contacted CNHRPC on August 3, 2012. Matt Monahan contacted CW on August 7, 2012, and CW asked Matt Monahan to expedite the review. CW agreed to deliver to CNHRPC the plat conditionally approved in 2007, the latest plat (May 11, 2012), and all of the board decisions. After receiving these materials, Matt Monahan asked for more. He wanted all of the minutes for the life of the project. CW searched the web site archive for minutes from the zoning board of adjustment, the planning board, and the board of selectmen. CW did not search for information on predecessor proposals on this same tract. Matt Monahan wanted all correspondence from the applicant, and he wanted the mylar. CW delivered these materials to Matt Monahan on August 10, 2012. Because of holidays and vacations, CNHRPC has not finished, but CNHRPC should have some results by next week. On August 24, 2012, CW asked for a status report, and CW sent some restrictions that the applicant sent to CW. The purpose of the help from CNHRPC is for three things: (1) what does the planning board need to sign the plat lawfully, (2) what does the town need to manage the project. CW is working with the selectmen on the management issue, in relation to bonding and such. The board should not review the AHG project until CNHRPC has finished their review. Three people from CNHRPC are working on this matter. When CW has their report, CW will schedule a meeting with town administrator Paul Skowron, board of selectman chair Larry Konopka, and highway agent George Bachelder. CW hopes to have the report from CNHRPC next week. CW has nothing specific from CNHRPC right now. CW has done what he can to expedite the review.

PH asked whether Matt Monahan were doing the report.

CW said that Matt Monahan, Stephanie Alexander, and Mike Tardiff were working as a team to do the report.

CW said that, in his discussions with CNHRPC, it was clear that this conditional approval is not satisfied. The board needs to study The Planning Board in New Hampshire – A Handbook for Local Officials (“Planning Board Handbook” from the NH Office of Energy and Planning). The Planning Board Handbook explains conditional approval well. CW referred to page IV-18 of the Planning Board Handbook, conditions precedent. CW referred to Sklar Realty v. Merrimack and Agway, 125 N.H. 321, 480 A.2d 149 (1984), which CW had distributed to board members’ folders. This case was about a complicated planning board decision with many conditions. The case may be important in relation to the report from CNHRPC. CW asked board members to refer to page 4, section 2, 3:

“We can readily do this by recognizing that there is no approval within the meaning of RSA 36:23 (Supp. 1983) until any conditions precedent have been found to be fulfilled. Only then is there a final approval that authorizes the applicant to begin his proposed construction. Conditional approval is therefore only an interim step in the process of the board’s consideration. Since it can obviously be helpful to boards and applicants, we find no reason to construe the statute to forbid it. Moreover, the recognition that such conditional approval is not final answers…

“The only danger that we see in the practice of giving preliminary approvals subject to conditions precedent would arise from confusing such an approval with the final approval that we described above.”

CW said that CNHRPC was making clear that the planning board needed to see certain things before the board could give final approval.

Andrew Sullivan disagreed with CW. Andrew Sullivan’s disagreement began a long, approximately 20-minute, dialog between Andrew Sullivan and Jennifer McCourt on one side and CW on the other side. The essence of the dialog was that, on one side, Andrew Sullivan and Jennifer McCourt said that AHG had satisfied all of the approval conditions of 2007, and that, on the other side, CW said that the satisfaction of all conditions was not clear and that, consequently, the board needed help from CNHRPC.

During the dialog, Andrew Sullivan and Jennifer McCourt made the following specific points:
1. Andrew Sullivan: Andrew Sullivan read from the planning board’s decision of April 19, 2007, and said that AHG had satisfied all of the conditions listed there.
2. Andrew Sullivan: Responding to CW’s reference to the decision of the zoning board of adjustment (“ZBA”), Andrew Sullivan read that decision and said that AHG had satisfied all of the conditions listed there.
3. Andrew Sullivan: The planning board, not the ZBA, endorses the subdivision plat.
4. Andrew Sullivan: AHG submitted the condominium covenants two weeks ago.
5. Jennifer McCourt: Jennifer McCourt has correspondence indicating that the planning board has received the condominium covenants.
6. Jennifer McCourt: The condominium covenants that AHG submitted are missing from town records.
7. Jennifer McCourt: AHG submitted revised condominium covenants through the town attorney.
8. Jennifer McCourt: The planning board discussed the condominium covenants before the planning board’s approval.
9. Jennifer McCourt: The selectmen’s minutes discuss the NH DOT permit. “The selectmen will not be posting the bond. Obviously, the applicant has to do it because that’s the way it works.”
10. Jennifer McCourt: AHG submitted the condominium covenants in 2007, when the planning board approved the plan.
11. Andrew Sullivan: The planning board’s vote in 2007 granted the subdivision.
12. Andrew Sullivan: The recorded waiver of maintenance liability should be in the planning board’s files from 2007.
13. Andrew Sullivan: Permission from the selectmen to develop on a class VI highway should be in the planning board’s files from 2007.
14. Andrew Sullivan: AHG has provided no bonds.
15. Andrew Sullivan: AHG will provide bonds after the planning board endorses the plat.
16. Andrew Sullivan: The planning board, not CNHRPC, must create the list of what conditions remain for AHG to satisfy.
17. Andrew Sullivan: The board should get advice from the town attorney.

During the dialog, CW made the following specific points:
1. The decision of the ZBA imposes its own conditions precedent that give the planning board broad discretion to decide what is necessary to satisfy the conditions.
2. The subdivision approval is not valid if the special exception conditions are not satisfied.
3. By subdivision regulation, the conditions listed in the special exception decision must be listed on the subdivision plat, but those conditions are not listed on the plat.
4. The special exception is conditioned on bonds being in place.
5. AHG has provided no bonds.
6. AHG has submitted no condominium covenants.
7. CW wants expert advice from planners.
8. The application does not satisfy all relevant provisions of the subdivision regulations, such as the permanent conservation restriction, the maintenance of the common area, and the bonding of the road work.
9. The subdivision is not granted before final approval.
10. If AHG satisfied all of the approval conditions in 2007, when the planning board gave conditional approval, then AHG should have had the 2007 planning board endorse the plat.
11. No waiver of maintenance liability is recorded at the Merrimack County Registry of Deeds.
12. No permission exists from the selectmen to develop on a class VI highway. RSA 674:41.
13. AHG should resubmit any information that AHG claims is missing from the planning board’s files.
14. Both the subdivision regulations (section 7, A, 2, (a)) and state law (RSA 674:36, III, (b)) require that the bonds be in place before final-plat approval.
15. CW is trying to assemble a thorough list of what AHG must do for final-plat approval.
16. The board needs to know the amount that the bonds should be.
17. The board needs to know what is the condominium’s plan to maintain the class VI highway.

PH asked why AHG had taken five years to request endorsement of the plat? What has AHG been doing for the last three years?

Andrew Sullivan said that the Pritchard’s appeal caused the delay.

Jennifer McCourt said that, after that appeal finished, two of the permits had expired, and one of those permits was from the Department of Environmental Services (“DES”), which had changed its regulations.

CW said that the board needs to have an abandonment time period. The plat has evolved substantially since its original submission in 2006. The 2012 plat shows about six revisions since 2006. If the applicant has trouble with a permit, then the applicant should let the planning board know. The supreme court resolved the appeal in 2009. CW did not know how difficult getting state permits is, but the appeal was resolved 2 and 1/2 years before AHG requested endorsement.

Andrew Sullivan said that the board cannot apply an abandonment regulation retroactively.

CW said that three planners have not told CW that his concerns with this plat are unreasonable.

Jennifer McCourt said that she sent to the planning board the e-mail correspondence between Andrew Sullivan and town attorney Laura Spector-Morgan because Jennifer McCourt knew that the board did not have that correspondence.

CW said that he read the e-mail dialog and that he also read the conservation restriction with its provisions for amendments. A conservation restriction with provision for amendments does not sound permanent. CW has personal experience with a homeowners association.

CW called a recess from 8:31 PM to 8:37 PM.

AGENDA ITEM 7: Bailey Park Subdivision Review

JP returned to the board, and PD left the board.

CW explained that the open-space lot of Bailey Park subdivision does not have the permanent conservation restriction that subdivision regulations section 5, K, 4, requires (section 5, I, 4, in 2006). The planning board learned of this problem in January 2010 from the current owner, K & M Developers. K & M Developers had asked about pressuring the three current residents in Bailey Park to agree to a common-area use agreement. The planning board has authority to revoke the subdivision approval, but the board should try less drastic options. The board can do nothing about the currently improved lots, but the building inspector will not issue building permits for construction on currently vacant lots until the open-space lot has a permanent conservation restriction. CW suggested getting guidance from the Central New Hampshire Regional Planning Commission. (“CNHRPC “) Once the board has that guidance, the board could invite the owners and abutters in to the board to discuss finding a solution.

JP said that H. Bernard’s Waugh’s treatise GRANDFATHERED – The Law of Nonconforming Uses and Vested Rights (2009 edition) supports CW’s conclusion of who can and cannot get building permits. The currently improved lots are protected from enforcement action because (1) the town made an administrative error in endorsing and recording the plat when no conservation restriction existed and (2) the lot owners obtained and used building permits in good faith. The currently vacant lots are not protected from enforcement action because no building rights vest until after the land has actually been improved. Permits do not count toward vesting rights.

CW suggested working with CNHRPC to find some options for the Bailey Park owners.

PH asked about common land.

JP said that calling the open-space land “common land” is not proper because the open-space land is just another lot.

PH asked whether the problem were to put a conservation restriction on the open-space lot.

CW said yes.

JP said that the subdivision regulations do not say how the subdivider must meet the requirement for ownership of and a permanent conservation restriction on the open-space lot. There is no requirement for a homeowner’s association, any other form of joint ownership, or even ownership by residents in the cluster development. If the subdivider chooses some form of joint ownership, then the three improved-lot owners can opt in or out. The sale of three lots out of the original subdivision is not a problem for the subdivision owner K & M Developers.

BM suggested telling K & M Developers that the easiest way to satisfy the permanent-conservation-restriction condition is to deed the open-space lot to the Pittsfield Conservation Commission.

JP suggested that the board be very careful about making BM’s proposal. JP cited J.E.D. v. Atkinson, 121 N.H. 581, 432 A.2d 12 (1981). In that case, the Atkinson Planning Board got itself into trouble by approving subdivisions on condition that land be dedicated to the town. Suggesting such a condition could be viewed as extortion. JP is concerned that telling the developer how to satisfy the permanent-conservation-restriction condition when the developer has not asked for advice might be viewed as coercion.

BM asked whether anyone in Bailey Park were requesting a building permit.

Jesse Pacheco said yes, Charles Eccleston. Charles Eccleston’s request brought this matter critical.

JP said that the conservation restriction that town attorney Laura Spector-Morgan had asked the board to approve on January 21, 2010, was defective because it provides for unspecified amendments. A permanent conservation restriction does not provide for unspecified amendments.

CW agreed and referred to the requirement in the subdivision regulations for a permanent conservation restriction (subdivision regulations section 5, K, 4 (section 5, I, 4, in 2006 and 2007)).

Jesse Pacheco emphasized that development conditions must be on the plat in order to be enforced. The town will not enforce conditions in an approval decision but not on the plat.

CW said that Jesse Pacheco’s guidance had been very helpful. CW said that he would send JP’s March 3, 2010, report on Bailey Park to the CNHRPC.

AGENDA ITEM 8: Berry Brook Dam Removal DES Permit by Pittsfield Aqueduct Company, Tax Map R23, Lot 18

CW explained that the Pittsfield Aqueduct Company is removing the Berry Brook Dam because the Pittsfield Aqueduct Company no longer uses the dam and because the dam’s continued existence creates licensing, maintenance, and liability problems for the Pittsfield Aqueduct Company. The Pittsfield Aqueduct Company used the dam until 2008. The biggest legal problem in removing this dam is that the dam is eligible for listing in the National Register of Historic Places. It might be the first aqueduct dam in the country. The Pittsfield Historical Society will document the dam’s disassembly and removal. CW cited RSA 482-A for planning board notification. The dam will be removed by early November.

AGENDA ITEM 9: Members’ Concerns

In view of the late hour, approximately 9:10 PM, members chose not to state their concerns at this meeting.

AGENDA ITEM 10: Public Input

No public input. All members of the public had left by this time.

AGENDA ITEM 11: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of September 6, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, BM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of September 6, 2012, is adjourned at 9:10 P.M.

Minutes approved: October 4, 2012

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on September 8, 2012, from notes that I made during the planning board meeting on September 6, 2012, and from copies of the two Town tapes that Chairman Clayton Wood made on September 7, 2012.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.