April 16, 2015 Minutes

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

DATE: Thursday, April 16, 2015

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:02 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;
Daren Nielsen (DN), planning board member;
Gerard LeDuc (GL), selectmen’s ex officio planning board member; and
Roland Carter (RC), alternate planning board member.

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

Members of the public appearing before the planning board: None.

“Members of the public appearing before the planning board” includes only members of the public who spoke to the board. It does not include members of the public who were present but who did not speak to the board.

AGENDA ITEM 3: Agenda Review

CW said, “The plan is just to talk about the select board action at the April 7 meeting and how we proceed with the Woods’ plat.”

In brief, “the select board action at the April 7 meeting” is (1) to pay on Keath and Patricia Wood’s behalf and pending an investigation a disputed amount of $574.44 for third-party reviews of the Wood subdivision application and (2) to refer the situation to town counsel. The “select board action at the April 7 meeting” followed a statement by town administrator Mike Williams (1) that he had “contacted town counsel, and there are some anomalies in the way the process worked” and (2) that “if we pay the bill on behalf of the Woods, it would be with the stipulation that, if nothing is found to have been done improperly, that they would owe the money to the town.” The full text of the board of selectmen’s action and the references for the dispute are set forth in the appendix to these minutes after agenda item 5, Adjournment.

AGENDA ITEM 4: Discussion of “the select board action at the April 7 meeting and how [the planning board] proceed[s] with the Woods’ plat.”

CW said that he had sent a letter to the board of selectmen regarding their action on April 7. (See CW’s letter dated April 12, 2015, to the board of selectmen.) CW’s letter asks the following questions:

1. What are the anomalies that have prompted the board of selectmen to pay the Woods’ bill?
2. How have the anomalies harmed the Woods?
3. Why did the board of selectmen or its representative to the planning board not bring these anomalies to the planning board for discussion?
4. What statute or case law enables the board of selectmen to review a planning board decision?
5. What statute or case law enables the board of selectmen to pay the Woods’ bill on the Woods’ behalf?

CW said that what prompted him to call tonight’s meeting was the Woods’ submitting their plat for endorsement and recording the day after the board of selectmen’s decision. CW said that he wanted the planning board to understand the ramifications of endorsing the Wood plat. CW said that he did not understand why the board of selectmen had done what it did, and CW invited GL, the board of selectmen’s representative to the planning board, to explain.

GL said, “Basically, we had a complaint from the Woods, and they want, we want to have an independent investigation done on it. That’s what the board decided.”

CW said that the investigation could be done without first paying on the Woods’ behalf. CW said that he did not know how the board of selectmen could change the status of the Woods’ bill, based on the planning board’s process. CW recommended that, in view of the board of selectmen’s decision, the planning board endorse the Woods’ plat so as to avoid possible further legal trouble. CW said that endorsing the Woods’ plat would finish the planning board’s involvement with the case. CW said that he wanted the planning board’s guidance on how to proceed with endorsing the plat.

DN asked whether the planning board would have any recourse to recover the disputed money after the board endorses the plat, regardless of what the board of selectmen finds.

CW said that he knew of no recourse. CW said that the planning board could stop the process when money is owed (RSA 676:4, I, (e), (2), and subdivision regulations section 5, I, 2) but that stopping the process becomes moot after the process is finished.

DN said that he wanted the board of selectmen to answer the questions that CW had asked in CW’s letter. DN asked what leverage would the planning board have to make the board of selectmen answer after the planning board endorses the Wood plat.

JP said that he did not understand what the board of selectmen had done or that what the selectmen had done, whatever it was, affects the Wood plat. The board of selectmen voted to pay something, but the bills in question are to the Town of Pittsfield, not to the Woods. JP said that the bills are marked approved for payment, and JP said that he assumed that the bills have been paid. JP said that the statute (RSA 676:4-b, I) talks about “reimbursing” the town. JP said that the board of selectmen had not reimbursed the taxpayers for anything and that, consequently, the board of selectmen had done nothing that affects what the planning board must do on the Wood plat. The planning board is where it was when it last addressed the Wood complaint: The Woods owe money, and the planning board cannot endorse and record the plat until the Woods pay. JP could not see what the board of selectmen had done except to try to say that the Woods do not owe the money. Saying that the Woods do not owe the money is different from saying that someone is going to pay the money on the Woods’ behalf. Because the bill has already been paid, the matter in question is to recover the money. The board of selectmen has not recovered any money. JP said that he would not be comfortable endorsing the plat until the board of selectmen explains what the selectmen have done, how the selectmen are reimbursing the taxpayers, and what is the selectmen’s jurisdiction. The planning board routinely tells applicants that there is an appeal opportunity under RSA 677:15, I (to the superior court). JP had never heard that there is an additional appeal opportunity to the board of selectmen. JP quoted the NH Supreme Court in respect to a board of selectmen’s decision: “Absent subject matter jurisdiction, a tribunal’s order is void.” (Gordon v. Town of Rye, 162 N.H. 144, 149, 27 A.3d 644, 649 (2011).) If the Pittsfield Board of Selectmen had no jurisdiction in the Wood case, then their order is void, and there has been no change.

PH asked, “Does it make any difference who pays the bill as long as the bill is paid?”

JP said, “Yes, it has to be paid by somebody other than the taxpayer.”

PH asked, “Why?”

JP said, “Because the statute [RSA 676:4-b, I] says, ‘reimburse.’ The bill has already been paid, and the taxpayers have paid the bill. Now the taxpayers must be reimbursed.”

CW said that the place to settle the dispute was at the planning board. The planning board had discussed the Wood application for months. If someone found anomalies, then he should have brought them to the planning board for discussion. CW said that town administrator Mike Williams had written an e-mail that indicates clearly that the selectmen are looking beyond the Woods’ complaint. CW said that the Woods complained that they did not know about the town engineering, but the case file is full of evidence that the Woods did know about the town engineering. CW said that the Woods complained that the planning board did not get information from an engineer that the Woods had used in 2007. The planning board explained that the board could not lawfully use that information. Discussion of the Woods complaint had suggested that perhaps the Woods did not know that they would have to pay for the town engineering. CW said that the Woods certainly knew that they were having to pay for their own agents, so the Woods should have known that the town engineer would not be free either.

JP said that even the free-engineering theory makes no sense because the Woods do not dispute all of Matt Monahan’s review, only some of it. JP said that the Woods dispute the third and fourth reviews that Matt Monahan did, but that the Woods do not dispute Matt Monahan’s first two reviews. JP said that the Woods have appeal options. The Woods can go to superior court; that is the law. (RSA 677:15, I, and DHB v. Pembroke, 152 N.H. 314, 876 A.2d 206 (2005).) JP said that he knew of no law enabling the board of selectmen to take an appeal of a planning board decision. JP said that the master plan committee had been talking about the town’s need for discipline on the town boards. The planning board must have the discipline now to demand that the board of selectmen show its jurisdiction to review a planning board decision, and to ignore the board of selectmen’s order if the board of selectmen does not show its jurisdiction. That is the law.

DN said that there is the question of the board of selectmen’s jurisdiction and that there are CW’s questions to the board of selectmen. DN said that the planning board should defer endorsing the Wood plat until after the board of selectmen answers the questions in CW’s letter. DN said that he had not been able to find that the board of selectmen has jurisdiction over the Wood complaint.

CW said that he had called tonight’s meeting to let the planning board decide what to do about endorsing the Wood plat in light of the board of selectmen’s decision. CW said that the board of selectmen had put the town at risk. CW said that arguing over a few hundred dollars in a very difficult subdivision makes no sense. The planning board only has to show that the expenses for third-party review are “reasonable.” (RSA 676:4-b, I.) The planning board’s routine consultant, Matt Monahan, had said that the board needed the town engineer.

JP said that the rules in effect at the time of the Wood application required that the planning board have third-party review for both completeness and merits and that the board have both reviews before the board voted on completeness. JP cited rules III, 3 and 4, of the planning board’s rules of procedure adopted on February 18, 2010, as requiring the third-party reviewer to identify “any and all deficiencies” before the application goes to the board. The third-party review of the Wood application is not an “anomaly.”

DN read from Matt Monahan’s fourth and final review saying that the town-engineering review of the shared driveway “should be done”:

“The Board may want the Town Engineer to review the cross section for the driveway and have the Fire Chief review the cross section and the layout of the driveway for drainage suitability, potential for washout on Shaw Road and emergency access suitability. This could be done after accepting the application as complete but should be done before the final vote.”

(Matt Monahan’s fourth review, Action items for the Board, number 4.)

CW said that Matt Monahan had told him that he had a concern about the road plan. The Woods had either to submit a road plan or to ask for a waiver. What the Woods did was to submit a “doctored road plan.”

JP read into the record rules III, 3 and 4, adopted February 18, 2010:

Rule III, 3, in whole:

“The CNHRPC Circuit Rider, a representative from the Office of the Building Inspector, and a representative from the Office of the Town Administrator shall hold a ‘pre-application’ meeting with applicants for No. 1 above to review plans and/or application material. Feedback will be given to the applicant at this meeting as to what may be needed for a completed application, as well as what may be needed for regulatory compliance or any other issues pertaining to the approval process.”

JP said that rule III, 3, required both third-party completeness review and third-party merits review.

Rule III, 4, in whole:

“Following the pre-application meeting described in No. 3 above, the CNHRPC Circuit Rider will provide a memorandum to the applicant outlining any and all deficiencies or issues with regard to the proposed plan or application. Applicant will have the option to update plans and/or application materials and resubmit them to the Circuit Rider Planner for final recommendation to the planning board. Should the Applicant choose to not revise the plans and/or materials, the Circuit Rider Planner shall forward his initial comments to the planning board along with an appropriate recommendation.”

JP said that the rules clearly require the third-party review to be comprehensive and exhaustive. JP asked DN to repeat Matt Monahan’s recommendation that the town-engineering review of the shared driveway “should be done,” which DN did.

JP said that Matt’s opinion that the town engineering could have been done after the completeness vote disagreed with rules III, 3 and 4.

CW said that the planning board will either have third-party review or will not have third-party review. The board has to get whatever review the board needs.

DN said that the planning board is searching for the anomaly but cannot find it. Maybe the board should stop searching and wait for the board of selectmen to answer CW’s letter, to say what the anomaly is, and to say what their jurisdiction is.

CW said that the board of selectmen had had lots of time to identify anomalies and that the board of selectmen should not be going outside the Woods’ complaint to identify an anomaly. The board of selectmen has a representative to the planning board, and that representative should have tried to solve any problems at the planning board, not at the board of selectmen.

JP said that jurisdiction is the first question to confront. JP said that he had studied subject matter jurisdiction in Gordon v. Town of Rye, 162 N.H. 144, 27 A.3d 644 (2011), and Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 825 A.2d 493 (2003). JP read from Gordon v. Town of Rye: “A court lacks power to hear or determine a case concerning subject matters over which it has no jurisdiction.” JP said that the planning board does not reach the question of what the anomaly is until after the board of selectmen establishes subject matter jurisdiction. The board of selectmen must establish subject matter jurisdiction before they do anything else.

CW suggested letting the board of selectmen deal with the approximately $500 expense. CW said that he did not see the board of selectmen’s jurisdiction. CW suggested deferring to the planning board’s next meeting the decision of how to proceed on the Wood plat. Perhaps the board of selectmen will answer some of the planning board’s concerns.

RC asked for clarification of the need for the town engineer.

CW said that the planning board had identified some safety concerns that the board needed the town engineer to address. The board had not been looking for a road plan as for a public road; the board had been looking for only what was necessary for safety, such as drainage.

JP said that there is no problem in deferring the endorsing and recording of the Wood plat until after either the board of selectmen answers CW’s letter or the Woods pay the bill, because the Woods have all the lawful remedies that they always have had: (1) the Woods can refuse to pay the bill, and they can accept denial; (2) the Woods can refuse to pay the bill, and they can go to court; and (3) the Woods can pay the bill and have their plat recorded. The Woods have always had these options since the Woods first filed. The Woods could have refused to pay for Matt Monahan’s third review and withdrawn their application. The Woods could also have gone to court at any time and claimed that the expenses for third-party review were unreasonable. If the planning board were to act on the Wood plat, then the planning board would do nothing except legitimize what the board of selectmen has done. Legitimizing what the board of selectmen has done would be a serious mistake.

CW said that he wanted to defer additional discussion of the Wood plat to the planning board’s next meeting (on May 7, 2015) and that he wanted GL to convey the planning board’s concerns to the board of selectmen. CW said that he understood “the purity of the law here” but that he also thought that the board of selectmen had put the planning board on track to do something that would not help the town.

JP said that a fundamental fairness matter is involved. JP said that he had had to go to court when he had had problems with Pittsfield’s land use boards. JP said that, at the planning board’s last meeting (on April 2, 2015), PH had told JP to go to the attorney general if what the ZBA was doing was such a heinous offense. JP said that the Hetus had had to go to court. JP said that the Klitzes had had to go to court. Other people have to go to court if they do not like something, but all of a sudden, the Woods go to the selectmen and do not have to go to court, and the selectmen do not have to answer any questions. The selectmen just say that they are going to nullify this bill. This dispute is about much more than just $500. The dispute is about jurisdiction; it is about another town board trying to usurp the planning board’s lawful authority. If the planning board allows that to happen, then the planning board is as guilty as the people who are trying to do it.

PH questioned the merits of JP’s cases against the land use boards in years past.

DN said that making the taxpayer pay the Woods’ bill troubled him greatly. DN said that he wanted to defer the discussion of the Wood plat to give board members time to reflect. This dispute involves important issues.

CW said that the planning board could be setting a dangerous precedent that would invite the board of selectmen to overrule the planning board on other matters. CW said that favoritism also seemed to be a factor in that some people have to go to litigation while other people can just go to the selectmen. CW said that the subdivision regulations clearly say that the planning board can stop consideration if the applicant does not pay the bills. (Subdivision regulations section 5, I, 2: “Failure to pay a fee shall constitute valid grounds for the Board to terminate further consideration and to disapprove the plat without a public hearing.” Also see RSA 676:4, I, (e), (2).)

DN said that he wanted to know what is the selectmen’s objection even if the selectmen do not have jurisdiction. DN said that he could find nothing objectionable in how the planning board had handled the Woods’ application.

CW said that the planning board would be finished with the case once the planning board endorses the plat.

DN said that that is why the planning board should defer the decision on how to proceed.

CW moved the planning board to defer the discussion of the Wood plat to the board’s next meeting, on May 7, 2015.

JP seconded the motion.

Discussion:

CW said that the status quo of the Wood plat is the planning board’s last vote not to endorse the plat until the Woods pay for the third-party review. CW said that the board had considered the issue twice and had voted the matter twice (on March 19, 2015, and April 2, 2015). CW said that the selectmen’s representative was present and that the selectmen’s representative should have raised his objections at that time.

PH objected to CW’s criticism of GL. PH said that the previous two selectmen’s representatives (EN and Larry Konopka) should have raised the matter.

The planning board had a brief discussion of the poor attendance and poor participation of the selectmen’s representatives, including GL, in the Wood case. No selectmen’s representative—regular member or alternate—was present at any of the planning board meetings that reviewed the Wood plat before the board voted on the plat on November 6, 2014. GL was present on March 19, 2015, and on April 2, 2015, when the planning board decided the Woods’ complaint against paying for certain third-party review, but GL did not participate in either of the board’s discussions until after the board had voted both times to deny relief.

CW said that he would not endorse the Wood plat before the planning board’s next meeting if the plat should become ready for endorsement except for paying the disputed bills.

JP said that he, as the chair’s cosigner, did not understand that the board of selectmen had changed the status quo of the Wood plat at all. JP said that he would not sign the Wood plat unless the selectmen explain how their decision has changed the status quo of the Wood plat or unless a majority of the planning board directs JP to sign.

Vote to defer discussion of the Wood plat to the board’s regular meeting on May 7, 2015: carried 4 – 0 – 1. Voting “yes”: JP, PH, CW, and DN. Voting “no”: none. Abstaining: GL.

AGENDA ITEM 5: Adjournment

CW adjourned the planning board meeting of April 16, 2015, at 7:36 P.M.

APPENDIX:

Verbatim transcript of “the select board action at the April 7 meeting” from the audio recording of the board of selectmen’s meeting on April 7, 2015:

Board of selectmen chair Eric Nilsson: “Item 5, Keath and Pat Wood complaint.”

Town administrator Mike Williams: “Yes, so, as you can see from the letter, we got a letter from Keath and Pat Wood on March 23, the same time that the planning board I believe got a letter as well. I told Pat Wood that we weren’t going to act on it until after the planning board has had a chance to act on the letter that they sent them. I understand the planning board has acted on it and a letter was sent out. I’ve since contacted town counsel, and there are some anomalies in the way the process worked. So the recommendation of town counsel is for us to go ahead and pay the disputed amount of $574.44 on behalf of the Woods and to refer this matter to town counsel for them to do investigation, finding of facts, and recommendations on whether or not anything should change, if anything needs to change, whether anything was done incorrectly, and, if we pay the bill on behalf of the Woods, it would be with the stipulation that, if nothing is found to have been done improperly, that they would owe the money to the town.”

Chair Eric Nilsson: “Could I get a motion to basically do what Mike said in summary form?”

Town administrator Mike Williams: “Why don’t you do two motions: one to pay the fee contingent upon the outcome of the investigation and to refer the matter to town counsel.”

Chair Eric Nilsson: “Could I get a motion to pay the fees back to the Woods for $574.44 contingent on the”

Town administrator Mike Williams: “finding of fact from town counsel.”

Selectman Gerard LeDuc: “$574, or is it $599?”

Town administrator Mike Williams: “574.44, that’s the amount due.”

Chair Eric Nilsson: “Yes, that’s the correct number.”

Selectman Al Douglas: “$574.”

Chair Eric Nilsson: “Yes.”

Selectman Al Douglas: “I’m seeing two different numbers.”

Chair Eric Nilsson: “It should be this one right here.”

Selectman Al Douglas: “Yes, got you, got you.”

Selectman Gerard LeDuc: “I make a motion we pay the $574.44 for the dispute, for the disputed, the Woods and on pending the investigation of this.”

Selectman Al Douglas: “Second.”

Chair Eric Nilsson: “Motion’s been made and seconded. Any discussion? All in favor?”

Vote: 5 yes, 0 no, 0 abstaining.

Chair Eric Nilsson: “Then we need the second motion to have”

Town administrator Mike Williams: “refer the matter to town counsel.”

Selectman Al Douglas: “I’ll make a motion that we refer this particular situation to town counsel.”

Selectman Gerard LeDuc: “Seconded.”

Chair Eric Nilsson: “Motion’s been made and seconded. Any discussion? All in favor?”

Vote: 5 yes, 0 no, 0 abstaining.

* * * * * End of transcript * * * * *

“[T]he disputed amount of $574.44” (statement of Mike Williams above) is for two reviews by Matt Monahan of Central New Hampshire Regional Planning Commission, for $125.00 total, and for one review by KV Partners, for $449.44.

References for the dispute over the $574.44:

1. RSA 676:4-b, I.
2. Planning board rules of procedure adopted February 18, 2010, rules III, 3 and 4.
3. Letter of CW to Keath and Patricia Wood dated December 31, 2014, and attached invoices from Central New Hampshire Regional Planning Commission and from KV Partners.
4. Letter of Keath and Patricia Wood dated February 20, 2015, to the planning board.
5. Letter of Keath and Patricia Wood dated March 8, 2015, to the planning board.
6. Planning board minutes of March 19, 2015, agenda item 6.
7. Letter of Keath and Patricia Wood dated March 23, 2015, to the planning board.
8. Letter of Keath and Patricia Wood dated March 23, 2015, to the board of selectmen.
9. Planning board minutes of April 2, 2015, agenda item added between agenda items 9 and 10.
10. Letter of CW to Patricia Wood dated April 2, 2015.
11. Letter of CW to the board of selectmen dated April 12, 2015.

Minutes approved: May 7, 2015

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on April 18, 2015, from notes that I made during the planning board meeting on April 16, 2015, and from a copy that Chairman Clayton Wood made on April 17, 2015, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary