April 21, 2011 Minutes

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

DATE: Thursday, April 21, 2011

AGENDA ITEM 1: Call to Order

Chair Ted Mitchell called the meeting to order at 7:02 P.M.

AGENDA ITEM 2: Roll Call

Members present:

Jim Pritchard (JP, associate member), Pat Heffernan (PH, associate member), Fred Hast (FH, selectmen’s ex-officio), Clayton Wood (CW, vice-chair), Ted Mitchell (TM, chair), Peter Dow (PD, alternate), Michelle Conner (MC, alternate), and Gerard Leduc (GL, selectmen’s ex-officio alternate).

Members absent:

None.

AGENDA ITEM 3: Approval of Minutes of April 7, 2011

CW moved to approve the minutes as written in draft.

PH seconded the motion.

Discussion:

JP said that GL should be added to the roll call of members present.

TM asked for the following changes:
Agenda Item 3 (page 3): change “going become” to “going to become”
Agenda Item 4, a (page 4): change “if the board makes them” to “if the board makes those goals”
Agenda Item 4, a (page 4): change “things that did not pass” to “articles on the March 8 ballot that did not pass”

JP asked if there were a conflict in his voting on minutes that he wrote. The board agreed that there was no conflict.

TM called for a vote on the minutes with the preceding changes.

Vote to approve the minutes of April 7, 2011,with the preceding changes: carried 5 – 0 – 0. (Voting “yes”: JP, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The minutes of April 7, 2011, are approved with the preceding changes.

AGENDA ITEM 4: New Business

AGENDA ITEM 4, a (Dunbarton – Cell Tower) and AGENDA ITEM 4, b (Gilmanton Joint Meeting – Wireless Facility)

TM explained that these matters are just for information unless someone has a comment.

CW noted that the meetings in Dunbarton and Gilmanton are occurring either tonight (Gilmanton) or yesterday (Dunbarton), so the question of Pittsfield Planning Board input to those meetings is moot. Maybe TM should have some authority to act independently on matters like these cell towers because the Pittsfield Planning Board meets only every two weeks.

PH agreed. These things might have some impact on Pittsfield.

CW clarified that TM should have some authority to speak for the board on regional impact matters because such matters are not typical voting matters and because responding in a timely way may not fit in the board’s schedule.

The board agreed that it did not need a specific motion because the board has confidence in TM as chair and because the chair speaks for the board on matters not requiring a vote of the board. TM will notify the board of any action that he takes on a regional impact matter.

FH said that the board has never had to act on any of the 20 to 25 regional impact matters that have come to the board over the years.

AGENDA ITEM 4, c: Selection of Representatives TAC & STIP – CHNRPC

Agenda Item 4, c, is about Nicholas Coates’s e-mail of Friday, April 15, 2011, asking that Pittsfield identify “Pittsfield’s representative on TAC” and “who will be Pittsfield’s representatives (2) on the full commission.” Nicholas Coates is with the Central New Hampshire Regional Planning Commission (CNHRPC).

CW did not understand the abbreviations TAC and STIP.

JP and TM had both e-mailed Nicholas Coates asking what the abbreviations meant. JP had received no reply.

TM received some information from Matt Monahan at last night’s meeting of the economic development committee, but the information was vague. “STIP” means Traffic Improvement Program.

CW suggested deferring this matter until the next meeting when members may be better prepared.

TM agreed.

AGENDA ITEM 4, d: Spring Conference

TM said that he asked the board of selectmen to transfer $210 from the planning board’s budget for recording, and to put that money to training. This transfer added to the existing $150 for training lets six people go to the spring conference in Manchester. TM will worry about later conferences later. Town administrator Paul Skowron told TM that the board’s yearly budget for recording services if the board should have to change its recorder is approximately $5000.

(Editorial explanation by planning board recorder and member Jim Pritchard: The transfer to training is possible because the planning board does not pay its current recorder. But if the board changed its recorder, then the board might have to pay the recorder.)

FH said that the deadline to register for the Manchester conference is in May.

CW said that everyone can go except TM, who has a conflicting commitment.

PH said that several things happen at the conference. PH wanted to know how to sign up for what he wanted.

TM and CW explained that Dee Fritz, the board’s administrative secretary, will notify the conference officials what course a member wants to attend.

FH said that there are six or eight different classes. An attendee picks one for the morning and one for the afternoon, or one all-day class.

AGENDA ITEM 4, e: Stagecoach Condominium Letter Atty. Andrew Sullivan

JP left the board because he opposed AHG Properties in litigation of Stagecoach Condominium. Attorney Andrew Sullivan represents AHG Properties.

TM asked if JP would still take notes? JP asked the board if there were any problem in JP’s taking the notes for the minutes of the Sullivan segment of the board’s meeting. The board agreed that there was no problem.

CW asked to make a statement before the board started. Attorney Sullivan’s request is like one that the board received from a different prior applicant a little over year ago. After much work, several deliberations, and contacting the town attorney, the board decided not to respond. With that history in mind, CW worked on Attorney Sullivan’s questions. CW could find no state statute empowering the board to answer. Answering would do one of two things: at best, the board could give a nonbinding opinion; at worst, the board could contaminate future proceedings. The AHG application is a closed case. The planning board has authority to give an advisory opinion in only two situations: conceptual consultation phase and design review phase. Both situations are preceding or during review of an application. The planning board has no authority to go back to a decision and give an opinion on it. The board should respond by denying the request for a decision on Attorney Sullivan’s questions because the board has no jurisdiction to make that decision, binding or nonbinding. If Attorney Sullivan knows of anything that the board is missing, then he is welcome to come back and tell the board.

TM said that, if the two RSA’s that Attorney Sullivan is concerned about are unclear, then the board does not have jurisdiction to tell him what it means. Attorney Sullivan needs to go to the state for clarification if there is any question.

PH asked what exactly does Attorney Sullivan want?

CW explained that Attorney Sullivan wants to know about RSA 674:39 vesting. It is the grandfather period after the approval. After the vesting period is over, AHG must comply with changes to the zoning ordinance. The board has no jurisdiction to give an opinion, and, at best, the planning board’s opinion would be nonbinding.

PH asked if Attorney Sullivan is asking whether a person has one year or four years? This matter seems done. The court has decided. “Why are they still beating a dead horse on it?”

CW said that PH had asked a good question. Attorney Sullivan is in a better position to tell his client the meaning of a state statute than the board is.

TM does not want to get into it and then pay for making an error in something that is not the board’s jurisdiction.

PH agreed and asked why is the lawyer asking the planning board to figure it out if he cannot figure it out?

TM said that the Town is finished with this issue.

PH suggested sending the matter back to Attorney Sullivan.

CW agreed.

FH explained that the matter is a time limitation. FH asked town administrator Paul Skowron to call town attorney Laura Spector, but she has not answered yet.

CW did not want to involve the town attorney. The board can decide this matter without the town attorney. This matter is similar to an attorney letter that the board received a year ago. The board did a lot of work and research and decided that that matter was outside the board’s jurisdiction. The board does not need a legal opinion on something that is clearly none of the board’s business. If the board, acting independently, asked what the vesting period is, then the board would be in trouble because it would have to have a public hearing on something that had been approved, and Attorney Sullivan must know that. The board certainly could not discuss the vesting period without the Sullivan letter.

PH said that he had once received approval to build a duplex on a lot that he owned. PH said that it was clear that he had a year to build it unless he started work sooner. Wouldn’t the same rule hold for this project? Or is that what Attorney Sullivan is asking?

CW said that that is what Attorney Sullivan is asking, and CW preferred not to discuss the question because it is not the board’s jurisdiction.

PH said that what is in place and what is going on is clear.

CW moved for “Clayton Wood and Ted Mitchell to draft a letter denying answering AHG’s question based on the fact that this is not in the planning board’s jurisdiction.”

FH seconded the motion.

Discussion:

PH noted the two points of law that CW mentioned. This is water under the bridge, and the board has no business getting involved.

CW said that there are some things that a planning board can do after approving an application, but none of them applies now.

FH said that there is a statute letting the planning board “pull that back.”

CW explained that “pull that back” means revocation. The board does not want to discuss revocation. This case was litigated at the supreme court, and the board does not intend to go there. In revocation, the board of selectmen would be the initial enforcement authority.

FH repeated that the planning board has the power to revoke approval after a certain time.

CW agreed but explained that there is a procedure requiring notice and hearing. The board is not revoking approval and does not have jurisdiction on the matter before the board now. If Attorney Sullivan disagrees, then he can come back. CW agreed with PH’s comment: Attorney Sullivan should be able to answer his own questions much better than the board can.

PH said yes. Attorney Sullivan should know better than the planning board.

CW agreed. The board should know where its jurisdiction is.

FH said that the application was approved in January 2007*. Attorney Sullivan is asking about the dates. FH asked town administrator Paul Skowron what town attorney Laura Spector had told Mr. Skowron, but FH never learned what she had said.

(*Editorial explanation by planning board recorder and member Jim Pritchard: The zoning board of adjustment and the planning board made a number of decisions on the AHG project. The planning board’s subdivision approval was the last Town-board approval and was on April 19, 2007.)

TM said that the project went into litigation after the Town approved it.

PH asked if the litigation stretched the deadline, that is the question?

FH said, “Yes.”

TM said, “And the lawyer should know.”

PH said, “One would think.”

Vote to authorize Clayton Wood and Ted Mitchell to draft a letter denying answering AHG’s question based on the fact that this is not in the planning board’s jurisdiction: carried 4 – 0 – 0. (Voting “yes”: PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) CW and TM are authorized to draft a letter denying answering AHG’s question based on the fact that this is not in the planning board’s jurisdiction.

CW and TM apologized to alternates PD and MC for not seating one of them when JP was absent.

AGENDA ITEM 5: WORK SESSION – Warrant Articles 2 – 7

JP returned to the board.

Warrant Article 5: reduction of parking requirements in the “downtown”

TM said that the board had agreed to review the approved articles first. The first is warrant article 5, for reduced parking requirements, printed in the board’s zoning ordinance copy as Article 17, Section 17.3.

FH asked why the “downtown” as defined extends “south of Berry Avenue”?

TM did not know.

CW asked whether the description of the boundaries of the “downtown” as defined was accurate enough to apply the new regulations.

TM said that the board would have to check.

JP said that RSA 674:20 requires that regulations for the use of each kind of building must be uniform throughout each district where the regulations apply. The “downtown” as defined appears to cover only parts of certain districts. If so, then buildings of one kind in the “downtown” will be treated differently than buildings of the same kind outside the “downtown” but in the same district. Thus, the regulation for parking relief in the “downtown” appears to violate RSA 674:20.

JP and TM discussed the effect of violating RSA 674:20. The violation does not affect uses in any district that is wholly inside the “downtown,” because the zoning ordinance has a separability provision. If any district is partly in and partly out of the “downtown” as defined, then any use in that district cannot have parking relief whether the use is in or out of the “downtown.”

CW repeated that the board has to know where the boundaries of the “downtown” are.

FH discussed the purposes of parking relief.

TM repeated that the board could not reduce the parking requirements for anybody in a district partly left out of the “downtown.”

CW said that, if the Commercial District is wholly within the “downtown,” then parking relief is available there at least. Otherwise, there is a problem.

TM agreed to check the boundaries of the “downtown” as defined.

CW said that he did not know where the planning board had authority to grant a conditional use permit.

JP agreed and said that the conditional use permit appears to be in fact a special exception.

FH cited a zoning board of adjustment case where a residential apartment had to have two deeded parking spaces.

JP said that the zoning board of adjustment (“ZBA”) has authority to make a special exception for a use if and only if the zoning ordinance authorizes the ZBA to make special exceptions for that type of use. The ordinance had not authorized the ZBA to make a special exception for parking relief; it had authorized the planning board. But state law does not allow the planning board to make special exceptions. Because neither board—planning board nor ZBA—has jurisdiction to grant the conditional use permit as defined, parking relief cannot be approved anywhere.

CW asked if there were some way to make the conditional-use-permit authority delegated to the planning board work before the problem was fixed next March.

JP thought that the delegation was a fatal error.

FH said that the old ordinance was the same.

JP agreed.

TM suggested deferring further discussion on parking until the board has more information on the potential errors so far uncovered.

CW suggested asking Matt Monahan about where the planning board might get the authority for the conditional use permit.

JP agreed. JP suggested that Matt Monahan may have been thinking of the innovative land use control statute, RSA 674:21. JP thinks that parking is not an innovative land use.

TM will e-mail Matt Monahan and copy to JP.

Warrant Article 6: repeal of the shoreland protection ordinance

PH left the board momentarily at about 7:59 PM.

The board agreed that the repeal was appropriate.

TM declared a short break at 8:00 PM.

TM resumed the meeting at 8:07 PM.

TM and CW noted that there is no discussion on warrant article 6.

PH said that the state has a comprehensive shoreland protection ordinance.

Warrant Article 7: senior housing ordinance

The senior housing ordinance is printed in the board’s zoning ordinance copy as Article 23.

JP said that RSA 354-A:15, Housing for Older Persons, requires that every dwelling unit be normally operated for at least one person aged 55 years or older. The statute does not require such occupancy by someone aged 55 years or older all the time, but the statute does require that such occupancy be the normal mode of operation. The senior housing ordinance, section 23.6, restricts only 75% of the dwelling units to persons aged 55 years or older. JP thinks that this restriction means that 25% of the units do not have to be for people aged 55 years or older. The 25% exception appears to violate RSA 354-A:15.

The board did not have a copy of RSA 354-A:15, so CW made copies and distributed them to the board members and alternates.

The board discussed the affect of violating RSA 354-A:15. The board concluded that the violation exists but is separable. The 25% allowance for people not aged 55 years or older is simply an allowance that an applicant for senior housing cannot have. In reviewing an application, the board will cite RSA 354-A:15.

JP said that the density of one dwelling unit per acre of the parent tract (section 23.7, 2) will often conflict with Zoning Ordinance Article 8. One dwelling unit per acre is higher than the normally allowed density of one dwelling unit per two acres in the Rural District. Thus the lots will be undersize, and Article 23 intends the lots to be clustered. Any subdivision that creates undersize lots must conform to Article 8. Article 8 allows only half the density in the Rural District that Article 23 allows.

TM explained that the board had chosen a density of one dwelling unit per acre because that density would make a senior housing project economically feasible. Less density would be unfeasible. For this choice, the board relied on the opinion of Richard Hunsberger, who is a real estate agent, and who was on the board when it prepared the senior housing ordinance.

FH said that one dwelling unit per acre is a pretty good size.

CW asked if Article 23 would preempt Article 8.

JP said no and cited RSA 676:14.

CW read RSA 676:14: “Whenever a local land use ordinance is enacted or a regulation is adopted which differs from the authority of an existing ordinance or other regulation, the provision which imposes the greater restriction or higher standard shall be controlling.”

JP said that Article 8’s density standard wins the conflict between Articles 23 and 8.

CW asked why does Article 8 have to apply?

JP said, because a density of one dwelling unit per acre requires an undersize lot in the Rural District, and every undersize lot must conform to Article 8.

CW asked if the conclusion were that the developer cannot get the one-to-one density?

JP said yes, except in the Suburban District with municipal water and sewerage.

TM said that either Article 8 or Article 23 must change to be consistent with the other.

JP suggested that the easiest way to way to eliminate the conflict is to merge Articles 8 and 23 as one in Article 8 and to make the exceptions in Article 8 for senior housing.

TM agreed.

FH discussed density considerations depending on the qualities of the land.

JP said that the zoning ordinance must have the density standards.

TM suggested merging Articles 8 and 23 for the March ballot.

CW noted that the time is 8:30 PM. He asked to defer discussion of the warrant articles and go to the remainder of the work session. The board agreed.

AGENDA ITEM 6: Building Inspector Report

TM said that the board is not getting building inspector reports. TM thinks that the board should know what the building inspector is doing.

FH explained that the building inspector is fixing his files from the last inspector. He has given permits for decks and is also doing two buildings.

CW asked why does the board need to know what the building inspector is doing?

TM said that the board should know what its enforcement arm is doing.

PH suggested that FH keep contact with the building inspector and do the board’s building inspector report.

FH agreed.

AGENDA ITEM 7: Selectmen’s Report

FH said that the board of selectmen tax-deeded nine properties. The selectmen are catching up on a backlog of 17 tax-delinquent properties. The town hall first floor remodeling is done.

AGENDA ITEM 8: Members Concerns

Members concern 1: CW’s concern with the web log (“blog”) proposed on April 7, 2011.

CW gave an update on his blog. CW has a design, and it is tested. CW will send a link to members so that the board can approve the blog at the next meeting. The blog can have the town web site format or be on its own. The blog can ask for general input or for input on specific questions. The board can use the blog to get information out or in. The board must approve anything published. Should the board give TM authority to put content in on his own? CW will moderate comments. Off-topic comments may be deleted, not edited. The blog will warn that comments not on town regulations will not be presented. CW noted that TM was talking about putting letters in the newspaper. The board could advertise the blog in the Suncook Valley Sun or put those letters on the blog. The blog can separate feedback by topics, such as zoning. How does the board approve content? The board should not make the blog super complicated. The quicker the blog gets going, the quicker the board will know if the project is worthwhile.

PH asked if the board could track the number of hits?

CW said yes.

Members concern 2: TM’s concern with his proposed letter to the Suncook Valley Sun.

TM asked for feedback on his letter to the Suncook Valley Sun.

CW said that the letter was good, like a mini version of the minutes. Reaching out for public opinion is good.

FH questioned whether the board needs three alternates as the letter says.

PD said that the board may need at least one more alternate because PD and MC may, for some case, both be disqualified by living in the same house.

TM said that he would revise his letter to say that people interested in being alternates should please contact the board.

Members concern 3: CW’s concern with member identification information that should be on the town web site.

CW asked for feedback on the amount of member identification information that should be on the town web site.

CW and TM agreed that the chair and vice-chair would have their e-mail addresses on the web site but not their telephone numbers. The other members will just be names.

Members concern 4: CW’s concern that board members know about The Planning Board in New Hampshire – A Handbook for Local Officials.

CW said that he had put a link on the planning board page of the town web site so that a person could download The Planning Board in New Hampshire – A Handbook for Local Officials, a publication of the New Hampshire Office of Energy and Planning. The handbook is a step-by-step description of the planning board. CW wants Dee Fritz to make paper copies of the handbook for each member.

TM agreed.

AGENDA ITEM 9: Public Input

MC said that she and PD need only one copy of anything that the board prints. MC’s phone number is wrong on the member identification sheet. MC and PD will give their identification information to Dee Fritz.

AGENDA ITEM 10: Adjournment

PH moved to adjourn the meeting.

CW seconded the motion.

Vote to adjourn the planning board meeting of April 21, 2011: carried 5 – 0 – 0. (Voting “yes”: JP, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of April 21, 2011, is adjourned at 8:59 PM.

Minutes approved: May 5, 2011

______________________________ _____________________
Ted Mitchell, Chairman Date

I transcribed these minutes (not verbatim) on April 23, 2011, from notes that I made during the planning board meeting on April 21, 2011, and from copies of the two Town tapes that Chairman Ted Mitchell made on April 22, 2011.

____________________________________________
Jim Pritchard, planning board recorder and associate member

2 Town tapes