April 3, 2014 Minutes

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

DATE: Thursday, April 3, 2014

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;
Bill Miskoe (BM), planning board member; and
Gerard LeDuc (GL), selectmen’s ex officio alternate planning board member.

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

Other town officials present: Jesse Pacheco, building inspector and code enforcement officer.

Members of the public appearing before the planning board: Jim Allard, 540 Tilton Hill 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: Election of Officers

BM nominated CW for chair.

PH seconded the nomination.

There were no other nominations for chair.

Discussion: None.

Vote to elect CW as chair: carried 5 – 0 – 0. (Voting “yes”: JP, PH, CW, BM, and GL. Voting “no”: none. Abstaining: none.)

CW nominated PH for vice-chair.

BM seconded the nomination.

There were no other nominations for vice-chair.

Discussion: None.

Vote to elect PH as vice-chair: carried 5 – 0 – 0. (Voting “yes”: JP, PH, CW, BM, and GL. Voting “no”: none. Abstaining: none.)

CW nominated JP for secretary.

PH seconded the nomination.

There were no other nominations for secretary.

Discussion: None.

Vote to elect JP as secretary: carried 4 – 1 – 0. (Voting “yes”: JP, PH, CW, and GL. Voting “no”: BM. Abstaining: none.)

CW nominated JP for recording secretary.

PH seconded the nomination.

There were no other nominations for recording secretary.

Discussion: None.

Vote to elect JP as recording secretary: carried 4 – 1 – 0. (Voting “yes”: JP, PH, CW, and GL. Voting “no”: BM. Abstaining: none.)

AGENDA ITEM 4: Appointments to Committees

CW said that the town ordinance establishing the housing standards authority (HSA) requires the planning board to have a representative on the housing standards board. CW nominated PH, who is currently the planning board’s representative to the housing standards board, to continue as the planning board’s representative to the housing standards board.

BM seconded the nomination.

Discussion: None.

Vote to elect PH as the planning board’s representative to the housing standards board: carried 5 – 0 – 0. (Voting “yes”: JP, PH, CW, BM, and GL. Voting “no”: none. Abstaining: none.)

CW said that the planning board does not have a formal charter for the master plan committee, which is a subcommittee of the planning board, but that he wanted to acknowledge the master plan committee’s current membership and to have the planning board approve that membership: Ralph Odell, chair; Ted Mitchell, secretary; Paul Metcalf; Helen Schoppmeyer; Merrill Vaughn; CW, planning board representative; and JP, planning board representative.

BM moved to reappoint the current membership of the master plan committee.

PH seconded the motion.

Vote to reappoint the current membership of the master plan committee: carried 5 – 0 – 0. (Voting “yes”: JP, PH, CW, BM, and GL. Voting “no”: none. Abstaining: none.)

CW reminded the board that it had nominated Ted Mitchell and JP on February 6, 2014, as the town’s two representatives to the Central New Hampshire Regional Planning Commission and that the board of selectmen had approved these appointments on February 11, 2014. The two positions have staggered four-year terms, with Ted Mitchell’s term running from 2014 to 2018 and JP’s term running from 2014 to 2016.

AGENDA ITEM 5: Approval of the Minutes of the March 6, 2014 Meeting

BM moved to approve the minutes of March 6, 2014, as written in draft.

PH seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

Vote to approve the minutes of March 6, 2014, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: GL.)

AGENDA ITEM 6: Agenda Review

CW said that he would add three items to tonight’s agenda: (1) a discussion of Joseph and Pauline Cortese’s application for a variance from the four-employees limit of the zoning ordinance’s definition of “home occupation,” (2) what projects the board would want to do this year, and (3) the zoning ordinance as revised by the March 11, 2014, town meeting.

AGENDA ITEM ADDED: The zoning ordinance as revised by the March 11, 2014, town meeting

CW said that he and JP had learned of some omissions in the zoning ordinance’s statement of legislative history (printed at the front of the zoning ordinance document). The statement of legislative history is not part of the zoning ordinance document, but CW wants to correct it before releasing the revised zoning ordinance because CW wants only one copy as the official copy of the zoning ordinance.

CW said that the original zoning ordinance, of 1988, had a table of contents and that the board should restore this feature. The table of contents, like the statement of legislative history, is not actually part of the zoning ordinance.

AGENDA ITEM ADDED: Joseph and Pauline Cortese’s application for a variance from the four-employees limit of the zoning ordinance’s definition of “home occupation”

CW distributed to the board copies of the Corteses’ application for a variance from the four-employees limit of the zoning ordinance’s definition of “home occupation.” The Corteses also filed an application for a special exception for a home occupation with the four-employees limit, and CW distributed to the board copies of this application too. CW noted that the application for a variance answers the question “Will your request require Site Plan approval?” by saying, “TO BE DETERMINED.” CW said that the zoning board of adjustment (ZBA) needs to understand that the planning board has no authority to require site plan review of home occupations, because home occupations are residential uses. RSA 674:43, I, limits the planning board’s authority to review site plans to “tracts for nonresidential uses or for multi-family dwelling units.” CW also said that the application for a variance seeks to increase the number of allowed employees from four to 13. CW said that the four-employees conditions is a defining condition and that the ZBA has no authority to grant a variance from a defining condition; in other words, the ZBA’s variance-granting authority does not empower the ZBA to call a use a home occupation if the use does not meet the zoning ordinance’s definition of “home occupation.” CW said that he wanted the board to authorize him to write a letter to the ZBA telling the ZBA (1) that the planning board has no authority to require site plan review of home occupations and (2) that the planning board thinks that the ZBA’s variance-granting authority does not empower the ZBA to call a use a home occupation if the use does not meet the zoning ordinance’s definition of “home occupation.”

BM said that the Corteses are not trying to change the definition of “home occupation.” They want a variance to go beyond what the definition allows.

JP clarified that CW was not saying that the ZBA’s variance-granting power does not empower the ZBA to grant a variance for the Cortese use; JP said that CW was saying only that the ZBA cannot lawfully call the Cortese use a home occupation.

BM said that the Corteses should apply for a variance to do something other than a home occupation instead of applying for a variance to change the number of employees for a home occupation.

JP said that whether the use is called a home occupation or not is important because home occupations are exempt from site plan review whereas principal business uses are not exempt from site plan review. JP said that the ZBA’s decision finding the use to be a home occupation would not bind the planning board, but, if the ZBA were to say that the use was a home occupation, and if the planning board were to disagree, then the code enforcement officer, Jesse Pacheco, would have to decide which board to heed.

Jesse Pacheco agreed that he would have to decide which board to heed. Jesse Pacheco said that the applicants had decided to apply for a variance to change from four employees to 13 employees without seeking Jesse Pacheco’s advice. Jesse Pacheco said that the variance was problematic in the first place because the Corteses are running a business out of their home but do not have a special exception permit for a home occupation.

CW suggested that PH, who is also a member of the ZBA, recuse himself from this discussion.

Jesse Pacheco said that the Cortese application, which was to have been heard on April 24, 2014, would be heard on May 8, 2014, instead.

BM said that the board should suggest to the ZBA that the Corteses file a new application for a variance for a business called something other than a home occupation.

PH said that he would stay at the board table and listen but not vote on whether to authorize CW to write to the ZBA.

BM said that the question that the planning board is discussing is whether the Corteses cannot request a variance from the four-employees defining condition because the variance becomes a change to the zoning ordinance. If the Corteses cannot request such a variance, then the planning board should suggest that the Corteses request a variance for a business other than a home occupation.

CW said that a variance from the four-employees defining condition would make the business something other than a home occupation. It would be a principal business use subject to site plan review.

BM said that the Corteses should request a variance for a principal business use in a residential district. The business would be subject to site plan review, and the special exception would no longer be necessary.

JP said that it is clear that the Corteses can apply for a variance for almost anything not called a home occupation. JP said that the board should be careful about advising the Corteses what to do. JP said that the ZBA should not accept jurisdiction to call something a home occupation when that something clearly does not meet the definition of “home occupation.” The planning board should be clear (1) that the planning board’s only interest is in whether a use can be called a home occupation if the use does not meet the definition of “home occupation,” (2) that the planning board has this interest because home occupations are exempt from site plan review whereas principal business uses are not exempt, and (3) that the planning board expresses no opinion on whether the use should be permitted as something other than a home occupation.

Jesse Pacheco said that the Corteses have the right apply for a variance or for a four-employees home occupation if the ZBA denies the variance.

JP moved to authorize CW to send a letter to the ZBA saying (1) that the planning board has no authority to require site plan review of home occupations and (2) that the planning board thinks that the ZBA’s variance-granting authority does not empower the ZBA to call a use a home occupation if the use does not meet the zoning ordinance’s definition of “home occupation.”

BM seconded the motion.

Discussion: No further discussion.

Vote to authorize CW to send a letter to the ZBA saying (1) that the planning board has no authority to require site plan review of home occupations and (2) that the planning board thinks that the ZBA’s variance-granting authority does not empower the ZBA to call a use a home occupation if the use does not meet the zoning ordinance’s definition of “home occupation”: carried 4 – 0 – 1. (Voting “yes”: JP, CW, BM, and GL. Voting “no”: none. Abstaining: PH.)

PH did not participate in the discussion of the Cortese application.

AGENDA ITEM 7: Commercial District Focus

CW said that the board had two approaches addressing how to revive the downtown: (1) BM’s proposal to allow lots in the Commercial District to be purely residential by right under the zoning ordinance and (2) to preserve the existing use structure of the Commercial District as a commercial district.

CW said that people answering the master plan questionnaire and everyone to whom he had spoken wanted to preserve the Commercial District as a commercial district.

BM thought that residential uses other than as a combined dwelling and business should be allowed in the Commercial District because institutional uses such as the churches, the town hall, and stuff like that are not commercial and because 85% of the remainder of the Commercial District is residential. If the town changes the zoning ordinance to allow residential uses other than as a combined dwelling and business, then the town would have a tool to regulate the residential uses.

CW read the description and purposes of the Commercial District as stated in article 2 of the zoning ordinance. The institutional uses—the post office, the town hall, the library and such—belong in the Commercial District. CW cited the planning board’s site plan review regulations and said that the board had not been following them when new apartments were added to multi-family dwellings.

Jesse Pacheco said that BM’s proposal would result in residences replacing all existing commerce. If the economy improves, then businesses will have no place to locate on Main Street.

JP said that zoning is protection and that it protects in a variety of ways. Everyone knows that zoning protects residential districts by not allowing commercial uses there, but, at the same time, zoning protects commercial districts by encouraging major commercial uses to locate there. Granting variances freely for residential uses in the Commercial District obviously undermines the district, but granting variances freely for major commercial uses in the residential districts also undermines the Commercial District because these variances remove the encouragement for major commercial uses to locate in the Commercial District. JP said that he did not know how permitting residential uses in the Commercial District would enable the town to regulate them. The town would open itself to accusations of exclusionary practices if the town tried to regulate residential uses.

Jesse Pacheco said that more apartments in the downtown would increase the town’s burden.

CW disagreed with BM’s proposal to restructure uses allowed in the Commercial District.

Jesse Pacheco agreed with JP’s analysis of granting variances freely.

CW said that the board should examine the definition of “combined dwelling and business” to see how this use might be changed to help both individual businesses and the Commercial District as a whole.

Jesse Pacheco said that keeping the storefronts on Main Street clean is crucial to maintaining viable commerce.

CW said that the town must be sure that the town properly scrutinizes all new apartments in the Commercial Districts. The town boards have not been doing this.

Jesse Pacheco said that, once the apartments are licensed, it is too late for town boards to question them.

BM said that residences cannot improve because they are all nonconforming and because they will lose their grandfathering if they improve. An investor cannot raze a lot and then receive RSA 79-E (tax relief) support to build high-quality residences. Permitting residences by right would remove this impediment to investment, and the investment would force other property owners to upgrade in order to remain in the market. BM said that his idea might not be good, but at least his idea is new. The town needs new ideas. The town should give his idea a chance.

JP asked for clarification that BM was proposing to allow a residence as the only principal use on a lot.

BM said yes.

JP asked whether BM proposed to seek the grant that he described on February 6, 2014, before or after the town rezoned the Commercial District.

BM said that the rezoning would have to happen first because no one would give a grant for a prohibited use. BM acknowledged that his proposal is risky.

Jesse Pacheco said that the town would not be able to fix problems resulting from BM’s proposal if BM’s proposal did not work.

JP said that he had researched whether grant money was available for BM’s proposal. JP had researched on the Internet and had talked to Matt Monahan, of Central New Hampshire Regional Planning Commission. JP had found nothing.

CW said that the master plan questionnaire indicated overwhelming support to maintain the Commercial District as a commercial district. The town meeting would never approve BM’s proposal. The planning board should focus on tailoring the definition of “combined dwelling and business” to provide incentives to business. This approach has the advantage of relying on a use that the zoning ordinance already permits in the Commercial District.

Jesse Pacheco said that Pittsfield is not a good investment opportunity for builders. Jesse Pacheco said that he is a builder and in a position to know.

JP said that he wanted to preserve the Commercial District as a commercial district. JP said that the board had not found any grant money for BM’s proposal. No parking spaces exist for the high-rent tenants. JP thought that BM’s proposal would not attract investment.

PH referred to the master plan questionnaire and said that what the townspeople want is clear. PH said that he knew people in a position to invest. They are not interested in Pittsfield because of its very high tax rate. PH said that preserving the Commercial District as a commercial district made more sense than encouraging residential redevelopment there.

BM said that he was proposing to use RSA 79-E to offset the high tax rate. BM said that the master plan questionnaire’s question on supporting commercial uses is loaded:

“Are you in favor of Pittsfield trying to encourage commercial/industrial uses (nonresidential growth) to broaden its tax base?”

This question is like saying, “Are you in favor of getting rich?” Nothing is wrong with commercial residential growth. It can broaden the tax base.

CW said that property tax assessments do not depend on what use happens on the property.

Jesse Pacheco repeated that more apartments in the downtown would increase the town’s burden.

JP repeated his earlier analysis of zoning as protection. When the town grants variances freely for residences in the Commercial District, the harm there is obvious. When the town grants variances freely for major commercial uses in the rural, residential areas, those variances also harm the Commercial District because they remove the incentive for major commercial uses to locate in the Commercial District. JP said that the town should give zoning a chance to work instead of restructuring the uses permitted in the Commercial District.

CW said that the town needed to begin being consistent. The town’s past inconsistency has caused many problems.

Jesse Pacheco said that people who are looking for places to invest are not interested in Pittsfield.

CW said that other towns have their regulations, those towns enforce their regulations, and those towns are doing well.

Jesse Pacheco said that enforcing regulations consistently works because consistent enforcement lets people know that the town will protect the neighborhoods and property values.

Jesse Pacheco and CW discussed that developers think that Pittsfield’s land use regulators are incompetent.

CW said that he wanted to bring to the all-boards meeting a discussion of how to make zoning in the Commercial District work.

BM acknowledged and agreed with JP’s analysis of zoning as protection. When the town grants variances freely for major commercial uses in the outlying residential areas, these variances undermine the Commercial District, where the uses would be permitted by right. The planning board, the zoning board of adjustment, the economic development committee, and the all-boards meeting need to understand this problem.

Jesse Pacheco said that the home occupation regulation is intended to nurture small business, but, once the business has outgrown its residential character, the business should move to a commercial location.

CW said that the board consensus was that it would move forward trying to preserve the Commercial District as a commercial district and to contain the proliferation of nonconforming uses.

AGENDA ITEM 8: Selectman’s Report – Eric Nilsson, Selectman Ex Officio – Gerard LeDuc, Alternate

GL said that the board of selectmen will interview tomorrow the four remaining finalists for the town administrator’s position.

GL said that Rustic Crust’s building destroyed by fire has been completely razed. The board of selectmen will give Rustic Crust RSA 79-E tax relief to rebuild.

CW, Jesse Pacheco, and BM discussed Rustic Crust’s rebuilding on a nonconforming lot, in protected shoreland, and in a floodplain.

Jesse Pacheco said that Rustic Crust would begin producing product at their new, temporary facility on Monday, April 7, 2014.

AGENDA ITEM 9: Members’ Concerns

CW said that he wanted to put the rules of procedure, a class VI highway development policy, and an automatic waiver of site plan review regulations on the board’s to-do list for this year.

JP said that would like to finish revising the zoning ordinance sometime. JP noted that the project had been taking a very long time.

AGENDA ITEM 10: Public Input

Jim Allard said that this meeting was the first planning board meeting that he had ever attended, and that the experience had been very illuminating. Jim Allard and board members reviewed the board’s discussion of the Commercial District.

AGENDA ITEM 11: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of April 3, 2014: carried 5 – 0 – 0. (Voting “yes”: JP, PH, CW, BM, and GL. Voting “no”: none. Abstaining: none.) The planning board meeting of April 3, 2014, is adjourned at 8:32 P.M.

Minutes approved: May 1, 2014

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on April 5, 2014, from notes that I made during the planning board meeting on April 3, 2014, and from a copy that Chairman Clayton Wood made on April 4, 2014, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary