August 4, 2011 Minutes

Pittsfield Planning Board
Town Hall, 85 Main Street
Pittsfield, NH 03263

DATE: Thursday, August 4, 2011

AGENDA ITEM 1: Call to Order

Chair Ted Mitchell called the meeting to order at 7:08 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), Ray Conner (RC, alternate), and Peter Dow (PD, alternate).

Members absent: Gerard Leduc (GL, selectmen’s ex-officio alternate).

AGENDA ITEM 3: Public Input

No public input.

AGENDA ITEM 4: Approval of Minutes of July 21, 2011

CW moved to approve the minutes of July 21, 2011, as written in draft.

JP seconded the motion.

Discussion:

JP asked for the following change:
Agenda Item 5 (page 2): add “(See planning board minutes of June 2, 2011.)” after “the useful floor areas of the buildings.”

TM called for a vote on the minutes with the change that JP requested.

Vote to approve the minutes of July 21, 2011,with the change that JP requested: carried 4 – 0 – 1. (Voting “yes”: JP, PH, TM, and CW. Voting “no”: none. Abstaining: FH.) The minutes of July 21, 2011, are approved with the change that JP requested.

AGENDA ITEM 5: New Business
a. Rules of Procedures – Use of Alternates
b. Town of Durham – Site Plan Review

AGENDA ITEM 5, a: Rules of Procedures – Use of Alternates

TM suggested letting alternates participate in all ways except motions and votes.

CW said that he had first thought that letting alternates sit for deliberation would be a good idea, but then he began to have doubts. CW is now not sure that alternates should participate outside of work sessions. The board had agreed that all members of the public, including alternates, could participate in work sessions. Deliberations are complicated just as they are now with active participation from the public. There could be five alternates seated with five board members. 10 people seated would confuse the public. The public would not know who the decision makers are. The public should know who the decision makers are and whom the public must convince. The alternates can already participate as members of the public. The alternates learn by attending but do not learn much by sitting. The recent alternates have been very good. If the alternates sit, then the public will be confused.

TM agreed that alternates sitting would confuse the public.

CW said that board meetings can be emotionally charged. Currently, there is a clear divide between the board and the public. Letting alternates sit and ask questions would blur that divide. Things would get worse, not better.

TM agreed that the public would be confused and would wonder who votes.

CW said that the deliberations now are regimented. The public knows who must be convinced. Furthermore, there are ramifications. Alternates may give a sense of how they would be inclined to vote. Then, if a member has to recuse himself…

TM said, then the chair looks as if he is “stacking the deck.”

CW said yes. The chair has a lot of power. At first CW favored letting alternates sit for deliberations, but now CW opposes letting alternates sit for deliberations. A clear distinction between who decides and who does not sit is better.

TM asked for clarification that, in CW’s discussion, alternates not sitting could voice their opinions as members of the public.

CW said that the board cannot prevent the alternates from voicing their opinions as members of the public. CW is not trying to prevent the alternates from voicing their opinions as members of the public.

JP said that it was he who, two years ago, had persuaded the board to reverse its policy of excluding members of the public from work sessions. Anyone who cares enough to come to a work session should get to participate. The board did not codify this policy in the rules of procedure; perhaps the board should codify it now. That way, the alternates would get to participate in work sessions automatically. If the board makes that change, then the board does not have to add a special participation for alternates. JP agreed with CW: alternates participating specially in deliberations would just cause confusion. If several people were deliberating on an application and if JP were in the audience, then JP would be confused and would not like to see people who were not elected helping to decide the application. JP also shared the concern about the chair having more power to “stack the deck.” JP thinks that giving the chair that power would look bad in the public perception.

TM asked if revising the rules to let members of the public participate in work sessions would satisfy the new state law RSA 673:6, V, and RSA 676:1?

JP said that, to be sure of satisfying the state law, the board should probably say that members of the public can participate in work sessions and then say that alternates can participate in any planning board meeting in the same manner as members of the public.

CW said that the board did not have to have the exact language now. If the board could agree on the concept, then the board could authorize JP to turn the concept into preliminary language for the board to consider at the next meeting. CW moved the board to continue to follow its current procedures regarding alternates.

TM said that CW’s motion is basically to maintain the status quo.

CW said that the alternates can basically be involved as members of the public.

JP seconded CW’s motion.

Discussion:

PH said that the alternates are taking time to participate without any pizzazz. Letting them participate in the discussion is the least that the board can do.

CW said that a deliberation is really what the board can vote on. On any given night of a work session, the planning board actually votes on very little. In a work session, the chair can recognize the alternates at any time. The board wants the alternates’ input in work sessions. The board actually takes very few official votes. Public hearings for subdivision or site plan applications are the most important votes.

FH said that the alternates should be participating in this discussion.

PH asked for clarification that alternates would be involved in discussions but as members of the public.

TM said yes.

JP asked PD and RC if they understood that they could participate in this discussion of alternates participating, because the discussion is in a work session?

PD and RC nodded yes.

TM called for a vote on CW’s motion that the board will continue to follow its current procedures regarding alternates.

Vote that the board will continue to follow its current procedures regarding alternates: carried 5 – 0 – 0. (Voting “yes”: JP, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The board will continue to follow its current procedures regarding alternates.

The board agreed that JP will compose some preliminary language that the board can consider to turn the concept vote into an amendment to the rules of procedure.

FH said that the rules are mistaken in saying that a quorum is four members. Four members were a quorum for a seven-member board, but three members are a quorum for a five-member board.

JP asked if the board wanted JP to make necessary adjustments for a five-member board?

TM said yes.

PH left the board to receive a telephone call.

PD said that he would like to sit at the applicant’s table because sitting there is more comfortable.

TM said that the alternates can sit at the applicant’s table.

PD agreed that alternates should not participate in voting matters.

TM said that board members sometimes have to think about issues from the perspective of people sitting in the audience.

CW said that thinking about how to implement a new rule was important. CW cited the parking-regulations and senior-housing examples. The board had not done that analysis last year. CW had first favored letting the alternates sit. Then, after analysis, CW changed his mind and thought about what would happen if several alternates were sitting. The public would wonder who they were and why they were deliberating without having been elected.
RC said that that reaction had happened when she was sitting in place of JP for the Mud Run application.

CW said that RC sitting in that situation was different because RC was sitting in place of a disqualified member. The key lesson is to think about how to implement a new rule before adopting it. The devil is in the details.

TM asked board members to read the rules of procedure in preparation for the next meeting.

JP clarified that he would limit his work to the two issues—alternates participating and board size—that the board had authorized.

TM asked JP to consider any other obvious errors.

PH returned from his telephone call and apologized for the interruption.

AGENDA ITEM 5, b: Town of Durham – Site Plan Review

The Durham Planning Board notified the Pittsfield Planning Board as follows:

“The Durham Planning Board will meet on Wednesday, August 10, 2011 at 7:00 p.m. in the Council Chambers of the Durham Town Hall, Durham, NH to consider the following application:

“Acceptance Consideration** of an Application for Site Plan Review submitted by Metro PCS, LLC, Chelmsford, Massachusetts on behalf of Raymond Laroche, Durham, New Hampshire to install a personal wireless communication on his property. The property involved is shown on Tax Map 18, Lot 1-2, is located at 37-41 Bennett Road, and is in the Rural Zoning District.”

FH moved that the Durham telecommunications project has no regional impact to Pittsfield.

JP seconded the motion.

Discussion: None.

Vote that the Durham telecommunications project has no regional impact to Pittsfield: carried 5 – 0 – 0. (Voting “yes”: JP, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The planning board finds that the Durham telecommunications project has no regional impact to Pittsfield.

AGENDA ITEM ADDED: Fall Conference of the Office of Energy and Planning.

TM said that the Office of Energy and Planning would not have a Fall Conference.

AGENDA ITEM 6: Work Session
a. Definition of “Frontage”

TM said that JP could begin the discussion if JP wished.

JP thanked TM and stated that he (JP) had a lot of documentation showing the origin of a definition that JP had proposed to the board two years ago. JP distributed the following documents to board members and alternates:

1. New Hampshire Practice, third edition, page 414.
2. Letter of Kerrie Diers, Executive Director, Central New Hampshire Regional Planning Commission, to the Pittsfield Planning Board, dated December 14, 2004, page 2.
3. Minutes of the October 4, 1990, meeting of the Pittsfield Planning Board.
4. Notice of Decision of the Pittsfield Zoning Board of Adjustment, October 24, 1990, Case Number 90-005, granting a variance from the frontage requirement of Zoning Ordinance Article 2, Table 2, to Larry Stockman, Lot R-44-1A.
5. Subdivision plan of Larry Stockman, Merrimack County Registry of Deeds plan number 11857.

(Editorial explanation by planning board recorder and member Jim Pritchard: Page 2 of the Diers letter is dated December 9, 2004. Page 1 of the Diers letter is dated December 14, 2004.)

JP read from the page from New Hampshire Practice. That page explains the difference between allowing building on class VI highways and allowing subdivision on class VI highways: “Even when building is allowed on Class VI highways, subdivision will generally be prohibited. … Few of the equitable arguments in support of an individual who has paid taxes on an existing lot for a number of years and simply wants to construct a single-family home can be mustered by an individual wishing to subdivide.” New Hampshire Practice also says, “The basic purpose for requiring frontage on a Class V highway or better, is to ensure that a dwelling may be reached by the fire department, police department, and other agencies charged with the responsibilities of protecting the public peace, safety, and welfare. That purpose is defeated if the purported access route is not suitable for travel.”

FH described the town’s practice for allowing building on existing lots on class VI highways.

JP said that the “frontage” definition would define the frontage requirement for subdivision but not for building on existing lots because Zoning Ordinance Article 4 grandfathers existing lots.

FH said that the town’s current regulations allow building on existing lots on class VI highways but do not allow subdivision on class VI highways.

JP said that former town attorney Tim Bates disagreed with FH. Tim Bates’ advice started the town’s problem with frontage.

JP explained that, when Pittsfield had adopted the zoning ordinance in 1988, the town understood that “frontage” meant class V or better highway frontage. JP said that the planning board minutes of October 4, 1990; the zoning board of adjustment decision of October 24, 1990; and the Stockman subdivision plan showed that the town applied the frontage requirement as class V or better highway frontage. Article 2, Table 2, requires a 225-foot frontage in the Rural District where the Stockman variance lot (R-44-1A) is located. The variance lot borders a class VI highway for 252.16 feet, but this street boundary does not, according to the planning board and ZBA documents, satisfy the 225-foot frontage requirement of Article 2, Table 2.

The board briefly discussed the planning board minutes, the ZBA decision, and the subdivision plan and how these documents implied that Article 2, Table 2, required class V or better highway frontage.

CW said, “What you’re saying is that the planning board back in 1990 realized that they could not subdivide on a class VI road.”

JP said, “Right. And that practice continued until 2003, when the town attorney Tim Bates wrote a letter to the planning board stating that the planning board need not follow the practice any more because the failure of the zoning ordinance to define ‘frontage’ meant that all [a lot] had to do was have a length of frontage, but the frontage could be on anything.”

CW said that, under RSA 674:41, a lot owner has the right to build on a class V highway, but a lot owner has no right to build on a class VI highway.

FH said that any property owner wanting to reclassify a class VI highway as class V must improve the road to town standards.

JP discussed the difference between allowing building on an existing lot and allowing subdivision. A property owner who simply builds on a class VI highway takes his own safety risk. By contrast, a subdivider does not take the safety risk himself; he passes that risk on to someone else when the subdivider sells the lots. The buyers assume that the planning board, through its power to regulate subdivision, has been diligent in assuring safe development.

FH and JP became involved in a lengthy and off-topic discussion of the Bicknell subdivision (approved June 7, 2007) on Governor’s Road. In brief, FH said that the Bicknell subdivision had been conditionally approved on condition of certain road improvements to Governor’s Road. JP, who lives on Governor’s Road, was surprised and said that no road improvement had happened and that individual lots were for sale. TM said that perhaps the board should investigate whether the property owner is trying to sell lots in an unapproved subdivision.

PD asked about construction standards for class V highways.

JP said that there are no construction standards for class V highways per se. Class V just means that the municipality maintains the road. JP said that the subdivision regulations require dedications to widen narrow roads. This requirement makes sense only if subdivision is restricted to class V highways.

PD asked for confirmation that a class VI highway is any highway that the town does not maintain.

JP said yes.

FH offered Thompson Road off Tilton Hill Road as an example of a class VI highway.

TM interrupted the discussion to recognize Ralph Odell, chair of the master plan committee.

AGENDA ITEM ADDED: Progress report from Ralph Odell, chair of the master plan committee.

Ralph Odell said that the master plan committee had met, and its members were Helen Schoppmeyer, Paul Metcalf, Merrill Vaughn, and Ralph Odell. The RSAs say that the master plan committee should have a member of the planning board.

CW asked when does the master plan committee meet?

Ralph said that the master plan committee meets each second and fourth Monday of the month, from 7:00 PM to 8:00 PM.

CW asked how large the committee is normally?

Ralph said that the committee would like to have six or seven members. A distribution of age groups, interests, and so forth would be good. Ralph continued on to say that the RSAs require the town to solicit input from the townspeople about their vision for the future of the town. Ralph researched how other towns were getting this input, and he found an interesting survey in Chichester. The U.S. census has more detailed information than the census had 10 years ago. However the master plan committee does a survey, the survey will cost money. A survey will cost at least $1.00 per envelope, and probably more.

CW said that the board has no budget. The board would have to go to the board of selectmen.

TM asked how many households are in Pittsfield.

Ralph said approximately 1400 to 1500 households. Chichester received over 400 responses. Ralph asked whether the master plan committee could use the Central New Hampshire Regional Planning Commission without causing the town to be billed.

TM and FH said yes.

TM asked when would the master plan committee have a sample survey?

Ralph said probably March or April.

TM asked if anyone would volunteer for the master plan committee?

FH said that he was otherwise engaged when the master plan committee meets.

JP said that he was preoccupied with the planning board’s minutes.

PH said that he was preoccupied with the Housing Standards Authority.

TM said that he would join the master plan committee.

RC expressed interest in attending the master plan committee meetings.

AGENDA ITEM 6: Work Session
b. Definition of “Frontage” (resumed)

JP asked whether the board could agree that the zoning ordinance should require class V or better highway frontage for subdivision?

TM said that he agreed.

PD asked whether such a requirement would preclude a variance.

JP said no.

The board agreed that the zoning ordinance should require class V or better highway frontage if the zoning ordinance did not precluding building on existing lots on class VI highways.

JP said that the Diers letter proposed a “frontage” definition that was the origin of the definition that JP proposed two years ago. The Diers definition is as follows:

FRONTAGE: The length of the lot bordering on a public street or non-interstate highway categorized as Class I, Class II or Class V pursuant to RSA 229, and from which access is legally available. Frontage shall be defined and measured as a continuous line between side lot lines along the edge of a single street right-of-way. Access to the lot must be from the defined frontage. The area along a Class VI highway, private driveway or water body shall not be used in determining frontage. Each lot and dwelling unit per the requirements of this ordinance shall have required frontage as stated in Article 2 Table 2 of this Ordinance, unless a legal non-conforming lot of record.

The Diers “frontage” definition presents the essential features of the frontage of a lot: (1) the frontage is a boundary of a class V or better highway, (2) the frontage crosses the access route from the street into the lot, (3) the frontage is at the single front side of the lot (“between side lot lines”), (4) the frontage endpoints are defined, and (5) the frontage is both the street-boundary segment and the length of that segment.

PH asked whether a corner lot would have two frontages, or, if not, which street boundary would be the frontage?

JP said that a corner lot has only one frontage according to the Diers definition. Defining which side of an arbitrary-size corner lot is the front raises many geometric considerations. JP does not recommend trying to define the front of an arbitrary-size corner lot because, for 99% of all lots, the front will be obvious. JP does not recommend using the Diers definition verbatim because the definition has a few technical wording problems, but JP thinks that the Diers definition is exactly appropriate in concept.

The board agreed that trying to define the front of a corner lot is neither necessary nor desirable at this time because the important thing is to get a usable definition that unambiguously covers almost all situations.

JP said that, if the board agreed with the Diers definition in concept, then JP had a rewrite of it to propose. JP gave a copy of the following definition to each board member and alternate:

FRONTAGE:
(a) “FRONTAGE” of a LOT means the class V or better highway FRONTAGE of the LOT except where the word “FRONTAGE” is qualified otherwise, for example, water frontage.
(b) “Class V or better highway FRONTAGE” of a LOT means the single STREET-boundary segment
(1) that extends along the front of the LOT for the whole length of the STREET-boundary segment,
(2) that bounds a class V (RSA 229:5, VI) or better highway for the whole length of the STREET-boundary segment,
(3) that crosses the principal access route into the LOT, and
(4) that ends at either an interior LOT line endpoint, a STREET-boundary corner or corner approximation, or where the status of the highway as class V or better ends.
For the purposes of this subparagraph, the front of a LOT has no corner or corner approximation between the endpoints of the front.
(c) “Class V or better highway FRONTAGE” of a LOT also means the length of the STREET-boundary segment defined in subparagraph (b).

PD asked what a “corner approximation” was.

JP said that a street-boundary corner generally means that the road has changed direction by 45 degrees or more.

FH cited a street-boundary corner of approximately 45 degrees on Mountain Road.

PD asked about the importance of the “front” of a lot.

JP explained that the “front” relates both to lot size and to access. To be a consistent indicator of lot size, the frontage of a corner lot should be on a side that corresponds to an analogous side of an interior lot. Also, the front of the lot typically has the access to the lot and typically is the side that the front of the house faces. The front of the house typically has the main entrance to the house. Thus, an emergency responder, such as an ambulance, that goes to a house will go first to the front of the lot to find the most direct way to enter the house.

The board had no further objections or questions.

TM asked if there were a motion to accept the “frontage” definition?

CW moved to accept the “frontage” definition that JP proposed.

PH seconded the motion.

Discussion: No further discussion.

Vote to accept the “frontage” definition that JP proposed: carried 5 – 0 – 0. (Voting “yes”: JP, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The planning board accepts the “frontage” definition that JP proposed.

TM asked if the “frontage” definition would go on the web site?

CW said yes.

JP asked about the other material, Articles 5, 6, and 7?

CW said that he was trying to put Article 16 on the web site with an explanation of the problems that the board had found and how the board had corrected them. CW would like to leave Articles 5, 6, and 7 off right now to simplify matters. CW will put on just Article 16 and the “frontage” definition.

AGENDA ITEM 7: Building Inspector Report

TM reported that the town has no building inspector.

AGENDA ITEM 8: Selectmen’s Report – Fred Hast, Selectman Ex Officio

FH reported that he was absent from the last selectmen’s meeting.

AGENDA ITEM 9: Members Concerns
a. Sun Article
b. 14 Depot Street

Members concern 1: TM’s letter to the Suncook Valley Sun.

In brief, TM’s letter to the Suncook Valley Sun states (1) the definitions that the board agreed to propose for “principal floor area” and “street,” (2) the on-street parking credit defined in draft Article 16, and (3) the board’s plans to discuss alternates participating in planning board meetings.

The board agreed to make the following changes to TM’s letter:

(1) Add “Street” below “Floor Area, Principal” near the top of the letter.
(2) Use commas instead of semicolons in the series of exclusions in the “principal floor area” definition.
(3) Change “A mathematical formula” to “An allocation based on floor area.”
(4) Change “and hopefully decided upon” to “at.”

Members concern 2: TM’s concern with the open cellars at 14 Depot Street.

TM distributed a letter from Steven Whitley, of Mitchell Municipal Group (the town’s legal counsel), dated July 25, 2011, to Paul Skowron, town administrator. In brief, the letter says that the board of selectmen, not the planning board, has code enforcement responsibility at 14 Depot Street. The reasons for this conclusion are because the 14 Depot Street project was grandfathered relative to use at the time of site plan approval (so that the project was automatically entitled to site plan approval), and because Zoning Ordinance Article 23 empowers the selectmen to decide whether or not the 14 Depot Street project is still grandfathered. These reasons are the same reasons that TM gave in his letter to the selectmen. (See planning board minutes of June 2, 2011, Agenda Item 7, Members concern 2.)

Members concern 3: TM’s concern with thanking the Suncook Valley Sun.

TM said that he would like to write a letter thanking the Suncook Valley Sun for printing the board’s regular letters to Pittsfield residents.

Members concern 4: TM’s concern with Paul Metcalf’s sandpit.

JP disqualified himself and left the board.

PD sat in place of JP.

TM said that, before the last selectmen’s meeting, Ed Vien had asked what the planning board was doing about Paul Metcalf’s sandpit on Tan Road. The retention pools are not sufficient to prevent water runoff from washing out Tan Road. TM will discuss the matter with the road agent, George Bachelder.

FH said that the state had examined the site three years ago and had set guidelines.

TM said that he should talk to the state and find out their recommendations.

PH asked what is the planning board’ responsibility.

TM said that the board has some authority, but the state controls sandpits.

FH said that the land is in current use assessment. If the use changes, then the land must come out of current use assessment. The town is getting 2 cents per cubic yard of gravel.

TM said that he would have an update next week.

Members concern 5: CW’s concern with rescheduling the next planning board meeting.

CW asked the board to reschedule the next meeting to Wednesday, August 17.

The board agreed.

AGENDA ITEM 10: Public Input

RC asked what had happened to the former building inspector Dan Kramer.

TM said that Dan had gotten a full-time job in Londonderry.

RC asked about the prospect of sharing a building inspector with another town.

TM said that such sharing might happen. Currently, the town is advertising for a part-time building inspector.

CW said that the part-time employment has not been working out.

RC asked who was responsible for hiring the building inspector.

TM said that the board of selectmen was responsible.

AGENDA ITEM 11: Adjournment

CW moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of August 4, 2011: carried 5 – 0 – 0. (Voting “yes”: PD, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of August 4, 2011, is adjourned at 9:01 PM.

Minutes approved: August 17, 2011

______________________________ _____________________
Ted Mitchell, Chairman Date

I transcribed these minutes (not verbatim) on August 10, 2011, from notes that I made during the planning board meeting on August 4, 2011, and from copies of the two Town tapes that Chairman Ted Mitchell made on August 5, 2011.