August 7, 2014 Minutes

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

DATE: Thursday, August 7, 2014

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:08 P.M.

AGENDA ITEM 2: Roll Call

Planning board members present:
Clayton Wood (CW), planning board member and chair;
Jim Pritchard (JP), planning board member and secretary; and
Bill Miskoe (BM), planning board member.

Planning board members absent:

Pat Heffernan (PH), planning board member and vice-chair;
Eric Nilsson (EN), selectmen’s ex officio planning board member; and
Gerard LeDuc (GL), selectmen’s ex officio alternate planning board member.

The planning board has no alternates at this time.

Other town officials present: None.

Members of the public appearing before the planning board: Roland Carter, 520 Tilton Hill Road, Pittsfield, NH, and Paul Zuzgo, agent for Keath and Patricia Wood, 275 Shaw 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: Agenda Review

CW said that Roland Carter had applied for appointment as an alternate to the planning board.

AGENDA ITEM ADDED: Appointment of Roland Carter as an alternate to the planning board

CW nominated Roland Carter for appointment as an alternate to the planning board for the 3-year term ending in March 2017.

BM encouraged Roland Carter to join the board as an alternate. BM asked Roland Carter to tell the board about himself.

Roland Carter said that he has his own business selling parts and supplies for heavy equipment. His business takes him all over New England.

BM said that the board has regular meetings on the first Thursday of the month and occasionally has special meetings on the third Thursday of the month.

Roland Carter said that this schedule was no problem for him.

Vote to appoint Roland Carter as an alternate to the planning board for the 3-year term ending in March 2017: carried 3 – 0 – 0. (Voting “yes”: JP, CW, and BM. Voting “no”: none. Abstaining: none.)

CW told Roland Carter that Roland Carter would have to be sworn into office before he could sit as an alternate. (RSA 42:1.) CW explained that Roland Carter can sit for any of the elected regular board members but cannot sit for the selectmen’s ex officio board member.

BM said that alternates sit not only when regular board members are absent but also when regular board members are disqualified.

AGENDA ITEM ADDED: The law lecture series of the New Hampshire Municipal Association.

CW said that he and PH would attend the first two law lectures in a series of three law lectures that the New Hampshire Municipal Association would give in the fall. The titles of the lectures are (1) The ZBA in New Hampshire, (2) How to Run a Land Use Board, and (3) Impact Fees in New Hampshire. The dates and places of the lectures are September 3, 10, and 17 in Dover and October 1, 8, and 15 in Derry.

JP said that he had e-mailed CW that JP would attend the first two lectures too.

BM said that he would not attend any of the lectures.

AGENDA ITEM ADDED: The wireless communications facility in Gilford.

CW said that the Town of Gilford had given notice that New Cingular Wireless PCS, LLC, doing business as AT&T Mobility, and American Tower Corporation, LLC, are seeking approval to install a new personal wireless communications facility consisting of a 150-foot monopole-style tower within a 50-foot by 50-foot fenced equipment compound. The facility is proposed to be located on property owned by Traditional Catholics of New Hampshire off Stark Street, assessor’s map 202, lot 3. The facility requires a variance from the terms of the Gilford Zoning Ordinance, and the Gilford Zoning Board of Adjustment held a hearing on the variance on July 29, 2014, and the Gilford Planning Board held a hearing on the project on July 21, 2014.

JP moved the Pittsfield Planning Board to find that the Gilford wireless communications project is not regional impact to Pittsfield.

CW seconded the motion.

Discussion: None.

Vote that the Gilford wireless communications project is not regional impact to Pittsfield: carried 3 – 0 – 0. (Voting “yes”: JP, CW, and BM. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 4: Approval of the Minutes of the July 10, 2014 Meeting

BM moved to approve the minutes of July 10, 2014, as written in draft.

CW seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

Vote to approve the minutes of July 10, 2014, as written in draft: carried 3 – 0 – 0. (Voting “yes”: JP, CW, and BM. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 5: Application by Keath & Patricia Wood, 275 Shaw Road, Pittsfield NH 03263 for a Major Subdivision on the same parcel of land (Tax Map R3, Lot 5-5) to create three (3) Residential Lots in a RURAL Zone.
1. Review for completeness and acceptance by the board
2. Public hearing if the application is accepted by the board
3. Application review based on merit

CW told Paul Zuzgo that the board was short two members, and CW asked Paul Zuzgo whether he wanted to proceed with only three board members.

Paul Zuzgo said that he wanted to proceed.

CW read the notice of completeness review and merits review if the board determines that the subdivision application is complete. CW confirmed that the board had given notice to the abutters and to the public. (See RSA 676:4, I, (d).) The board posted notice in the town hall on July 24, 2014, and in the Concord Monitor on July 26, 2014.

BM said that he had been on the board years ago when the Woods applied for subdivision approval of the same property (in 2005). BM said that his presence on the board for that application years ago did not make him prejudiced.

CW asked Paul Zuzgo to explain his requests for waivers of subdivision regulations. The waiver requests as stated in the application are as follows:

Item Number 13 Wetlands – we request a partial waiver to only show wetlands on the two small lots

Item Number 21 North Arrow – We show that the plan is oriented to the reference plan

Item Number 22 Boundary Survey – we ask for a waiver for the entire parcel. Its been surveyed before(see attached survey). We have tied into the recorded plan and david vincents control.

Item Number 26 Topographic survey – we ask for a partial for topographic survey on the entire parcel. The two proposed lots have topography.

Item Number 32 State plane system. We ask for a waiver to not be tied to state plane system. We are referenced to the reference plan

Paul Zuzgo explained that he wanted to provide detail on only the small lots, lots 5-6 and 5-7, and that, for the large lot, lot 5-5, he wanted refer to Merrimack County Registry of Deeds (M.C.R.D.) plan 15631, prepared by Paul M. Darbyshire Associates, dated August 13, 2001, and revised October 9, 2001. M.C.R.D. plan 15631 shows the parent lot (current lot 5-5) for which the Woods are now applying for subdivision approval. The new lot 5-5 would be what remains after the proposed lots 5-6 and 5-7 are removed.

JP said that subdivision regulations section 2, K, requires the petition for waivers to state reasons for the requested waivers and that the Wood petition does not state reasons for the requested waivers. JP said that state law (RSA 674:36, II, (n)) requires the board to record in its minutes the reasons for every waiver that the board grants. JP said that he is the recording secretary and that he did not want to guess what the reasons for the waivers might be.

CW added that a statement of the waivers granted and their reasons would be recorded with the approved plat (if the plat should happen to be approved).

After discussion of possible reasons for the first waiver request, Paul Zuzgo agreed on the following reason: Delineating the wetlands on proposed lot 5-5 would be costly, a building currently exists on proposed lot 5-5, and no future development is planned on proposed lot 5-5 now.

JP said that new development could happen on proposed lot 5-5 even if such development is not planned now. For example, new accessory buildings would be permitted outside the planning board’s jurisdiction. Alternatively, the existing dwelling could be demolished and a new principal building could be built, which would also be permitted outside the planning board’s jurisdiction.

CW noted that M.C.R.D. plan 15631 does not show a building.

BM asked whether he could move to grant the first waiver request when the request does not state a reason as the subdivision regulations require.

JP said that he was concerned about recording a subdivision plan that shows only two lots when the subdivision in fact has three lots. If the subdivision plan actually includes M.C.R.D. plan 15631, then that inclusion might solve the problem. But M.C.R.D. plan 15631 is not accurate because it does not show the existing building on lot 5-5. Including M.C.R.D. plan 15631 with the application would also leave the application incomplete because the subdivision regulations require the plan to show existing buildings. (Subdivision regulations section 5, E, and section 5, C, 2, (b), (11).)

BM suggested that Paul Zuzgo add an accurate plan of proposed lot 5-5.

CW said that the absence of a plan for proposed lot 5-5 affected the other waiver requests, especially waiver request 3, for a boundary survey.

BM said and the board agreed that the subdivision application is incomplete because the application is for three lots but shows only two lots.

Because the board could not proceed with the requested waivers, the board considered other matters that might make the subdivision application incomplete. The board agreed that the application had the following deficiencies:

1. The waiver requests do not state reasons for all the requests. (Subdivision regulations section 2, K.)
2. The plan does not show proposed lot 5-5. (Subdivision regulations section 5, C, 2, (b), (2); section 5, C, 2, (b), (3); section 5, C, 2, (b), (6); section 6, B, 2.)
3. The plan does not show existing buildings. (Subdivision regulations section 5, C, 2, (b), (11); section 6, B, 3.)
4. The shared driveway does not include a statement of the shared easement. (Subdivision regulations section 5, C, 2, (b), (15); section 6, B, 2; section 6, B, 3; section 6, B, 4; section 6, B, 19.)
5. The plan does not have the seal of the wetlands scientist. (Subdivision regulations section 5, C, 2, (b), (1).)
6. The application does not have a request to waive the requirement to put a monument at the front lot corner that falls in the middle of the shared driveway. (Subdivision regulations section 10, F, 1, (a).)
7. The application has no drainage plan and no request for a waiver of a drainage plan. (Subdivision regulations section 5, C, 2 (b), (9).)
8. The shared driveway has no road construction plan and no request for a waiver of the requirement for a road construction plan meeting the requirements of the subdivision regulations. (Subdivision regulations sections 10 and 11 and Davis v. Barrington, 127 N.H. 202, 497 A.2d 1232 (1985).)

In relation to deficiency 6 (monumenting the front lot corner), JP suggested that Paul Zuzgo monument the boundaries of the shared driveway, specify the lot line as the center line of the shared driveway, and then request a waiver of the requirement to monument the front lot corner because the shared-driveway monuments effectively monument the corner.

BM said that, in view of JP’s suggestion, BM was not sure that a waiver of the requirement to monument the front lot corner was necessary, but BM did not affirmatively oppose the majority’s opinion that the waiver is necessary.

In relation to deficiency 8 (applying road construction standards to the shared driveway), BM disagreed with the majority’s opinion that either a construction plan meeting the requirements of the subdivision regulations or a waiver of those requirements is necessary.

JP moved the board to find that the lack of both a road construction plan meeting the requirements of the subdivision regulations and a waiver of those requirements is a deficiency in the subdivision application.

CW seconded the motion.

Discussion:

JP cited Davis v. Barrington, 127 N.H. 202, 497 A.2d 1232 (1985), for the proposition that a road serving families separated by a subdivision is subject to public-interest regulation. JP said that the subdivision regulations do not prohibit shared driveways but do not provide for them either. Thus, because the shared driveway is a subdivision road under Davis v. Barrington, and because the subdivision regulations have no provision distinguishing shared driveways from other subdivision roads, the road-construction standards of the subdivision regulations apply.

BM said that the shared driveway is not a subdivision road because no lot would front on it.

CW and JP said that the subdivision regulations do not make fronting lots a defining characteristic of subdivision roads.

CW said that the property owners would have to go to the town if a problem arose with the road. CW said that the shared driveway is already subject to public-interest regulation because the easement agreement needs the planning board’s approval.

JP cited the subdivision of Robert Elliott in 2004 (July 15, 2004) and a letter from then-town attorney Tim Bates advising that Winant Road Extension was a private road (it was a road dedicated to public use but not accepted by the town), that the construction standards of the subdivision regulations did apply, and that Robert Elliott would have to request a waiver of the construction standards if he did not want to meet those standards. (See letters of Timothy Bates of December 22, 2003, and June 11, 2004, to Jeremy D. Lamson, Pittsfield town administrator.) JP said that Robert Elliott did request a waiver and that the board granted the waiver.

CW suggested asking the town engineer to advise what makes sense for road-construction requirements.

Vote that the application is incomplete because the shared driveway has no road construction plan and no request for a waiver of the requirement for a road construction plan meeting the requirements of the subdivision regulations: carried 2 – 1 – 0. (Voting “yes”: JP and CW. Voting “no”: BM. Abstaining: none.)

CW asked Paul Zuzgo to secure permission for the board to do a site walk on August 16, 2014. The board agreed that a site walk would be a good idea.

Paul Zuzgo suggested that the wetlands permit sheet WI-3, post-development watershed plan, could serve as a substitute for and a basis of a waiver of the drainage plan.

CW continued the completeness review to September 4, 2014.

CW called a brief recess from 8:38 PM to 8:43 PM.

AGENDA ITEM 6: Review of the Update to the Planning Board’s Rules and Procedures

CW said that he wanted to focus the board’s discussion on the rules of procedure draft dated April 28, 2014, and two patches to the April 28 draft. The patches are dated July 14, 2014, and July 27, 2014. The July 14 patch makes the following changes to the April 28 draft: It revises the scheduling of regular meetings for New Year’s Day (January 1) and Independence Day (July 4); it schedules a second regular meeting in December to handle scheduling hearings for citizen petitions to amend the zoning ordinance; and it specifies the filing procedures for legislative documents such as proposed amendments to the zoning ordinance. The July 27 patch makes the following changes to the April 28 draft: it clarifies that the recording secretary is an officer of the board and that the administrative secretary is not an officer; and it specifies in general terms which secretary does what. CW said that he did not want to discuss the patches tonight but that he would want to discuss them at the next meeting. CW said that the sections providing for review help from the circuit rider planner from the Central New Hampshire Regional Planning Commission need revision. Revising these sections will require corresponding revisions to the subdivision regulations, and CW said that he and JP had started to work on revising the subdivision regulations. CW said that he wanted to reach a consensus on the April 28 draft and its patches. Then the board can proceed to revising the subdivision regulations. CW said that he had studied EN’s rules of procedure proposal, but CW said that he wanted to defer further discussion of EN’s proposal until the board had reached a consensus on the April 28 draft and its patches.

CW said that the board has a number of procedural problems. A significant problem is what CW called “the front end problem,” which is how filed applications get vetted. This section of the rules of procedure and the subdivision regulations is the section that Matt Monahan wrote and that the board adopted in 2010. The rules run afoul of the state law (RSA 676:4, II) scheduling preliminary review. Every preliminary review that the board has done since 2010 has been unlawful. The board needs to design a preliminary review that will be lawful and useful to both the board and applicants in avoiding problems such as the board just faced in the Wood subdivision application.

JP wanted to acknowledge EN’s work in compiling EN’s draft rules of procedure. JP did not think that the board should abandon the April 28 draft, but JP did think that EN’s draft was useful to read.

CW resumed discussion of the “front end problem” and said that the board gets too few copies of subdivision applications for every board member to have a copy. CW said that another problem is that the rules as revised in 2010 do not allow the board to be involved in the preliminary review.

BM asked for confirmation that the April 28 draft and its patches contain all changes proposed to the current, 2010, rules of procedure. BM said that he missed the board’s May meeting and so was not familiar with the April 28 draft.

CW said yes. CW explained that the board had not addressed sections III and X of the 2010 rules because revising these sections requires revising the subdivision regulations.

JP said that he had done much work to revise the subdivision regulations since the last (July 10) meeting because he wanted the revision ready for BM to review as soon as possible. JP said that he had been mindful that BM had been a surveyor and that BM would likely have valuable advice on how to adjust the draft subdivision regulations. JP said that he had tried to organize the requirements for the various subdivision types: lot line adjustments, minor subdivisions, and major subdivisions. JP said that his organization effort had revealed essentially no difference between a minor subdivision and a major subdivision unless the minor subdivision is a lot line adjustment. JP said that, with the requirements properly organized, the board could examine the lists of requirements for the various subdivision types and ask what is the purpose of each requirement and whether the requirement is really necessary.

CW said that the board needs to look at the preliminary-review process to see what changes would help in the board’s evaluation of applications.

JP said that he had designed two preliminary-review processes: (1) with Matt Monahan only and (2) with the board with Matt Monahan’s support. JP said that the board needs to decide whether to have one of these options or both. JP said that the board should be able to make better use of Matt Monahan’s planning expertise than the board makes now.

The board continued its discussion of the benefits of a properly designed design-review process. The board should have options in who the pre-approval consultant is for various situations; right now, the rules require the pre-approval consultant to be the circuit rider planner from the Central New Hampshire Regional Planning Commission for every situation. Well-organized lists of application requirements would help applicants to compile complete applications. Applicants should be able to make an informed decision on whether to go through a preliminary review or to go straight to a formal review. The design review can provide a dry run that would help applicants greatly. A design-review process that involves the planning board, which the current design-review process does not do, would help the board to prepare for the formal review.

AGENDA ITEM 7: Selectman’s Report – Eric Nilsson, Selectman Ex Officio – Gerard LeDuc, Alternate

There was no selectman’s report because EN was absent.

AGENDA ITEM 8: Members’ Concerns

BM said that he had repeatedly proposed permitting by right residences as a principal use in the Commercial District and that the board had not agreed with his proposal or made a proposal of the board’s own. BM said that, at the all-boards meeting in September, he would complain about the planning board’s inaction.

JP said that the last master plan committee meeting (July 28, 2014) had discussed BM’s proposal vigorously and that BM should read the minutes of the meeting.

CW said that he plans to talk to Stuart Arnett about what other towns may be doing. CW said that a simple but potentially important change is to revise the definition of “combined dwelling and business.” CW said that the two empty foundations on Main Street and on Depot Street indicate problems with BM’s proposal to permit by right residences as a principal use in the Commercial District.

AGENDA ITEM 9: Public Input

No public input.

AGENDA ITEM 10: Adjournment

BM moved to adjourn the meeting.

CW seconded the motion.

Vote to adjourn the planning board meeting of August 7, 2014: carried 3 – 0 – 0. (Voting “yes”: JP, CW, and BM. Voting “no”: none. Abstaining: none.) The planning board meeting of August 7, 2014, is adjourned at 9:30 P.M.

Minutes approved: September 4, 2014

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on August 12, 2014, from notes that I made during the planning board meeting on August 7, 2014, and from a copy that Chairman Clayton Wood made on August 8, 2014, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary