January 26, 2015 Minutes

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

DATE: Monday, January 26, 2015

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:10 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;
Larry Konopka (LK), selectmen’s ex officio planning board member; and
Roland Carter (RC), alternate planning board member.

Planning board members absent: Gerard LeDuc (GL), alternate for the selectmen’s ex officio planning board member.

Members of the public appearing before the planning board: Carole Dodge (chair of the zoning board of adjustment), Ted Mitchell, Jesse Pacheco (code enforcement officer), and Jim Snedeker.

“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: Public Hearing on Proposed Zoning Amendments

The board’s notice of tonight’s public hearing says as follows:

Notice of Public Hearing

The Pittsfield Planning Board will hold public hearings pursuant to RSA 675:3, II, on three Zoning Ordinance amendments (numbered 1, 2 and 3) proposed by the Planning Board. The time and place of each public hearing is Monday, January 26, 2015, 7:00 PM, at the Pittsfield Town Hall, 85 Main Street, Pittsfield, NH 03263.

Amendment 1: Vote to approve revising Zoning Ordinance Article 9 to state as follows: “Signs of whatever size and material shall be a permitted accessory use in the Commercial and Light Industrial/Commercial districts of the Town and on the premises of businesses or permitted industry in other districts, provided that any such signs do not constitute a nuisance by emitting an unreasonable amount of light or noise and are compatible with the surrounding area.”

Amendment 2: Vote to approve revising the definition of “JUNK YARDS” to state, “A facility as defined in RSA 236:112, I, II, IV and V (c).”

Amendment 3: Vote to revise the introductory sentence of Zoning Ordinance Article 3 to state as follows: “In the interpretation and enforcement of this chapter, all words other than those defined specifically below shall have the meanings implied by their context in this chapter or their ordinarily accepted meanings.”

The full text of each amendment proposal is on file for public inspection at the Town Hall, 85 Main Street, Pittsfield, NH. To inspect the full text of the proposal, please speak to the Planning Board Secretary, Delores Fritz; the Town Administrator, Mike Williams; the Town Clerk, Erica Anthony; or the Selectmen’s Administrative Assistant, Cara Marston. Each proposal is also on the Planning Board’s web site: http://www.mypittsfield.com/planning.htm

CW read amendment 1:

Amendment 1: Vote to approve revising Zoning Ordinance Article 9 to state as follows: “Signs of whatever size and material shall be a permitted accessory use in the Commercial and Light Industrial/Commercial districts of the Town and on the premises of businesses or permitted industry in other districts, provided that any such signs do not constitute a nuisance by emitting an unreasonable amount of light or noise and are compatible with the surrounding area.”

BM asked for clarification that what CW had read is the whole amendment.

CW said yes.

BM referred to “provided that any such signs do not constitute a nuisance by emitting an unreasonable amount of light or noise and are compatible with the surrounding area.” BM asked who determines what is a nuisance, what is unreasonable, and what is compatible.

LK said that BM’s question was kind of late and that BM should have asked his question before the board proposed the amendment.

JP said that the board had thoroughly discussed and fully answered BM’s question on November 20, 2014.

BM said that he was asking the question again and that maybe JP should answer it again.

JP suggested that the board hear public input first.

CW opened the hearing to public input on amendment 1.

Ted Mitchell said that he agreed with BM. The amendment is too “broad stroked” and will result in arbitrary enforcement.

RC asked whether existing signs would be grandfathered.

BM and CW said yes.

Jesse Pacheco referred to current article 9 of the zoning ordinance:

“Signs of whatever size and material shall be a permitted accessory use in the Commercial and Light Industrial/Commercial districts of the Town and on the premises of businesses or permitted industry in other districts, provided that any such signs do not constitute a nuisance, in the opinion of the Zoning Board of Adjustment, by emitting an unreasonable amount of light or noise and are compatible with the surrounding area.”

Jesse Pacheco said that the motive behind amendment 1 was JP’s observation that the phrase “in the opinion of the Zoning Board of Adjustment” creates a requirement that every commercial sign must have the approval of the zoning board of adjustment (ZBA). The purpose of amendment 1 is to avoid making applicants for a sign permit get an additional approval from the ZBA.

CW closed public input at 7:18 PM and invited board discussion.

BM said the phrase “provided that any such signs do not constitute a nuisance by emitting an unreasonable amount of light or noise and are compatible with the surrounding area” is creating a mess for the ZBA and the building inspector. Who is going to decide what is a nuisance or what is unreasonable? The amendment should have been written without the “provided that…” phrase.

JP said that he had opposed this amendment on November 20 for the same reasons that BM is now giving. JP said that he had favored repealing article 9 in whole so that signs would be permitted as accessory uses. JP said that he still opposes amendment 1 because the permitting conditions are too vague.

BM repeated that amendment 1 is unenforceable.

CW said that amendment 1 is too vague. The board might in the future consider another approach with better-defined permitting conditions. Removing the ZBA from the approval process changes nothing about the permitting conditions.

JP said that he did not remember any special exception applications for signs.

Jesse Pacheco referred to a conversation that he had had with JP and PH about a sign. Jesse Pacheco said that JP had pointed to the phrase “in the opinion of the Zoning Board of Adjustment” and that JP had said that Jesse Pacheco had no right to allow a sign without the ZBA’s approval. Jesse Pacheco said that requiring the ZBA’s approval for every sign was “crazy.” Jesse Pacheco thought that it would be better if Jesse Pacheco instead of the ZBA made the determination of appropriateness.

PH asked why the planning board had not simply deleted “in the opinion of the Zoning Board of Adjustment” from zoning ordinance article 9.

CW explained that amendment 1 does exactly that deletion.

BM said that deleting “in the opinion of the Zoning Board of Adjustment” helps but that the vague permitting conditions remain.

PH asked whether Jesse Pacheco would have a problem with the sign permitting conditions.

Jesse Pacheco explained the application and review process. The code enforcement officer would make an initial determination of compliance with the sign permitting conditions, and, if the applicant did not agree with the code enforcement officer’s determination, then the applicant could appeal the code enforcement officer’s determination to the ZBA.

JP said that he had been mentioned as if he were responsible for amendment 1. JP said that he had always favored repealing zoning ordinance article 9 in whole.

BM asked whether repealing article 9 would result in signs being prohibited.

JP said no. Repealing article 9 would result in signs being permitted as accessory uses.

LK asked for clarification that amendment 1 would send sign applicants directly to the code enforcement officer and then to the ZBA if the applicant disagreed with the code enforcement officer.

Jesse Pacheco again explained the application and review process.

BM said, “this is an enforcement horror show. We shouldn’t do it.”

JP said that, because people were saying what he had said, JP would like to say what he had said. The words “in the opinion of the Zoning Board of Adjustment” define a special exception. JP said that he had told Jesse Pacheco as much and had referred Jesse Pacheco to New Hampshire Practice. JP said that the special exception requirement was a reason to repeal article 9 in whole.

Jesse Pacheco said amendment 1 is necessary unless article 9 requires ZBA action when and only when the code enforcement officer determines that the sign is indeed a nuisance.

BM asked whether the planning board could amend amendment 1 or whether the board had run out of time.

JP said that the board had run out of time.

CW reopened the hearing to public input.

Carole Dodge said that the ZBA had “already seen this issue. It’s already come to the zoning board. That’s why it’s here before you. That’s why our suggestion was this way. All we did was take what is in our current zoning ordinance and remove the words ‘in the opinion of the Zoning Board’ to try to streamline it and make it a little bit more simple, a little bit easier, and not waste a whole lot of people’s time and their paycheck of coming to the zoning board if it’s not a necessary thing.” Carole Dodge also said that the administrative appeal option (RSA 674:33, I, (a)) to the ZBA is available to people who disagree with Jesse Pacheco’s determination. Carole Dodge said that the problem with article 9 will remain if the planning board rejects amendment 1.

BM asked whether removing “in the opinion of the Zoning Board of Adjustment” would be an improvement.

Carole Dodge said yes.

BM asked whether article 9 could be additionally amended in the future.

Carole Dodge said yes.

BM asked whether the ZBA endorses amendment 1.

Carole Dodge said yes, both the ZBA and Jesse Pacheco endorse amendment 1.

BM asked Carole Dodge whether she wanted article 9 to contain the permitting conditions “provided that any such signs do not constitute a nuisance, in the opinion of the Zoning Board of Adjustment, by emitting an unreasonable amount of light or noise and are compatible with the surrounding area.”

Carole Dodge said, “It’s a catch-22. And, quite frankly, in the vernacular, you’re damned if you do and you’re damned if you don’t.”

BM asked what the impact on the ZBA would be if the sign permitting conditions were not part of article 9.

Carole Dodge said that the ZBA would be “pretty much out of it” if the sign permitting conditions were not part of article 9. Carole Dodge said that, if article 9 did not have the permitting conditions, then someone could build a billboard in front of someone else’s driveway.

BM said that the planning board had two bad decisions: the board could either put amendment 1 on the town-meeting ballot or not. BM said that the board should do the best that it could. BM said that approving amendment 1 would be better than doing nothing.

Jim Snedeker asked whether the town had different sizes for signs in the various zoning districts.

BM said no.

JP said that it had been argued that the permitting conditions of article 9 prohibit billboards. JP said that this argument was mistaken and that article 9 in fact permits billboards. JP read from article 9: “Signs of WHATEVER size and material shall be a permitted accessory use…” JP said that billboards have size and are therefore permitted as accessory uses under article 9. JP said that billboards would not be permitted as accessory uses if article 9 were repealed. JP said that he opposed amendment 1 because he did not want to empower code enforcement to decide what signs are compatible with the surrounding area. JP said that the town has not enforced article 9 since the zoning ordinance was adopted.

Ted Mitchell said that amendment 1 was badly worded but might be worth putting on this year’s ballot if the board were to review the revised article 9 next year.

Jesse Pacheco said that he was trying to simplify the sign-permitting process. Jesse Pacheco said that the board should have concentrated on correcting article 9 properly and should have done nothing else.

JP said that article 9 had never been enforced before; why has the town suddenly decided to start enforcing it?

BM said that JP himself had pointed out that the phrase “in the opinion of the Zoning Board of Adjustment” requires ZBA action. BM said that currently article 9 does not allow billboards because “a billboard is a separate structure. It’s not a sign hanging on the front of the side of a building. And the building inspector has plenty of authority to decide whether a structure can be built somewhere.”

JP asked where article 9 says that the sign has to be attached to the side of a building. Article 9 just says, “Signs of whatever size and material shall be a permitted accessory use…” A billboard is a sign.

PH said that amendment 1 would solve many problems and would create many problems. The board can work on the problems next year. The town does not have many signs to review. The board should approve amendment 1.

CW said that the town meeting may not approve amendment 1. If the town meeting does approve amendment 1, then the town meeting may not approve the board’s corrections next year. The public is looking to the planning board for solutions. CW said that he too had proposed repealing article 9. If the town has sign permitting conditions, then the conditions should be better defined. CW said that the board had proposed and the town had adopted an elderly housing ordinance (zoning ordinance article 23) and that that article has huge problems because the board proposed the article and “didn’t follow through on it.” CW had concerns about proposing a bad amendment even if the amendment did solve some problems. CW said that he could not support amendment 1.

JP said that he had not said that the town absolutely had to enforce article 9. JP said that he had said that article 9 defines a special exception, but that Jesse Pacheco had disagreed. JP said that, because article 9 is confusingly worded in respect to the special exception requirement, and because the town has never enforced article 9, the doctrine of administrative gloss might avoid the requirement to enforce the special exception requirement. JP said that administrative gloss would no longer apply if the town readopted article 9 with the same permitting conditions. Such readoption would say that the town intends to enforce the permitting conditions.

CW agreed with JP.

BM said that the board should not approve amendment 1 if, as PH said, the town does not have many signs to review. BM moved “that the board not place amendment number 1 on the ballot for 2015.”

JP seconded the motion.

Discussion:

LK said that, overall, amendment 1 was good. It gives a person the right to go to the ZBA, instead of court, if the code enforcement officer refuses a sign. It will save people money from having to go to the ZBA; people can go to the code enforcement officer instead for the sign permit.

BM said that not many people are trying to erect signs.

Jesse Pacheco and Carole Dodge disagreed. Jesse Pacheco said that he also disagreed with JP and that the town had a fee for a sign. The sign fee is $25.

Jesse Pacheco, BM, and JP discussed the sign fee and its origin. JP said that he thought that the sign fee was unlawful because the town repealed all local building codes in 1998. (1998 town meeting warrant article 2.)

Vote not to place amendment number 1 on the ballot for 2015: carried 3 – 2 – 0. (Voting “yes”: JP, CW, and BM. Voting “no”: PH and LK. Abstaining: none.)

CW read amendment 2:

Amendment 2: Vote to approve revising the definition of “JUNK YARDS” to state, “A facility as defined in RSA 236:112, I, II, IV and V (c).”

CW opened the hearing to public input on amendment 2.

Jim Snedeker asked what amendment 2 would do.

CW explained that it had been brought to the board’s attention that “there was some kind of loophole” in the current definition because the current definition has the phrase “legally licensed” in it:

JUNK YARDS: A legally licensed facility for the storage of junk as defined in RSA 236:91,II, III, IV, and RSA 236:112, I, III, IV and V (c).

Jesse Pacheco said that town administrator Mike Williams had proposed this change. Mike Williams was not present at tonight’s meeting to explain.

Carole Dodge said the deletion of “legally licensed” was necessary because “you can only enforce it with legally licensed, so those other ones can just go ahead.”

Ted Mitchell asked whether a person with old water heaters spread around his yard would be a junkyard.

JP said that grandfathering for junkyards is different from grandfathering for other uses because junkyards have a yearly licensing requirement to which grandfathering does not apply. (RSA 236:121, II.) JP said that he was not in favor of closing some junkyard loophole or finding that a certain business repairing cars in a nonresidential area is a junkyard so that that business has to get a yearly license inspection.

Ted Mitchell asked whether the “junk yards” definition relates only to junk automobiles.

JP read from RSA 236:112, I:

“‘Junk yard’ means a place used for storing and keeping, or storing and selling, trading, or otherwise transferring old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber debris, waste, or junked, dismantled, or wrecked motor vehicles, or parts thereof, iron, steel, or other old or scrap ferrous or nonferrous material. As used in this subdivision, the term includes, but is not limited to, the following types of junk yards:”

JP said that “junk yard” includes all sorts of junk matter. JP also noted that, in respect to automobiles, “junk yard” includes only “junked, dismantled, or wrecked motor vehicles”; “junk yard” does not include cars being repaired for sale.

Jim Snedeker asked for confirmation that the change would not affect junkyards already licensed.

CW said, “correct.”

BM asked, “licensed by whom?”

CW said “the local governing body.” (RSA 236:115.)

BM said that RSA 236:114 requires a license.

JP said that the license expires every year. (RSA 236:121, II.)

BM asked whether a lapse in licensing would nullify grandfathering.

JP said that a failure to license does not, by itself, nullify grandfathering. (Guy v. Town of Temple, 157 N.H. 642, 956 A.2d 272 (2008).)

Jim Snedeker said that grandfathering protects uses that preexisted the zoning ordinance.

JP said that grandfathering does not automatically entitle a junkyard to a license. (RSA 236:117 through RSA 236:121.)

Jim Snedeker said that he had been concerned about whether amendment 2 would affect his junkyard.

Jesse Pacheco said that Jim Snedeker’s license differed from the other junkyards in town.

Jim Snedeker agreed.

Jesse Pacheco said that the definition does not need “legally licensed” because the state law requires junkyards to be licensed.

CW said that the reason given for removing “legally licensed” from the current definition was that the term “legally licensed” creates some kind of loophole. CW said that he did not understand how a junkyard not legally licensed could have more rights than a legally licensed junkyard.

Jesse Pacheco said that town administrator Mike Williams had said that “legally licensed” creates a loophole.

BM said that the change would make Pittsfield’s zoning ordinance agree with state law. BM said that the local ordinance cannot trump state law.

JP said that, for junkyards, local ordinances do trump state law. JP read from RSA 236:124: “Specific local ordinances shall control when in conflict with this subdivision.”

Jim Snedeker said that local law cannot trump state law.

CW said that Mike Williams himself had cited RSA 236:124.

CW closed public input.

JP said that amendment 2 does not bring the Pittsfield Zoning Ordinance into compliance with state law. The planning board could have proposed to define “junk yard” as a junk yard as defined in RSA 236:112, I, but the board did not do that.

LK said that the purpose of tonight’s public hearing is to educate the public about what the board is trying to pass. LK said that he thought that the board was pretty well educated about what the board was trying to pass.

CW said that he had raised these same objections previously (on November 20, 2014). The vote was 3-2.

LK said, “It just looks like its confusing, like we don’t know what we’re trying to pass here.”

Jesse Pacheco said that the person who had spent a lot of time working on material that the board did not look at should have spent the board’s time working on the amendments currently before the board. The board should try to help the building inspector and the ZBA. The board should review the case laws with the building inspector and the ZBA but not now.

BM asked Jesse Pacheco whether Jesse Pacheco were endorsing amendment 2 for the town meeting ballot.

Jesse Pacheco said yes.

JP said that Jesse Pacheco’s analysis was disingenuous. The board had discussed this matter extensively on November 20, 2014, and town administrator Mike Williams had said that “legally licensed” creates a loophole. JP said that he had never understood why something not legally licensed would be legal if the same thing legally licensed is not legal.

Jesse Pacheco asked what harm would the change do.

JP said that the harm question was like amendment 1. The current “junk yards” definition is not very good, and the board proposes a minor change that leaves the definition still not very good. If the board means that “junk yard” means a junk yard as defined in state law, then the board should have said that, but the board did not say that. JP noted that the word “facility” does not appear in RSA 236:112. Corrections should be done properly.

BM moved “that the planning board place amendment number 2 defining ‘junk yards’ to be a facility as defined in RSA 236:112, I, II, IV and V (c) on the ballot.”

PH seconded the motion.

Discussion: No further discussion.

Vote to place amendment number 2 defining “junk yards” to be a facility as defined in RSA 236:112, I, II, IV and V (c) on the ballot: carried 3 – 2 – 0. (Voting “yes”: PH, BM, and LK. Voting “no”: JP and CW. Abstaining: none.)

CW read amendment 3:

Amendment 3: Vote to revise the introductory sentence of Zoning Ordinance Article 3 to state as follows: “In the interpretation and enforcement of this chapter, all words other than those defined specifically below shall have the meanings implied by their context in this chapter or their ordinarily accepted meanings.”

BM said that he did not know what amendment 3 means.

CW opened the hearing to public input on amendment 3.

There was no public input.

CW closed public input.

BM said that he had read the amendment many times but still did not understand it. BM noted ambiguity in “the meanings implied by their context in this chapter OR their ordinarily accepted meanings.” (Emphasis added on “OR.”)

JP said that he was confused by what “chapter” means.

BM said that “the meanings implied by their context in this chapter or their ordinarily accepted meanings” is “gobbledygook.”

Carole Dodge suggested that the beginning of zoning ordinance article 3 would clarify matters.

CW read the beginning of zoning ordinance article 3: “For the purpose of this ordinance, certain terms or words herein shall be interpreted or defined as follows.”

Board members discussed the possible meaning of “chapter.”

CW suggested changing “chapter” to something else as a textual change allowed under RSA 675:3, III.

JP disagreed because the scope of a “chapter” is not defined.

Carole Dodge said that “chapter” is a clerical error that the board can correct.

BM asked for clarification that CW was proposing to change “chapter” to “article” as a typographical error.

CW said yes, but the other problem of ambiguity remains.

BM agreed.

JP stressed that he did not agree that the change from “chapter” to “article” is a permissible textual change, so JP wanted to be sure for the record that a majority of the board thinks that “chapter” and “article” are clearly synonymous.

BM said yes.

CW said that he was not sure.

JP said that, if the majority was not sure, then the change is not permissible.

BM argued that “chapter” and “article” are synonymous.

LK asked about calling Mike Williams.

CW and JP thought that calling Mike Williams was unnecessary.

CW said that “chapter” and “article” are synonymous.

BM moved “that the board correct a wording error and replace the word ‘chapter’ with ‘article’.”

CW seconded the motion.

Discussion:

PH agreed with the change.

Carole Dodge said that the change was clerical.

LK asked JP whether the board would violate any state statute in making the change.

JP said, “That depends. If you think that ‘chapter’ and ‘article’ clearly mean the same thing, then I would say you can make the change. I don’t think they clearly mean the same thing.”

LK said that he thought that “chapter” and “article” were clearly synonymous.

Vote to correct a wording error and replace the word “chapter” with “article”: carried 4 – 1 – 0. (Voting “yes”: PH, CW, BM, and LK. Voting “no”: JP. Abstaining: none.)

JP said that the board cannot return to “chapter” if the change from “chapter” to “article” was substantive.

CW and BM agreed.

BM asked who decides the ambiguity in “the meanings implied by their context in this article OR their ordinarily accepted meanings.” (Emphasis added on “OR.”)

JP referred to the rule of interpretation beginning zoning ordinance article 3:

“For the purpose of this ordinance, certain terms or words herein shall be interpreted or defined as follows:”

JP said that the board by its vote had replaced this sentence, not added to it, and thus limited the scope of the rule of interpretation to just article 3, whereas the previous rule applied to the whole ordinance. So now all the words in article 3 are defined for just the purpose of article 3 and not for the rest of the zoning ordinance. JP then compared the rule of interpretation in the zoning ordinance to rules of interpretation in the subdivision regulations, section 3, A, 1 and 5:

“For the purpose of these regulations, certain numbers, abbreviations, terms and words used therein shall be used, interpreted and defined as set forth in this section.

“Words not specifically defined herein shall have their common meaning.”

JP said that subdivision regulations rule of interpretation 1 corresponds to the current rule in the zoning ordinance (“For the purpose of this ordinance, certain terms or words herein shall be interpreted or defined as follows”) and that subdivision regulations rule of interpretation 5 corresponds to the zoning ordinance amendment 3 (“all words other than those defined specifically below shall have the meanings implied by their context in this article or their ordinarily accepted meanings.”) JP said that the board had changed amendment 3 to apply only within the zoning ordinance glossary whereas, in the subdivision regulation, the rules of interpretation apply throughout the whole of the regulations. JP said that amendment 3 would not be so bad if it had been in addition to, instead of in replacement of, the current sentence in zoning ordinance article 3. JP said that the intent behind “chapter” had been the whole ordinance but that, even with this change, amendment 3 would still be ambiguous as BM was complaining.

LK said that he had been concerned about changing one word.

JP said that he had said that the change was not “textual.” (RSA 675:3, III.)

LK requested a brief recess.

CW called a brief recess from 8:22 PM to 8:29 PM.

CW moved that the board not bring amendment 3 forward.

BM seconded the motion.

Discussion:

LK said that he saw no problem with amendment 3.

BM saw no problem with replacing “chapter” with “article,” but BM objected to the ambiguity in “the meanings implied by their context in this article OR their ordinarily accepted meanings.” (Emphasis added on “OR.”)

CW said that he was not sure that “chapter” and “article” are synonymous. CW said that “chapter” might mean the whole zoning ordinance.

JP said that he shared both concerns.

Vote not to bring amendment 3 forward: carried 3 – 2 – 0. (Voting “yes”: JP, CW, and BM. Voting “no”: PH and LK. Abstaining: none.)

AGENDA ITEM 4: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of January 26, 2015: carried 5 – 0 – 0. (Voting “yes”: JP, PH, CW, BM, and LK. Voting “no”: none. Abstaining: none.) The planning board meeting of January 26, 2015, is adjourned at 8:31 P.M.

Minutes approved: February 5, 2015

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on February 1, 2015, from notes that I made during the planning board meeting on January 26, 2015, and from a copy that Chairman Clayton Wood made on January 28, 2015, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary