July 10, 2014 Minutes

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

DATE: Thursday, July 10, 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
Eric Nilsson (EN), selectmen’s ex officio planning board member.

Planning board members absent:

Gerard LeDuc (GL), selectmen’s ex officio alternate planning board member.

The planning board has no alternates at this time.

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

Members of the public appearing before the planning board: None.

“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 he would have to leave by 8:40 PM.

AGENDA ITEM 4: Approval of the Minutes of the June 19, 2014 and June 24, 2014 Meetings

BM moved to approve the minutes of June 19, 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 June 19, 2014, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: EN.)

BM moved to approve the minutes of June 24, 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 June 24, 2014, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: EN.)

AGENDA ITEM 5: Conceptual Consultation for an 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.

CW said that he had talked to Patricia Wood and that she had said that she could not attend tonight’s meeting. The Woods’ agent, Paul F. Zuzgo, will appear on their behalf.

CW said that, on June 19, 2014, he had intended to bring the Wood application to a completeness review at tonight’s meeting but that, at the June 19 meeting, CW learned of two problems: one that the board discussed and one that the board did not discuss. The board does not want the Woods to spend more money on this project until the Woods solve these problems. CW said that the first problem was about the frontage.

BM interrupted and asked for a copy of the Wood subdivision application.

EN said that the Woods had filed for formal review and had paid the application fee. EN said that the board cannot have a conceptual review after the applicant has filed for formal review. (RSA 676:4, II, (c).)

BM asked for clarification that the applicant had formally filed.

EN said yes. The application was filed and the fee was paid in April.

BM agreed with EN. The board cannot have a conceptual review after the applicant has filed for formal review.

JP referred to the meeting of June 19, 2014, and said that BM had asked whether the board could have a conceptual consultation and that JP had said no. JP said that the Woods filed on April 17, 2014.

BM asked about the statutory timeline of RSA 676:4, I.

JP said that the board must be careful in applying the timeline of RSA 676:4, I, because, in 2010, the board had adopted rules that do not conform to the timeline of RSA 676:4, I. In relation to the situation currently before the board, RSA 676:4, II, (c), says, “Preliminary review shall be separate and apart from formal consideration.” Even if the current plan were coming before a formal filing, the plan’s detail would make the preliminary review a design review, for which the board must notify abutters. (RSA 676:4, II, (b).)

BM asked for confirmation that the board had not notified abutters.

JP said that the board had not notified abutters. JP also alerted the board to Betakis v. Town of Belmont, 135 N.H. 595, 607 A.2d 956 (1992), and read from H. Bernard Waugh’s treatise, Grandfathered – The Law of Nonconforming Uses and Vested Rights (2009 edition), page 15:

“Based solely on the Planning Board’s ‘preliminary approval’ (part of what’s now called ‘design review phase’ – see RSA 676:4, II(b)), the applicant spent $290,000 purchasing land for a mobile home park. The Court held that the Board was bound by its ‘preliminary’ vote, and could not deny final approval. The Court weaseled out of examining the legal standards for either ‘estoppel’ or ‘vested rights,’ relying instead on its ability to overturn a planning board decision which it believes is ‘unreasonable’ (RSA 677:15).”

CW said that more truly preliminary work would help applicants. CW also said that the board cannot use the filing date as the starting point of the statutory timeline because the review by Matt Monahan (of Central New Hampshire Regional Planning Commission) will not fit into the statutory timeline. CW said that the board apparently cannot do the preliminary review that the board had planned for tonight without notifying abutters.

JP said that perhaps the board could do something for the applicants given that their representative is present.

CW said that he wanted to alert the applicants to the two problems that arose on June 19, 2014. The two problems were (1) “frontage” and (2) “the ratio.”

BM asked whether the board’s address to the applicants’ representative would be a preliminary review.

JP said no. The board will simply tell Mr. Zuzgo what the board discussed and put in the minutes of June 19, 2014.

EN said that he was not comfortable with telling Mr. Zuzgo these matters.

CW said that there had been a number of problems and that then JP had noticed two other problems and had suggested helping the applicant to avoid wasting money on a flawed plan. CW said that he would ask Matt Monahan to explain the problems to the applicants.

JP suggested that he tell Mr. Zuzgo of the two matters that JP had noticed and then leave the matter at that.

BM objected that JP’s statement would be a statement of the board and that the board lacks statutory authority to do anything.

JP said that processing applications according to the board’s rules cannot conform to the state law RSA 676:4, I. The board should do something to avoid wasting the applicants’ money.

BM said that the process before the board was “totally done wrong, and we should stop talking about it.”

PH suggested giving the applicants the minutes and letting the applicants figure the problem from the minutes.

JP read from the minutes of June 19, 2014:

“JP said that a plan that he had seen recently showed one of the lots without a frontage as defined in the zoning ordinance. JP said that the Woods should not be led to spend a lot of money on a plan that is not zoning compliant.

“Jesse Pacheco said that he and JP had discussed this problem very recently.

“BM asked whether the board could have a preliminary review of the application before considering it formally.

“JP said no, preliminary review cannot happen after the applicant has filed for formal review. (RSA 676:4, II, (c).)”

JP said that he had mentioned the “ratio” problem to CW only after the meeting, so the “ratio” problem is not in the minutes.

JP gave Mr. Zuzgo JP’s copy of the minutes of June 19, 2014.

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

CW said that the procedural problem that the board had just faced is very difficult because the procedure is stated in and interwoven between the rules of procedure document and the subdivision regulations document. CW said that the current rules of procedure project does not touch current sections III and X because of this problem.

EN suggested that the board abandon its revision of its current rules and adopt instead a rules document that EN had compiled from sampling other towns’ rules of procedure documents. EN said that to continue with the current draft (dated April 28, 2014) would be “beating a dead horse.”

CW said that he liked the April 28, 2014, draft and that he wanted to add provision to schedule regular meetings around national holidays (New Year’s Day and Independence Day). The board currently has no policy for holidays. CW said that he had no idea what was in EN’s proposal.

BM said that he wanted a copy of EN’s proposal.

Jesse Pacheco made copies of EN’s proposal for the board.

CW said that he was concerned about starting completely new. CW said that he wanted to have a public hearing on what the board decides to adopt. CW said that his intent in the rules of procedure document was to record the board’s experience in running meetings and to provide that experience to successor chairs.

CW said that sections III and X are problematic but are necessary because they authorize the board to use Matt Monahan as a planner.

EN said that he did not have with him his list of problems in the April 28, 2014, draft. EN cited sections III and X as big problems.

JP said that EN’s draft could have valuable new ideas and that the board might prefer EN’s draft but also that EN should list the problems in the April 28, 2014, draft. JP agreed that sections III and X are big problems but said that the board had agreed to leave sections III and X out of this revision project.

The board then had a long discussion of sections III and X. CW and JP explained that the problem in sections III and X is that they overlap preliminary review with final review and that they interlock rules of procedure and subdivision regulations. JP said that the repair of these sections is to separate the preliminary review from the final review and to define in the regulations two separate processes for preliminary review and final review. CW and JP occasionally reminded the board that sections III and X are not part of the current revision project.

CW said that he wanted rules to schedule regular meetings around national holidays (New Year’s Day (January 1) and Independence Day (July 4)). CW said that the board should consider possibly adding a second regular meeting in December so that the board would have more time to process citizen petitions. (RSA 675:4, II, requires the board to use the “first regular meeting following the petition period [to] set the date of the public hearing for each petitioned amendment.” This first regular meeting is currently always in January because the board’s regular meeting in December is always before the end of the petition period.)

JP said that board members should understand that state law requires that certain things be done at regular meetings and that the term “regular meeting” as defined in Robert’s Rules of Order means a meeting scheduled by rule. “Regular meeting” does not include meetings that the chair calls. Meetings that the chair calls are special meetings. So, if the board wants to schedule regular meetings around New Year’s Day and Independence Day, then the board must have a rule for this rescheduling.

CW said that a list of all regular meetings scheduled for a coming year would help people who will need to plan on when they can use the board.

BM asked CW not to hold a vote on the April 28, 2014, draft because BM said that he had only recently received a copy of the April 28, 2014, draft and because BM said that he wanted to review EN’s proposal.

JP said that the board was contemplating adding three new rules to the April 28, 2014, draft: (1) scheduling regular meetings around New Year’s Day and Independence Day, (2) directing the chair to create a list of regular meetings in a coming year, and (3) filing legislative documents. (The board actually contemplated a fourth rule: (4) scheduling a second regular meeting in December.) JP said that he would draft these rules and distribute them tomorrow.

AGENDA ITEM 8: Members’ Concerns

BM said that the board would not have time for members’ concerns but that he had concerns that he wanted the board to hear at the board’s next meeting.

BM said that the conservation commission would meet on July 29, 2014.

CW said that there was an appeal of the planning board’s decision approving Rustic Crust’s site plan.

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

EN said that town administrator Mike Williams had clarified in the selectmen’s minutes of July 8, 2014, Mike Williams’s statements in the selectmen’s minutes of June 17, 2014, regarding the planning board secretary and the planning board chair.

JP referred to the “Planning Board Secretary” in rule X, 1, of the current rules of procedure:

“The Building Inspector will then notify the Central New Hampshire Regional Planning Commission (CNHRPC) Circuit Rider and the Planning Board Secretary of said application being received. The Building Inspector, Circuit Rider, and Planning Board Secretary will then schedule a “pre-application” meeting with the applicant the Wednesday of the following week.”

JP said that no one held his office of secretary when Matt Monahan wrote this rule and that no one ever notifies JP of an incoming application. JP wanted to know whether the board thinks that JP should be doing something that JP is not doing.

CW said that Dee Fritz, the planning board’s administrative secretary, has historically performed these tasks.

BM left the meeting at 8:23 PM.

CW said that the selectmen should not have used a selectmen’s meeting to criticize planning board procedure.

JP said that GL should express his concerns about the planning board at the planning board.

AGENDA ITEM 9: Public Input

No public input.

AGENDA ITEM 10: Adjournment

EN moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of July 10, 2014: carried 4 – 0 – 0. (Voting “yes”: JP, EN, PH, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of July 10, 2014, is adjourned at 8:25 P.M.

Minutes approved: August 7, 2014

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on July 12, 2014, from notes that I made during the planning board meeting on July 10, 2014, and from a copy that Chairman Clayton Wood made on July 11, 2014, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary