June 16, 2011 Minutes

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

DATE: Thursday, June 16, 2011

AGENDA ITEM 1: Call to Order

Chair Ted Mitchell called the meeting to order at 7:07 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), Peter Dow (PD, alternate), and Ted Mitchell (TM, chair).

Members absent: Michelle Conner (MC, alternate) excused absence because of illness, and Gerard Leduc (GL, selectmen’s ex-officio alternate).

FH asked TM if TM had talked to GL about attending the meetings. GL is supposed to attend.

TM said no. GL has been to meetings and knows about them.

FH said that he would speak to GL.

JP said that, historically, the selectmen’s alternate has not attended planning board meetings. The absence is so customary that the minutes of the past usually have not mentioned the selectmen’s alternate. GL’s absence should not be labeled as unexcused in view of this custom.

CW and JP suggested that, in the future, absences of any of the alternates should not be labeled as excused or unexcused.

AGENDA ITEM 3: Approval of Minutes of June 2, 2011

CW moved to approve the minutes of June 2, 2011, as written in draft.

JP seconded the motion.

Discussion:

TM asked for the following changes:
Agenda Item 8 (page 2): change “TM said that he had asked Matt Monahan if Matt were still reviewing applications for site plan approval and Matt is still doing that” to “TM said that Matt Monahan had asked TM if Matt were still reviewing applications for site plan approval, and TM told Matt that Matt would still be doing that”
Agenda Item 4 (page 8): change “father” to “farther”
Agenda Item 4 (page 9): change “the expiration period should be uniform” to “the expiration periods for special exceptions, variances, and nonconforming uses should be the same”
Agenda Item 4 (page 10): change “Article 16 will longer than Article 6” to “Article 16 will be longer than Article 6”
Agenda Item 7 (page 14): change “TM had asked Matt Monahan whether Matt was still reviewing site plans for the planning board, and Matt said that he was” to “TM said that Matt Monahan had asked TM if Matt were still reviewing applications for site plan approval, and TM told Matt that Matt would still be doing that”

TM called for a vote on the minutes with the changes that he requested.

Vote to approve the minutes of June 2, 2011,with the changes that TM requested: carried 5 – 0 – 0. (Voting “yes”: JP, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The minutes of June 2, 2011, are approved with the changes that TM requested.

AGENDA ITEM 4: Public Input

No public input.

AGENDA ITEM ADDED: Exemption from Site Plan Review for the Family Dollar store.

TM asked the board to consider a request from Sanford Surveying and Engineering, Inc., for exemption from site plan review for the Family Dollar store to be built on the site of the old P&M Market.

A letter from Sanford Surveying and Engineering says in part as follows:

“Due to an oversight a NHDOT driveway permit was not applied for or received. We recently did submit an application for the two site access points to the State. Based on their review and comments, we were required to eliminate the easterly access near the Tilton Hill Road/Catamount Road intersection and slightly reconfigure the remaining access drive. This change does not affect any other aspect or function of the site plan or building. Because of the construction time constraints involved, we are asking for an exemption from the site plan approval process. We feel we meet the exemption criteria as follows:”

The letter then listed the exemption criteria and the justifications.

The board agreed that the request satisfied the conditions for exemption from site plan review.

TM said that the board should be sure that it notified the New Hampshire Department of Transportation (“NHDOT”) for every project on a state highway.

FH said that the developer had thought that he could use the permits for the existing two driveways.

CW said that the board had agreed two years ago that it would notify the NHDOT as an abutter for every site plan or subdivision on a state highway. The board failed to notify the NHDOT in this case. If the board had notified the NHDOT, then the board would have caught the driveway mistake. The board needs to tell the building inspector that the NHDOT is considered an abutter for all projects on state highways. CW asked which highways in town are state highways.

FH said that the following highways are state highways: Loudon Road, Dowboro Road, Route 107, Route 28, and Crescent Street to Loudon Road.

CW asked who notifies the abutters.

TM said that Matt Monahan and Dee Fritz notify the abutters.

CW said that Matt, Dee, and the building inspector need to know that the NHDOT must be notified as an abutter when a project is on a state highway.

CW moved to approve the exemption from site plan review.

PH seconded the motion.

Discussion:

No further discussion.

Vote to approve the exemption from site plan review: carried 5 – 0 – 0. (Voting “yes”: JP, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The exemption from site plan review is approved.

AGENDA ITEM 5: WORK SESSION

The agenda labels Item 5 as “WORK SESSION – Senior Housing,” but “Senior Housing” is an error. The board discussed new drafts of Article 16, Parking Regulations; Article 5, Section 3, Powers of Zoning Board of Adjustment; Article 6, Special Exceptions; and Article 7, Variances, which are all draft articles for the zoning ordinance.

TM asked JP to discuss the draft of Article 16, Parking Regulations, that JP had revised from the version that JP presented to the last board meeting.

JP said that, in last meeting’s draft, the formulas for the off-street parking required under parking relief contain formulas for the on-street-parking credit. For the new draft, JP explicitly named and defined the on-street-parking credit in Article 16, Section 5, (c). Then, the variable itself—“on-street-parking credit” instead of the formula for the on-street-parking credit—plugs into the formulas for off-street-parking, which are now in Article 16, Section 5, (d). This structure lets the zoning ordinance define an on-street-parking credit for two situations—(1) where the aggregate floor area of the lot is greater than or equal to 1115.6 square feet, and (2) where the aggregate floor area of the lot is less than 1115.6 square feet—without having complicated logic in the formulas for the required off-street parking. In addition, the flexibility lets the zoning ordinance easily define the on-street-parking credit for small floor areas so that such properties get one—and only one—on-street-parking credit regardless of the number of uses on the lot.

TM and CW liked the new structure. The new structure is easier to understand and gives every nonresidential property in the Commercial District credit for at least one on-street parking space.

JP discussed Article 16, Section 4, (b). JP revised this paragraph to state the complete number of off-street parking spaces that any given lot must have for all uses that use the lot for parking, whether the uses are on the lot or off the lot. The new draft states the complete total explicitly, whereas the previous draft stated the complete total implicitly.

JP discussed Article 16, Section 6, (a). This paragraph now defines “durable and dustless surface.” “Durable and dustless surface” means a surface as durable and dustless as bituminous asphalt. JP said that “pavement” does not mean asphalt or concrete; it means any material that forms a firm, level surface for travel. The purpose of replacing “hot top” in the old ordinance with “durable and dustless surface” was intended to let the builder decide how to meet the performance standard, but the change was not intended to reduce the performance standard.

FH asked about Article 16, Section 7, (b), and whether the one-foot-separation rule always applied for side-by-side (as opposed to end-to-end) parking spaces. FH said that the parking spaces in some parking lots did not satisfy the one-foot-separation rule.

CW said that the parking spaces did not actually have to be separated by one foot. The parking spaces could be 9 feet wide instead of being 8 feet wide with one-foot separations.

TM said that he had talked to Matt Monahan about the choice of innovative conditional use permit as opposed to special exception. Matt’s concern is that the special exception process is more cumbersome for developers because the special exception process includes an extra board review.

JP said that the handout that CW had distributed several meetings ago addressed this issue directly. The handout is called Look Before You Leap: Understanding Conditional Use Permits, by Christine Fillmore, Esquire. JP read from the handout as follows:

“This [special exception] process may be a more cumbersome process for developers but may also provide an additional layer of review and public comment, which can be a good idea for uses or situations that are controversial or complex.”

JP said that he does not think that the innovative conditional use permit is legal for parking because parking is not innovative. JP does not like the innovative conditional use permit in general because it provides less opportunity for public participation than the special exception process provides.

TM asked about presenting the revised Article 16 to the town meeting next March.

JP suggested that it should go on the web-site blog for public feedback before the board takes any other official action.

CW discussed getting additional public feedback and perhaps having a public meeting on the board’s whole package for the town meeting, as opposed to on just the parking article. CW suggested working on some other things to assemble a package.

TM suggested having a preliminary meeting for the public after the summer.

The board agreed that the draft Article 16 should go on the blog now and that TM and CW will have discretion to put other material on the blog.

TM asked JP to discuss the drafts of Article 5, Section 3, Powers of Zoning Board of Adjustment; Article 6, Special Exceptions; and Article 7, Variances, that JP had prepared for this meeting.

The board did not have copies of the draft definitions of “special exception” and “variance,” but TM did have a copy, so CW made copies for the board.

JP discussed the new definitions of “special exception” and “variance,” which he got from case law. JP thinks that the definitions in the current zoning ordinance, especially for “special exception,” are confusing. The case law citations help because the NH statutes (“RSAs”) do not define either “special exception” or “variance,” but case law does define them.

JP then proceeded to the draft of Article 5, Section 3, Powers of Zoning Board of Adjustment. The draft replaces current Article 5, Section 3, Powers. The current Article 5, Section 3, lists the powers of the board of adjustment as RSA 674:33 was written before 1983. The draft Article 5, Section 3, lists the powers of the board of adjustment as RSA 674:33 is written now. In 2009, the state legislature made substantial changes to the variance statute, RSA 674:33, I, (b). In 1983, the state legislature clarified and reordered RSA 674:33, IV, for special exceptions.

JP then proceeded to the draft of Article 6. Draft Article 6, Section 1, is general provisions, saying to whom an application for a special exception must be made and what is the board of adjustment’s function in deciding special exceptions. The draft Section 2 has the permitting conditions for special exceptions and is similar to the current zoning ordinance Section 2, but JP deleted condition (a) of the current zoning ordinance:

“The specific site is an appropriate location for the proposed use or structure.”

JP said that he had deleted this condition because he did not understand it or how to decide whether a location is appropriate. JP said that the condition appeared to violate the state-law requirement that the zoning ordinance must define the conditions that make a special exception appropriate.

CW said that he did not know what an “appropriate location” meant either.

FH cited the Mud Bog as being at an appropriate location, but it would be inappropriate on Route 28.

JP said that the appropriateness of the Mud Bog’s location was FH’s opinion, but nothing in the zoning ordinance defined that appropriateness so that another person could know. If the board could define what is an appropriate location, then the board might be able to save the condition.

PH asked how would the appropriateness of the location be defined?

JP did not know.

TM and PH said that the appropriateness of the location was a matter of opinion.

TM said that, last year, the board had reviewed definitions and had either defined ambiguous terms or deleted them where the board could not understand them.

PH thought that deleting the condition was a good idea, but he was concerned that voters might not agree.

JP said that the zoning ordinance must define appropriateness. Perhaps the board could get feedback from the public when the draft Article 6 goes on the blog.

CW said that the other conditions, which relate to detriment to the neighborhood and diminution of property value, might define whether the location is appropriate. CW also suggested that the web site could request feedback on the specific issue of how to define the appropriateness of a location.

JP discussed the remaining draft permitting conditions, which are the same as the current permitting conditions except better sentence style.

JP discussed draft Article 6, Sections 3, 4, and 5. Section 3 contains a statutorily required condition that “The use shall be in harmony with the general purpose and intent of the zoning ordinance.” (RSA 674:33, IV.) Section 3 also contains expiration conditions. If the use is not started within two years after the date of special exception approval, or if the use is discontinued for two years or more, then the use is abandoned and the permit expires. Section 4 says that the applicant bears the burden of proof. Section 5 says that the board of adjustment may impose conditions that are necessary to fulfill the permitting conditions that the zoning ordinance defines. For example, the board of adjustment could require a few extra parking spaces to fulfill condition (c), which requires that parking will not be a nuisance or a hazard. The board of adjustment cannot impose such conditions as the board of adjustment feels are appropriate; the conditions must be necessary to fulfill the conditions in the zoning ordinance.

CW said that the draft conditions had eliminated the “appropriate location” condition, but the draft conditions otherwise preserved the substance of the current Article 6.

TM asked if the case-law citations in draft Article 6, Section 1, were excessive.

JP said that he did not think so because defining the board of adjustment’s function in deciding special exceptions is very important. The original case, Stone v. Cray, decided in 1938, is an important case defining that function, and the other cases stemmed from Stone v. Cray and said the same thing using a little different language. The case-law citations help anyone who needs to understand and research what the land use boards are doing.

CW said that he liked the citations.

TM said that legal citations do help explain where some rule comes from or why it is in the zoning ordinance. RSA citations are critical.

PH said that the case-law citations are important because they establish the authority of the zoning ordinance to do what it does. PH was concerned about public reaction to eliminating the “appropriate location” condition.

CW said that public feedback would tell the board. In the meantime, the other conditions do address the question of whether a given project is appropriate in the particular neighborhood where the project is proposed.

CW and JP said that the draft Article 6 clarified that the permitting conditions in Section 2 applied to the uses denoted by “E” in Article 2, Table 1, but not necessarily elsewhere. This structure gives the zoning ordinance the flexibility to use the special exception process for anything and have permitting conditions tailored to the specific type of use.

CW said that the clearer definition of “special exception” and the added flexibility that the draft Article 6 gives to the special exception process are the main selling points for draft Article 6.

JP then proceeded to draft Article 7, Variances. This article is very similar in form to draft Article 6. Section 1 is general provisions, saying to whom an application for a variance must be made and when it can be made. Section 2 presents the variance requirements of RSA 674:33, I, (b), for a hardship variance. Section 3 presents the variance requirements of RSA 674:33, V, variances for disabled persons. Section 4 says that the applicant has the burden of proof. Section 5 says that the board of adjustment may attach conditions that are necessary to observe the spirit of the zoning ordinance. Section 6 says that, if the use is not started within two years after the date of variance approval, or if the use is discontinued for two years or more, then the use is abandoned and the permit expires. JP deleted Article 7, Section 1, of the current zoning ordinance because this section defines “variance” differently than Article 3 does. JP deleted current Article 7, Section 4, which says that state law supersedes the zoning ordinance if the variance conditions in the zoning ordinance differ from state law. This provision is unnecessary because state law always supersedes local law, whether for variances or otherwise.

The board was satisfied with the revisions of Articles 5, Section 3; Article 6; and Article 7.

TM said that the zoning ordinance articles completed so far would be put aside for reconsideration at the next meeting.

AGENDA ITEM 6: Building Inspector Report

FH said that the building inspector’s report was that the Family Dollar needs an exemption from site plan review because the driveway entrance near Tilton Hill Road must be eliminated. That driveway entrance has been there since the A&P supermarket was built on the site in 1957.

AGENDA ITEM 7: Selectmen’s Report – Fred Hast, Selectman Ex Officio

FH said that the board of selectmen will send the planning board’s letter regarding 14 Depot Street to town attorney Laura Spector for review. The selectmen are also working on tax deeds.

AGENDA ITEM 8: New Business
a. City of Concord – Planning Board

The Concord Planning Board notified the Pittsfield Planning Board that New Cingular Wireless PCS, by and through AT&T Mobility Corporation, on behalf of PFP Associates LTD Partnership, proposes to replace and lower three existing antennas and install six new antennas, as part of a wireless telecommunications facility on the Ralph Pill Building at 22 Bridge Street.

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

CW seconded the motion.

Discussion:

None.

Vote that the Concord 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 Concord telecommunications project has no regional impact to Pittsfield.

AGENDA ITEM 9: Members Concerns

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

TM read his letter, which, in brief, describes (1) the board’s progress in defining reduced parking requirements as a function of floor area and (2) the planning board’s letter to the board of selectmen in relation to the open cellars at 14 Depot Street.

JP asked that “seemingly abandoned” be softened in describing the open cellars.

TM suggested just “open cellars.”

CW said that the description of the on-street-parking credit had unnecessary detail. Instead of spelling out the formulas in terms of floor area and number of uses, just say “based on floor area.”

Members concern 2: PH’s concern with seeing the site of the Mud Bog.

PH said that the board would consider the site plan of the Mud Bog on July 7, 2011. PH wants to look at the site first.

FH and JP told PH to ask the property owner for permission.

The board discussed whether all members should go separately or as a group.

FH said that all members could not go as a group because going as a group would require giving notice of a special meeting.

Members concern 3: TM’s concern that Matt Monahan will be with the Coast Guard for two weeks beginning July 7, 2011.

Members concern 4: TM’s concern that $10,500 (for 210 hours) remains for the planning board’s use of Central New Hampshire Regional Planning Commission.

AGENDA ITEM 10: Public Input

No public input.

AGENDA ITEM 11: Adjournment

CW moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of June 16, 2011: carried 5 – 0 – 0. (Voting “yes”: JP, PH, FH, TM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of June 16, 2011, is adjourned at 8:38 PM.

Minutes approved: July 7, 2011

______________________________ _____________________
Ted Mitchell, Chairman Date

I transcribed these minutes (not verbatim) on June 18, 2011, from notes that I made during the planning board meeting on June 16, 2011, and from a copy of the one Town tape that Chairman Ted Mitchell made on June 17, 2011.

____________________________________________
Jim Pritchard, planning board recorder and associate member

1 Town tape.