June 21, 2012 Minutes

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

DATE: Thursday, June 21, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:00 P.M.

AGENDA ITEM 2: Roll Call

Members present: Jim Pritchard (JP, secretary), Pat Heffernan (PH, vice-chair) arrived at 7:07 PM, Bill Miskoe (BM, associate member), Larry Konopka (LK, selectmen’s ex officio alternate), Clayton Wood (CW, chair), and Peter Dow (PD, alternate).

Members absent: Gerard Leduc (GL, selectmen’s ex officio member), excused absence.

Other town officials present: Jesse Pacheco (building inspector) and Carole Dodge (zoning board of adjustment chair).

Members of the public appearing before the planning board: Hank Fitzgerald and Wayne Summerford.

Discussion of Agenda:

CW said that he had wanted to restrict this meeting to just the AHG matter of Agenda Item 5, but Wayne Summerford had called CW and had convinced CW that Mr. Summerford’s need to meet with the board was sufficiently urgent that the board should give Mr. Summerford time.

CW explained that he had omitted the public-input period because the board had work that it must resolve, and CW wanted to make sure that the board finished that work by 9:00 PM.

BM and LK asked CW to put a public-input period on the agenda.

CW agreed to put a public input-period on the agenda between Agenda Items 7 and 8. The board will not have public comment before then.

AGENDA ITEM 3: Approval of Minutes of June 7, 2012

BM moved to approve the minutes as written in draft.

JP seconded the motion.

Discussion:

No member saw any problems in the draft minutes.

Vote to approve the minutes of June 7, 2012, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, BM, and CW. Voting “no”: none. Abstaining: LK.)

AGENDA ITEM 4: Recess: Consultation with Legal Counsel (Not Open To Public)

CW explained that the board had asked him to consult with the town attorney. The consultation will be restricted to the subdivision-abandonment issue and will not include the special-exception-expiration condition. The special-exception-expiration condition will be governed by the subdivision-abandonment decision because RSA 676:12 protects the special exception when the application is open. During recess, board members will direct their questions to Attorney Spector-Morgan. The board will discuss the matter among themselves in public after the recess. The board will not take minutes during the recess because the gathering of the board members is not a meeting under RSA 91-A.

JP did not participate in the consultation because he had recused himself from the AHG matter on June 7, 2012.

PD sat in JP’s place.

The recess began at 7:11 PM.

Town attorney Laura Spector-Morgan left the town hall at 7:39 PM.

CW announced an additional 6-minute recess.

The board was unable to reconvene before 7:49 PM because of a power loss to the board’s tape recorder.

The board reconvened at 7:49 PM with power restored to the tape recorder.

AGENDA ITEM 5: Review/discussion Final Plat Approval of Cluster Subdivision/Site Plan for AHG Properties, Inc., Stage Coach Condominiums, Tax Map R44, Lot 1.

BM said that the submitted mylar should be signed. The application was approved in April 2007. If all of the approval conditions have been met, then the application should be signed for recording. The applicant was delayed for a long time by appeals and meritless lawsuits. If the applicant chose to file a tort lawsuit for loss of opportunity, then BM does not want the town to be a defendant in such a lawsuit.

CW asked the board to stay on the abandonment topic.

LK said that the application is not abandoned.

BM said that the application is not abandoned.

PH said that, at the last meeting, he thought that the issue was clear. Now he does not know what to think. PH said that CW had made good points about neighbors, and PH wants to think about the abandonment.

PD said that, after the clarification about the difference between a completed application and an approved application, PD agrees that the application is not abandoned.

BM said that, in the future, the board should impose a time limit, as a condition of final approval, for submitting the final plat for signing and recording, but the board cannot apply such a condition retroactively to this application.

PD agreed that, in the future, the board should impose a time limit, as a condition of final approval, for submitting the final plat for signing and recording. Such a time-limit condition should be part of the approval process or written into the subdivision regulations.

BM said that the board had not “done that,” and the board cannot invoke abandonment here.

LK said that one of the last requirements was just barely met within the last two months. That was the New Hampshire Department of Transportation permit. Now all of the requirements have been met.

BM agreed with LK. If the board invokes abandonment, then it could get in trouble.

CW was unconvinced that an approved application is not a completed application. The 12-month time period shows the meaning. The board cannot have a completed application undecided for 12 months. The board has deadlines for everything that it does. But the submission of the final plat has no state law deadline. This is a hole that the people who wrote the subdivision regulations were trying to close. An open, unrecorded plat is completely untraceable. Neighbors have no way to know about it unless they investigate at the town hall. The board is not going back to when the application was approved in April 2007. The board is starting this time period with the supreme court decision. That happened 2 and 1/2 years ago. What is reasonable to keep the board informed? All that AHG had to do was to ask for an extension. CW is concerned about the precedent that the board is setting in interpreting the abandonment provision. Whoever wrote this abandonment provision was trying to close this hole. The provision clearly allows extensions. AHG did not ask for an extension. There is no fairness issue here because the board is not taking the time limit from 2007. It is not clear to CW that this application is not abandoned. The abandonment provision is the town’s only protection. Who knows how many other plats are open? Except by searching the town’s files, there is no way to know because there is no other process to force the application to close. An application’s being open 12 months is unusual. The board has to decide applications in 65 days. Court deadlines are hard and fast 30 days, not 31 days. CW is concerned about dismissing the abandonment provision because it provides necessary protection to the town, abutters, and buyers.

BM agreed that the board must “tighten up on this because these long-tailed things don’t tell people what’s really going on.” But the board does not invoke that goal by invoking abandonment. The board cannot make the provision retroactive even if it is a good idea. There is such a difference between a completed application and an approved application. Once the completed application is approved, then it exists “priorly” as a completed application; approval does not make it incomplete. But that status disappears because, once the application is approved, the completed application turns into an approved application. The abandonment statement only applies to incomplete or complete applications. In April 2007, this application became conditionally approved, and none of the conditions specify a time to submit a final plat for recording. The reason for that is because the conditions were such that no one could have known how long it would take. Whether the board should have imposed a time limit for final plat submission, but the board did not do so.

CW disagreed with BM. An approved application is a completed application. Approval is a step in the process after finding the application complete. It is not the board’s responsibility to know how long the applicant will need to fulfill conditions. The applicant can tell the board. The subdivision regulations clearly give the applicant the way to request an extension.

PD said that the subdivision regulations have a section on approved applications, and that section comes right after the abandonment section.

BM said that the difference between a completed application and an approved application is that a completed application has been accepted as completed whereas an approved application has been approved.

CW said that he understood that distinction. What time is reasonable for an applicant to sit on an application? If he sits on it for five years, then he gets another five years grandfathering from RSA 674:39. That makes ten years total. If he sits on it for 10 years, then he gets 15 years grandfathering. What is reasonable to protect the town? CW thinks that the subdivision regulations established this abandonment provision to protect the town from applicants sitting on their applications. The board is setting precedent in how it interprets and applies or does not apply the abandonment provision.

BM said that the precedent would be in applying the abandonment provision. Nothing in the subdivision regulations sets a time limit on when an applicant has to submit a final plat. There should be such a time limit, but there is no time limit now.

LK asked whether the board could consider a motion to deem the AHG plat not abandoned.

BM seconded the motion.

Discussion: No further discussion.

Vote to deem the AHG plat not abandoned: carried 3 – 2 – 0. (Voting “yes”: PD, BM, and LK. Voting “no”: PH and CW. Abstaining: none.)

CW said that the application was complicated enough that the board must review the application. CW will not sign the plat unless the board votes on it. CW suggested that the board get Matt Monahan of Central New Hampshire Regional Planning Commission (“CNHRPC”) for assistance.

BM moved for assistance from CNHRPC.

BM then moved as follows:

To seek review by Central New Hampshire Regional Planning Commission to verify that the submitted mylar is in fact the plat that the board approved in April 2007.

LK seconded the motion.

PH asked about where review of utilities—water supply, community septic system—would fit in the CNHRPC review.

BM said that those conditions are written on the plat and are part of the approval. The town cannot issue certificates of occupancy until the conditions are met as shown on the plat. The building inspector verifies that the utilities are built as shown on the plat.

LK asked who would pay CNHRPC? This application is approved and is not still open. The board should not send the application out to anyone before the board looks at it.

BM revised his motion:

To seek review by Central New Hampshire Regional Planning Commission to verify that the submitted mylar is in fact the plat that the board approved in April 2007. Review by Central New Hampshire Regional Planning Commission will not be conducted until the board has conducted its own internal review.

BM asked about doing the board’s internal review at the first meeting in July?

CW said yes. The board has 90 days to complete the review.

PH asked about money for Matt Monahan of CNHRPC.

Jesse Pacheco said that there is about $1000.

CW said that this project has some escrow money, and the board has additional money because JP does the board’s recording-secretary work.

Vote to seek review by Central New Hampshire Regional Planning Commission to verify that the submitted mylar is in fact the plat that the board approved in April 2007. Review by Central New Hampshire Regional Planning Commission will not be conducted until the board has conducted its own internal review: carried 3 – 0 – 2. (Voting “yes”: PH, BM, and CW. Voting “no”: none. Abstaining: PD and LK.)

AGENDA ITEM 6: Conceptual – Wayne Summerford – Subdivision.

CW confirmed that JP would remain recused because his mother is an abutter, and that PD would remain seated with the board.

Wayne Summerford said that JP had given him some new information about New Hampshire law and had also agreed to speak on Mr. Summerford’s behalf.

JP sat next to Mr. Summerford at the applicant’s table and addressed the board. JP explained that he was helping Mr. Summerford because JP is disqualified to sit for the case. JP said that Mr. Summerford has a grandfathered right to subdivide, in respect to ownership, his commercial building site from his residential building site because each of the two building sites has its own principal use. One of the building sites is a principal commercial use, and the other building site is a principal residential use. The minutes of June 7 reflect the board’s understanding that these two building sites have independent principal uses. The property is therefore already subdivided in respect to use, there are two zoning lots existing now, and the planning board cannot legally withhold subdivision approval solely on the basis of proposed ownership. JP cited pages 46 and 47 of GRANDFATHERED – The Law of Nonconforming Uses and Vested Rights (2009 edition) by H. Bernard Waugh, Esq. The treatise cites Cohen v. Town of Henniker, 134 N.H. 425 (1991), as authority supporting a grandfathered right to subdivide in respect to ownership when the property is already subdivided in respect to use. JP asked whether the board agreed that Mr. Summerford has a grandfathered right to subdivide in respect to ownership.

CW said that he did not think that Mr. Summerford needs a variance, but the board collectively declined to offer an opinion on whether Mr. Summerford has a grandfathered right to subdivide in respect to ownership. LK urged Mr. Summerford to consult with Matt Monahan, of the Central New Hampshire Regional Planning Commission.

JP asked whether the board would consider waiving survey requirements not necessary to establish the new ownership-lot line, because the proposed ownership subdivision will not enable any new uses of the property.

BM said that he would oppose relaxing any survey requirements for Mr. Summerford.

JP asked whether the board would agree that RSA 676:4-a, I, (a), would allow Mr. Summerford to revoke his subdivision at any time when Mr. Summerford wanted to revoke it.

BM said that the board will not express an opinion on how the board would apply a state statute.

CW said that he would work with Jesse Pacheco and Matt Monahan to answer JP’s three questions.

AGENDA ITEM 7: Members Concerns

JP returned to the board, and PD left.

CW said that he was concerned about the planning board’s consulting with the chair of the zoning board of adjustment (“ZBA”). When the planning board asks Carole Dodge (ZBA chair) her opinion, the planning board is not asking her her opinion as a member of the public, the planning board is asking her her opinion as the ZBA chair. CW is not convinced that that kind of consultation is appropriate. Perhaps CW and Carole Dodge should discuss the issue.

JP said that he had rarely been as disgusted with the planning board as he had been tonight. The board faced issues that are written in plain English, and the board turned black into white and white into black twice.

AGENDA ITEM ADDED: Public Input

Hank Fitzgerald said that the planning board can have joint meetings with the ZBA. Hank Fitzgerald said that JP’s helping Wayne Summerford was unlawful, and Hank Fitzgerald will petition the selectmen to remove JP from the planning board. Hank Fitzgerald disagreed that the Summerford property is already subdivided. Hank Fitzgerald said that the planning board is running poorly.

Wayne Summerford said that his presentation had been conceptual and that he appreciated JP’s input.

AGENDA ITEM 8: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of June 21, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PH, BM, LK, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of June 21, 2012, is adjourned at 9:05 P.M.

Minutes approved: July 5, 2012

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on June 23, 2012, from notes that I made during the planning board meeting on June 21, 2012, and from a copy of the one Town tape that Chairman Clayton Wood made on June 22, 2012.

____________________________________________
Jim Pritchard, planning board recorder and secretary

one Town tape.