June 7, 2012 Minutes

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

DATE: Thursday, June 7, 2012

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:05 P.M.

AGENDA ITEM 2: Roll Call

Members present: Jim Pritchard (JP, secretary), Pat Heffernan (PH, vice-chair), 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 vice-chair).

Members of the public appearing before the planning board: Romeo Dubreuil and Wayne Summerford.

CW said that he wanted to move Agenda Item 8 (building inspector report) and put it after Agenda Item 5 (Review/discussion final plat approval of cluster Subdivision/Site Plan for Stage Coach Condominiums, Tax Map R44, Lot 1). This rearrangement of the agenda would let Jesse Pacheco leave immediately after his helping with the conceptual consultation of Romeo Dubreuil and the final-plat discussion of Stage Coach Condominiums.

CW noted the presence of Wayne Summerford and said that he, CW, had not intended to hear public input until the end of the meeting.

Wayne Summerford said that he wanted the board’s advice on possibly subdividing his property. He has a financial hardship with his mortgage, and he has a presentation to show how he wants to solve that problem.

JP suggested hearing Wayne Summerford after the board heard Romeo Dubreuil but before the board considered the Stage Coach Condominiums matter.

CW agreed.

AGENDA ITEM 3: Approval of Minutes of May 17, 2012

LK moved to approve the minutes as written in draft.

BM seconded the motion.

Discussion:

CW asked for the following change:
Agenda Item 4e (page 5): change “omitting it” to “omitting that part of the draft”

JP asked for the following changes:
Agenda Item 4e (page 3): change “April, 2011” to “April 2011”
Agenda Item 5 (page 13): change “Mr. Greenleaf that he” to “Mr. Greenleaf that Mr. Greenleaf”
Agenda Item 7 (page 14): change “PD said that he wants planning board” to “PH said that he wants planning board”

JP asked BM to clarify who “you” is in the following sentence in Agenda Item 4g (page 12): “The subdivision regulations say that you have to have a plan, it must show contours, it must have an engineer’s stamp, and so forth.”

BM said that “you” is the planning board; the planning board needs the plan.

Vote to approve the minutes of May 17, 2012, with the changes that CW and JP requested and the clarification that BM made: carried 5 – 0 – 0. (Voting “yes”: JP, PH, BM, LK, and CW. Voting “no”: none. Abstaining: none.)

AGENDA ITEM 4: Conceptual for a Minor Subdivision of a ten acre parcel of property owned by Romeo Dubreuil, located at 59 Johnson Road, Pittsfield, N.H., 03263 Tax Map R24, Lot 10.

CW explained that he had asked Jesse Pacheco (the building inspector) to attend and advise the board. CW did not ask Matt Monahan (the circuit-rider planner) to attend because the board does not normally ask Matt Monahan to attend conceptual consultations.

Romeo Dubreuil referred to his written presentation, which shows a rough plan of the proposed subdivision. He has an approximately 10-acre lot, which he wants to subdivide into two approximately 5-acre lots. The plan shows his existing house, his existing leach field, and his proposed lot line. The plan does not show his existing driveway. Romeo Dubreuil asked whether there were position requirements for driveways.

BM said, “the driveway can be anywhere that George Bachelder wants it. You need to talk to him.”

JP said that driveways might have to be spaced 200 feet from one another. The subdivision regulations require that no driveway shall be built within 200 feet of an intersecting street. (Subdivision Regulations Section 10, G, 6.) Therefore, the question is whether the intersection of a driveway and a street form an intersecting street.

BM said that Romeo Dubreuil’s driveway would not be closer to the intersection of Thompson Road and that the driveways are much farther from the intersections of Johnson Road and Route 107. BM said that Romeo Dubreuil should talk to George Bachelder about a driveway permit. BM noted that the terrain in the vicinity of Romeo Dubreuil’s frontage is steep.

Romeo Dubreuil said that the required sight distance was 250 feet in either direction and that the best position of the driveway for that requirement would probably be at about the middle of the lot, which would put the driveway within 200 feet of the next driveway.

JP clarified that the requirement is that driveways must not be within 200 feet of an “intersecting street.” Therefore, the question is whether the intersection of a driveway and a street form an intersecting street. JP acknowledged that the regulation is not exactly clear and how the board would apply it is not exactly clear, but JP wanted Romeo Dubreuil to be aware of the driveway-spacing rule and the regulations for a driveway permit. JP said that the board might conclude that the intersection of a driveway and a street is not an intersecting street.

Romeo Dubreuil referred to the topography of his property. He had a surveyor look at his land. He said that his land slopes downward steeply for only about the first 5 feet into the woods at the edge of the road, but then the topography is a plateau for the next 200 to 300 feet. After the 300 feet, the land slopes down steeply again.

BM said that the initial steep downward slope was about 25 to 30 feet from the edge of the road.

Romeo Dubreuil said that the state has a slope requirement, but the surveyor said that the slope would meet that requirement. Romeo Dubreuil asked what would be the topographical increments that the survey plan should show.

BM said that the survey should show 5-foot contour intervals. BM said that Romeo Dubreuil could ask that the requirement to show contours be waived at places other than the driveway and the septic system.

CW explained that what the board needs, in essence, is evidence that the lot is, in fact, buildable. The board needs to know that a house could be built somewhere on the lot and that the necessary support infrastructure—driveway and septic system—could also be built on the lot.

Romeo Dubreuil asked for clarification of the information that he would have to provide if he were not saying that he was going to make a house lot; that he was just going to make a lot for an unspecified purpose.

CW said that any proposed new lot must be shown to be buildable.

JP said that any lot, to be buildable, will have to have a driveway. JP has not been trying to tell Romeo Dubreuil exactly what will or will not be allowed. The point that JP has been making is that JP wants Romeo Dubreuil to know that there are driveway regulations in the subdivision regulations and that there are additional driveway regulations for getting a permit for a so-called curb cut. The driveway matter may be more than just a question of what George Bachelder wants.

CW said that Romeo Dubreuil should speak to George Bachelder along with Matt Monahan (the circuit-rider planner from the Central New Hampshire Regional Planning Commission). Matt Monahan will cost money as part of the application process.

Jesse Pacheco said that Romeo Dubreuil would like to get answers to some of his specific questions before he spends money on a survey.

CW said that Jesse Pacheco could call Matt Monahan at any time.

LK said that all of the department heads will be involved at the time of a formal application. And Romeo Dubreuil will have to meet all of the requirements. For example, Romeo Dubreuil’s proposed lots do not meet the requirement for a four-to-one length-to-width ratio. Romeo Dubreuil will have to ask for a waiver of that requirement. Matt Monahan will address that issue.

BM said that, without a survey, it is not clear that Romeo Dubreuil’s lot can be subdivided into two 5-acres lots. Any lot under 5 acres must have state subdivision approval.

Romeo Dubreuil said that he had discussed this issue with his surveyor and had determined that the issue would not be a problem. Each of the two lots will actually be slightly more than 5 acres.

BM said that the subdivision regulations will require a survey anyway.

Romeo Dubreuil asked whether the proposed lot with the house on it will require state approval that the lot is buildable.

The board did not know the answer, but JP thought that state approval in such a case should be straightforward.

Romeo Dubreuil summarized what he would need: Contour intervals and information from the highway agent.

AGENDA ITEM ADDED: Conceptual consultation for subdivision of property owned by Wayne Summerford and located at 790 Catamount Road, Pittsfield, N.H. 03263.

BM said that he lives near Wayne Summerford but is not an abutter. BM spoke in favor of a special exception application that Wayne Summerford sought three years ago.

JP recused himself because his mother is an abutter.

CW asked PD to sit in JP’s place.

CW confirmed that the unanimous consensus of the board was that JP should continue as the recording secretary during the discussion of the Summerford project.

Wayne Summerford said that he and his wife moved to their home at 790 Catamount Road in 2003. They have a commercial building and a residence, and they have a variable-rate mortgage from the time of their purchase. Seven and one half years after the purchase, the bank increased the rate to 7.5%. Wayne Summerford is trying to refinance his mortgage, but the commercial building is reducing the equity that he can count in his residence. If Wayne Summerford could split the commercial property from the residential property, then he could refinance his residential mortgage and take another mortgage on the commercial property. The commercial building has its own septic system and well. The commercial building is completely separate from the residence, but the residence and commercial building share a driveway. The problem in subdividing the commercial property from the residential property is that the buildings are too close to each other to meet the setback requirements that would arise from a lot line between the residence and the commercial building. The buildings are 25 feet apart.

BM confirmed that the only problem is meeting the setback requirements that would arise from a lot line between the residence and the commercial building. BM said that Wayne Summerford needs a variance from the setback requirement.

PD asked whether the property were zoned commercial.

BM said that the commercial building was built before zoning, so the property is grandfathered.

PD confirmed that the building is not for a home business.

Wayne Summerford said that the building housed an industrial business.

The board discussed what Wayne Summerford might have to do if he subdivided and if he then wanted to establish uses that he is not proposing now.

Wayne Summerford asked about the state-approval requirement on lots greater than 5 acres.

BM said that any lot greater than 5 acres does not require state approval.

PD asked whether Wayne Summerford could create two 5-acres lots.

Wayne Summerford said that he has 22 acres.

Jesse Pacheco asked for confirmation that each building has its own well and septic system.

Wayne Summerford said yes.

CW asked Carole Dodge to explain whether the subdivision would affect the grandfathering of the property.

Carole Dodge said that, even though Wayne Summerford was not changing his use, he was nonetheless creating two new lots.

PD said that the situation was like remodeling a house. Although the house may be old, everything must be brought up to current code.

Carole Dodge explained that, because the property is being used as residential, not commercial, Wayne Summerford needed to come to the zoning board of adjustment (“ZBA”) for a change of use.

Wayne Summerford corrected that the commercial use is currently in existence.

Carole Dodge said that the tax card probably says residential.

CW asked Carole Dodge to summarize the zoning requirements.

Carole Dodge said that Wayne Summerford needs to go to the ZBA for a change of use and for a variance from the setback requirements.

Jesse Pacheco asked whether the change-of-use permission would give Wayne Summerford what he actually needed.

Carole Dodge said yes, the ZBA permissions will enable a subdivision from the planning board. Wayne Summerford will have to have a shared driveway with the two lots.

BM thought that a change-of-use permit was unnecessary and that a variance from setback requirements was sufficient for the subdivision.

CW called a brief recess from 7:50 PM to 7:55 PM.

AGENDA ITEM 5: Review/discussion final plat approval of cluster Subdivision/Site Plan for Stage Coach Condominiums, Tax Map R44, Lot 1.

JP remained recused because his mother is an abutter, and PD remained seated with the board.

CW confirmed that the unanimous consensus of the board was that JP should continue as the recording secretary during the discussion of the AHG Properties, Inc., project (Stage Coach Condominiums).

LK and Jesse Pacheco disclosed that they had each done work with Forrest “Sonny” Sell, who is the agent of AHG Properties. LK said that he had done his work two or three years ago but would recuse himself if the rest of the board wanted him to do so.

The board did not ask LK to recuse himself.

BM said that he had been on the board that approved the AHG project.

CW said that, on May 11, 2012, AHG Properties had submitted a plat with a request that the planning board chair endorse it as the final plat for recording at the Merrimack County Registry of Deeds. CW said that he had studied the request and the plat to determine whether AHG had, in fact, met all approval conditions. CW said that the review had revealed two problems, the first of which was abandonment. CW referred to the decisions of the zoning board of adjustment (which, on October 18, 2006, approved a special exception for the project), the planning board (which, on April 19, 2007, conditionally approved a subdivision for the project), and the supreme court (which, on October 28, 2009, rejected a challenge to the project). The decision from the supreme court was two and one half years old when AHG submitted their plat on May 11, 2012. CW then read the abandonment condition that the subdivision regulations specify for a completed application (Subdivision Regulations Section 8, A, 2 and 3):

“An application submitted to the Board which is found to be a Completed Application layout, and for which appropriate extensions of time have been granted by the Board in which to take final action, shall be deemed to have been abandoned by the applicant if a final plat has not been submitted within twelve (12) months of the date at which the Board acted to find the application complete.”

“An abandoned application cannot be revived nor is it transferable except as a complete new submission to the Board, unless an extension is granted. An extension may be granted if requested in writing by the applicant at least 30 days prior to the end of the twelve (12) month period.”

CW said that he had concluded that this application is abandoned. CW said that he is now seeking the board’s opinion.

PD asked for clarification that the applicant is asking for the plat to be endorsed and recorded with the notice of decision from the planning board. PD asked whether the notice of decision had already been recorded at the Merrimack County Registry of Deeds.

BM said no. The notice of decision was simply published.

LK asked whether CW had informed the applicant that the board would be discussing their request to endorse their plat.

CW said no.

BM said that the application had been accepted as complete, and then the planning board approved it. BM did not understand how the application was abandoned, because the board accepted it as complete and approved it. BM thought that abandonment, paragraph 1, refers to an application never accepted as complete.

CW referred BM to paragraphs 2 and 3.

PH said that the matter is pretty clear.

BM noted the delay of litigation, but the litigation was resolved two and one half years ago, so BM thinks that CW is correct. The 12-month period for final-plat submission has expired.

PH repeated that the matter is pretty clear. The application is abandoned. The applicant has not done anything with it since the supreme court decision, and he has been sitting on it since then. If he were serious about it.

LK asked whether there had been any appeals since then.

BM said no.

PD said that the applicant could have requested an extension, but he did not.

BM described the litigation and said that the appeal of the planning board decision ended with the supreme court decision on October 28, 2009. That decision started the 12-month period to submit the final plat, but the applicant did not submit the final plat during that 12-month period.

LK asked how did the board know that the applicant had not requested an extension.

CW said that there is no request in the board’s files.

BM said that it was the applicant’s responsibility to know to submit or to request an extension. The requirement is in the subdivision regulations.

LK asked how did the board know that the applicant did not submit a final plat.

Jesse Pacheco said that someone would have had to sign it.

CW said that there is nothing on record that it has been signed, and there is nothing recorded at the registry of deeds.

LK suggested contacting Forrest Sell and expressing the board’s concerns.

BM repeated that the application appears to be abandoned. But if something did come in, then the then-chair of the planning board would have been asked to sign it. BM never heard anything of this since it went to court.

CW said that the May 11, 2012, submission is the first that came in. CW checked with the administrative secretary, Dee Fritz.

LK said that he would be more comfortable if the board would call the applicant in before the board makes a motion and calls the application abandoned.

BM agreed, if the applicant can submit something.

CW explained that, if the board makes a decision on abandonment and issues a notice, then the applicant will have 30 days to appeal it.

BM said that the board could resolve the matter in two ways. First, the board could do as LK suggests, which is to invite the applicant to provide proof that they submitted the final plat within the 12-month period. Second, the board could vote that the application is abandoned, and then let the applicant challenge the decision by appealing in court.

LK and Carole Dodge expressed their preferences to send a written invitation to the applicant to provide proof that they submitted the final plat within the 12-month period.

CW said that the invitation should be strongly written as a consensus of the board that the application is abandoned.

PD suggested wording that, unless the applicant can provide proof, then the board will deem the application abandoned.

CW said that the board must be very clear about what it wants; the board should not say, “just come on in, we are going to discuss this.” The regulations do not appear to leave any room for discussion. If the board does a consensus letter, then the applicant has no deadline to respond, and he does not have to go to court.

PH agreed with LK. The board should send a certified letter. PH does not want this matter to go back to court. The board should send a letter that says, “This is how we feel about it. Come in with something that says we’re wrong, and we’ll listen to you.”

After the board made several revisions to the exact wording of a letter asking the applicant to provide proof that the application is not abandoned, BM moved the board to ask the chair to write a letter as follows:

“To send the applicant a certified letter requesting proof that a final plat was submitted to the town within 12 months of October 28, 2009, or a request for an extension submitted prior to the end of the 30 days prior to the end of the 12-month period, filed and granted by the planning board. If the planning board has not received, within 30 days of the date when this letter of notice is received, then the planning board will have to regard this application as abandoned according to Subdivision Regulations Section 8, A, 2 and 3. The planning board chair shall submit the letter of notice to the town counsel for her review and approval in writing.”

The board discussed seeking advice from the Local Government Center.

LK asked whether Louis Berger Group had been involved.

BM said that he did not remember, but their involvement is irrelevant.

CW said that the board could consult the Local Government Center, but this matter might be one where the board should use the town attorney. CW will discuss the matter with Paul Skowron. The board may have to meet on June 21, 2012. The board is not sitting on this. The board does not want to waste time.

PH seconded BM’s motion to ask the chair to send the above-described letter to AHG Properties.

Vote on the motion to ask the chair to send the above-described letter to AHG Properties: carried 5 – 0 – 0. (Voting “yes”: PD, PH, BM, LK, and CW. Voting “no”: none. Abstaining: none.)

CW confirmed the vote by polling each member of the board.

CW said that now he would address the second problem that his review had revealed. This project is not grandfathered in. For the grandfather statute (RSA 674:39) to take effect—and there is legal precedent for this—the plat has to be recorded. Grandfathering is an issue because the zoning ordinance changed this year, and now there is a two-year time limit on special exceptions. AHG needs a new special exception.

BM disagreed. The town cannot retroactively apply that. That two-year time limit was not in effect at the time of the special exception approval.

CW disagreed with BM. There is no grandfather protection because the plat is not recorded. The five-year exemption does not take effect because the plat is not recorded. Even if the subdivision application is not abandoned, the special exception is not grandfathered in because the plat is not recorded.

LK said that the board should address one issue at a time.

BM said that there was no time limit when AHG received their special exception.

CW said that that does not matter because AHG is not exempted. The five-year exemption takes effect when the plat is submitted.

BM asked where in the zoning ordinance is the new time-limit provision.

CW referred to the subdivision regulations and its recital of the old four-year exemption (now the five-year exemption) of RSA 674:39. So AHG has the problem of special-exception expiration even if the town attorney says that the subdivision application is not abandoned.

LK suggested checking the special-exception expiration with the town attorney.

CW said that that is why CW is bringing this matter to the board now; because perhaps CW should discuss this matter with the town attorney, too.

BM asked whether the plat currently submitted for recording differs significantly from the plat that the planning board approved in 2007.

CW said that he did not have any plat that the planning board approved. CW and PH noted revisions listed on the plat.

PD said that the board should not discuss this second issue with the town attorney unless there were a need shown to discuss it. Discussing an issue that may not be important will waste money.

CW said that he would use the town attorney’s advice on the subdivision-abandonment issue to guide him in deciding whether to raise the special-exception expiration issue. The board must help the applicant as much as the board can. If the applicant has to refile, then the board must tell him that as soon as possible. The deadlines in court are carved in stone. The appeal deadline is 30 days. On the 31st day, they refuse to hear the appeal.

PD said that the town attorney will either approve the wording of the proposed letter or suggest changes. If the town attorney suggests changes, then the board will have to meet again.

CW said that the board will probably have to meet again in two weeks. CW again referred to and read RSA 674:39, I.

BM said that, because the plat is not recorded, the plat does not have the five-year exemption on changes. But if the applicant is not asking for any changes, then why does that matter?

CW said, because the zoning ordinance now gives a two-year expiration to special exceptions. CW said that he will use no more of the town attorney’s time than necessary.

LK said that that was why he wanted the whole matter reviewed, not just the one issue. LK wants to guide the developer through the process correctly.

BM asked for clarification that, because the March 2012 town meeting added a two-year expiration condition to special exceptions, that expiration condition applies retroactively in this case because the applicant had not closed it.

CW said yes. CW asked for the consensus of the board that CW will address with the town attorney the subdivision-abandonment issue, and, depending on the advice on that issue, CW will address the special-exception-expiration condition.

The board agreed.

AGENDA ITEM 6: Review of Proposed Planning Board Rules of Procedure.

No discussion.

AGENDA ITEM 7: New Business

No discussion.

AGENDA ITEM 8: Building Inspector Report

No discussion.

AGENDA ITEM 9: Selectman’s Report –Gerard LeDuc, Selectman Ex Officio

No discussion.

AGENDA ITEM 10: Members Concerns

JP returned to the board.

JP said that he had attended the meeting of the Transportation Advisory Committee (“TAC”). The Central New Hampshire Regional Planning Commission (“CNHRPC”) proposes that municipalities use a road-maintenance software package called Road Surface Management System. CNHRPC says that this software will help municipalities get the most effective road maintenance for the money spent. Because the CNHRPC is offering the software free to municipalities, George Bachelder may want to evaluate it. JP asked CNHRPC to send JP the PowerPoint presentation that CNHRPC made to TAC. JP can e-mail that PowerPoint presentation to Dee Fritz, and CW could put it on the planning board web site.

JP said that, in response to Jesse Pacheco’s concerns about past notices of decision, JP had looked at the some of the notices that JP had received, and JP had found some problems, including that the appeal instructions are wrong. JP composed a model notice of decision that the chair might consider using and that the board might evaluate for other changes.

JP said that he wished that board members who did not raise their hands and who do not have the floor would not interrupt board members who did raise their hands and who do have the floor.

CW asked LK which board—the planning board or the board of selectmen—was the appointing authority for members to the TAC. Planning board members have attended in the past.

LK said that he will consult with George Bachelder and then will send a letter to the planning board.

PD asked whether he would be appointed to the master plan committee, which meets next Monday at 7:00 PM.

CW said that the planning board has not yet appointed PD to the master plan committee.

JP moved to appoint PD to the master plan committee.

PH seconded the motion.

Discussion: None.

Vote to appoint PD to the master plan committee: carried 5 – 0 – 0. (Voting “yes”: JP, PH, BM, LK, and CW. Voting “no”: none. Abstaining: none.)

CW said that PD’s e-mail address on the member-contact list is incorrect. CW will ask Dee Fritz to compose a correct contact list.

CW said that he had asked Dee Fritz to remove references to work sessions in the board’s notice of meeting. Removing references to work sessions will eliminate confusion about whether the board can vote on things at ordinary meetings.

CW said that he will try to get agendas done by Friday. This timing will encourage people to get their information to the board more quickly.

CW wants to put audio recordings of planning board meetings on the Internet. People who want audio recordings will not have to have Dee Fritz copy tapes.

BM said that he was concerned about putting an audio recording on the Internet. Sometimes the tape and the minutes deviate because people do not say exactly what they mean. If the audio recordings are on the Internet, then the recordings must be labeled as not official minutes.

AGENDA ITEM 11: Public Input

No public input.

AGENDA ITEM 9: Adjournment

PH moved to adjourn the meeting.

BM seconded the motion.

Vote to adjourn the planning board meeting of June 7, 2012: carried 5 – 0 – 0. (Voting “yes”: JP, PH, BM, LK, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of June 7, 2012, is adjourned at 9:00 P.M.

Minutes approved: June 21, 2012

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on June 9, 2012, from notes that I made during the planning board meeting on June 7, 2012, and from copies of the two Town tapes that Chairman Clayton Wood made on June 8, 2012.

____________________________________________
Jim Pritchard, planning board recorder and secretary

2 Town tapes.