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

DATE: Thursday, March 6, 2014

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:06 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:
Peter Dow (PD), alternate planning board member, and
Larry Konopka (LK), selectmen’s ex officio alternate planning board member.

Other town officials present: None.

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 added approval of the minutes of February 8, 2014—the all-town-boards meeting—to the agenda.

AGENDA ITEM 4: Approvals of the Minutes of the February 6, 2014, and February 8, 2014, Meetings

BM moved to approve the minutes of February 6, 2014, as written in draft.

EN seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

CW referred to the following three paragraphs:

“Jesse Pacheco asked whether the board could withhold merger approval if there were some violation of town regulations at the property.

“CW and JP said that the town could withhold approval if and only if “such merger would create a violation of then-current ordinances or regulations.” (RSA 674:39-a.) Because the merged lot will itself be a new nonconforming lot, CW and JP thought that the board technically could disapprove the lot merger.

“BM disagreed and said that the merger would not create any new nonconformance.”

CW said that he was not sure that the board actually had the authority to approve a lot merger where the resulting lot would be nonconforming. CW said that he was not suggesting to change the board’s practice of approving all lot mergers but that he was merely pointing out a problem in the zoning ordinance.

BM asked how CW was proposing to correct the problem.

JP read the statute, RSA 674:39-a, in question:

“Except where such merger would create a violation of then-current ordinances or regulations, all such requests shall be approved…”

JP said that a nonconforming lot created by merger does create a new nonconformance because the lot created by merger is, in fact, a new lot. JP thought that the statutory provision was vague on whether the planning board must actually deny requests to approver mergers resulting in nonconforming lots. JP said that the zoning ordinance should be revised to exempt lot mergers from the frontage and area requirements. This change would eliminate the problem that CW had described.

Vote to approve the minutes of February 6, 2014, as written in draft: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, CW, and BM. Voting “no”: none. Abstaining: none.)

BM moved to approve the minutes of February 8, 2014, as written in draft.

EN seconded the motion.

Discussion:

JP asked for the following changes:

Page 3: change “Department chairs present the needs of their boards to the board of selectmen” to “Town board chairs present the needs of their boards to the board of selectmen”.
Page 5: change “Clayton Wood uses reports from department heads” to “Clayton Wood said that the planning board uses reports from department heads”.
Page 5: change “if an application has wetlands” to “if an application had wetlands”.

Vote to approve the minutes of February 8, 2014, with the changes that JP requested: carried 3 – 0 – 2. (Voting “yes”: JP, CW, and BM. Voting “no”: none. Abstaining: EN and PH.)

AGENDA ITEM 5: Selectman’s Report – Eric Nilsson, Selectman Ex Officio

EN said that the board of selectmen had created a committee to recruit a new town administrator. LK is the chair of the committee.

BM asked when the current town administrator’s term expires.

EN said that the current town administrator’s term expires on the date of the town meeting. 17 applicants have applied for the position.

EN said that the fire marshal will inspect the library on Monday.

BM and EN discussed the fire alarm system in the library.

AGENDA ITEM 6: Members’ Concerns

Members’ concern 1: JP’s concern with LK’s concern that the front setback regulation of the zoning ordinance is vague.

JP said that LK had asked JP to bring to the board’s attention a problem of vagueness in the front setback regulation of the zoning ordinance. The specific question that LK had presented was in the context of LK’s own property and was whether the front setback regulation applies to both street boundaries of LK’s corner lot on Shaw Road and Granny White Road, where the boundary on Shaw Road gives access to the lot and is the shorter street boundary, and where the boundary on Granny White Road gives no access to the lot and is the longer street boundary. JP had distributed to the board a letter to LK giving JP’s answer and analysis. The zoning ordinance has no verbiage explaining the front setback regulation, so JP’s letter interpreted the meaning of “front” from the definition of “frontage.” From the meaning of “front” in the definition of “frontage,” JP’s letter concluded that the street boundary on Shaw Road is the only front of LK’s lot and that the street boundary on Granny White Road is not a second front. JP’s letter cited a number of authorities agreeing with JP’s interpretation of “front”: Black’s Law Dictionary, fourth edition; Model Subdivision Regulations, Text and Commentary (Robert H. Freilich and Peter S. Levi (1975)); Rhinehart v. Leitch, 107 Conn. 400, 140 A. 763 (1928); Aller v. Berkeley Hall School Foundation, 40 Cal. App. 2d 31, 103 P.2d 1052 (1940). JP’s letter also stated JP’s opinion that JP’s interpretation was not what the drafters of the Pittsfield Zoning Ordinance had intended, and JP’s letter cited The New Illustrated Book of Development Definitions (Harvey S. Moskowitz and Carl G. Lindbloom), the Concord Zoning Ordinance, and the Manchester Zoning Ordinance as authorities indicating that making all street boundaries subject to the front setback regulation is customary practice. JP’s letter said that, in LK’s case, the town should follow JP’s interpretation instead of the customary practice because following the customary practice would add to the zoning ordinance words and meaning that are not currently there.

JP said that his letter assumed that the town had not faced LK’s question before and had not adopted a practice of requiring front setbacks from all street boundaries. If the town had adopted such a practice, then that practice would have put an administrative gloss on the vague setback regulation and would require the town to continue the practice. (DHB v. Pembroke, 152 N.H. 314, 876 A.2d 206 (2005).)

CW said that he did not think that the town had faced this question before.

BM asked for clarification that JP was suggesting that the zoning ordinance be amended.

JP and CW said yes.

BM said that the board should get legal advice on how to write the amendment.

The rest of the board thought that the board does not need an attorney to write a setback regulation.

JP said that the opinion of the code enforcement officer, Jesse Pacheco, is the only opinion that matters now. If Jesse Pacheco interprets the front setback regulation in a way that LK does not like, then LK can appeal to the zoning board of adjustment for either (1) a reversal of the code enforcement officer’s interpretation or (2) a variance from the front setback regulation.

JP said that the front setback regulation as currently presented in the zoning ordinance is a mistake and should be corrected. All street boundaries should be subject to the same setback regulation. JP said that the current definition of “setback” in the zoning ordinance is very bad and should be corrected too.

BM said that the setback regulation should be clear in prohibiting underground structures such as wells and septic system leach fields from setback yards. Wells should be set back from streets to avoid salt pollution.

Members’ concern 2: CW’s concern with the town’s representatives to the Central New Hampshire Regional Planning Commission.

CW said that the board of selectmen had unanimously approved Ted Mitchell and JP as the town’s two representatives to the Central New Hampshire Regional Planning Commission.

Members’ concern 3: CW’s concern with the town’s recent all-board-chairs meeting.

CW said that, at the all-board-chairs meeting on March 5, 2014, he had discussed (1) the need for a plan for the town’s Commercial District and (2) the possibility of revising the definition of “home occupation.”

Members’ concern 4: BM’s concern with the board’s lack of alternates.

BM said that the board should advertise for alternates.

CW said that PD had agreed to be available if the board needs PD before April 16, 2014, when PD’s term officially ends. PD does not intend to apply for reappointment. CW agreed to advertise for new alternates now.

AGENDA ITEM 7: Public Input

No public input.

AGENDA ITEM 8: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of March 6, 2014: carried 5 – 0 – 0. (Voting “yes”: JP, EN, PH, CW, and BM. Voting “no”: none. Abstaining: none.) The planning board meeting of March 6, 2014, is adjourned at 7:48 P.M.

Minutes approved: April 3, 2014

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on March 8, 2014, from notes that I made during the planning board meeting on March 6, 2014, and from a copy that Chairman Clayton Wood made on March 7, 2014, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary