May 7, 2015 Minutes

These minutes were posted by the Planning.

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

DATE: Thursday, May 7, 2015

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:01 P.M.

AGENDA ITEM 2: Roll Call

Planning board members present:
Clayton Wood (chair),
Pat Heffernan (vice-chair),
Jim Pritchard (secretary),
Daren Nielsen, and
Roland Carter (alternate).

Planning board members absent:
Gerard LeDuc (selectmen’s ex officio member) and
Eric Nilsson (alternate for the selectmen’s ex officio member).

Members of the public appearing before the planning board: Paul Nickerson.

“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

Clayton Wood referred to the town attorney’s memorandum to the board of selectmen dated May 4, 2015, critiquing the planning board’s handling of the Shaw Road Wood subdivision. Clayton Wood said that he had not intended to address the memorandum tonight because the planning board has had the memorandum for only two days, but Clayton Wood said that he had learned that the memorandum was put on the town web site, so Clayton Wood thought that the planning board should address the memorandum promptly. Clayton Wood said that he would add this matter between agenda items 6 and 7.

AGENDA ITEM 4: Public Input

Paul Nickerson presented information from section 33.01 of New Hampshire Practice (fourth edition, 2010, Peter J. Loughlin). Paul Nickerson’s point was that the board of selectmen has the authority to appeal zoning board of adjustment decisions to superior court (RSA 677:2 and RSA 677:4) but that the board of selectmen has no similar authority (1) to move the planning board to rehear planning board decisions or (2) to appeal planning board decisions to superior court (RSA 677:15, I and I-a).

AGENDA ITEM 5: Approval of the Minutes of the April 2, 2015, April 16, 2015, November 20, 2014, January 31, 2015 and February 5, 2015 Meetings

Clayton Wood moved to approve the minutes of April 2, 2015, as written in draft.

Jim Pritchard seconded the motion.

Discussion:

Jim Pritchard asked for the following change:
Agenda item added after agenda item 9, page 16: Change “Steven” to “Stephen”

Daren Nielsen asked for the following change:
Agenda item added after agenda item 9, page 16: Change “should to make applicants” to “should make applicants”

Vote to approve the minutes of April 2, 2015, with the changes that Jim Pritchard and Daren Nielsen requested: carried 3 – 0 – 1. (Voting “yes”: Jim Pritchard, Daren Nielsen, and Clayton Wood. Voting “no”: none. Abstaining: Pat Heffernan.)

Clayton Wood moved to approve the minutes of April 16, 2015, as written in draft.

Daren Nielsen seconded the motion.

Discussion:

No board member stated any problems in the draft minutes.

Vote to approve the minutes of April 16, 2015, as written in draft: carried 3 – 0 – 1. (Voting “yes”: Jim Pritchard, Daren Nielsen, and Clayton Wood. Voting “no”: none. Abstaining: Pat Heffernan.)

Clayton Wood moved to approve the minutes of November 20, 2014, as written in draft on November 26, 2014.

Jim Pritchard seconded the motion.

Discussion:

Daren Nielsen said that neither he nor Roland Carter had been present at the November 20, 2014, meeting but that he, Daren Nielsen, had listened to the audio recording and that he would sit for the approval of these minutes.

Jim Pritchard asked for the following changes:
Agenda item 3, page 4: Change “administrative decision” to “administrative appeal”
Throughout the minutes document: Change “Beauoin” to “Beaudoin”

Vote to approve the minutes of November 20, 2014, with the changes that Jim Pritchard requested: carried 3 – 0 – 1. (Voting “yes”: Jim Pritchard, Daren Nielsen, and Clayton Wood. Voting “no”: none. Abstaining: Pat Heffernan.)

Daren Nielsen recused himself from the approval of the minutes of January 31, 2015.

Roland Carter sat for Daren Nielsen.

Jim Pritchard moved to approve the minutes of January 31, 2015, as written in draft.

Roland Carter seconded the motion.

Discussion:

Jim Pritchard asked for the following change:
Page 5: change “revitalizing Pittsfield’s downtown would not add much accessible value” to “revitalizing Pittsfield’s downtown would not add much assessable value”

Vote to approve the minutes of January 31, 2015, with the change that Jim Pritchard requested: carried 4 – 0 – 0. (Voting “yes”: Jim Pritchard, Pat Heffernan, Clayton Wood, and Roland Carter. Voting “no”: none. Abstaining: none.)

Daren Nielsen said that he would remain recused because, although he had attended the meeting of February 5, 2015, Roland Carter had also attended the meeting.

Jim Pritchard moved to approve the minutes of February 5, 2015, as written in draft.

Roland Carter seconded the motion.

Jim Pritchard asked for the following change:
Agenda item 2, page 1: add a carriage return after “Planning board members absent:”

Vote to approve the minutes of February 5, 2015, with the change that Jim Pritchard requested: carried 4 – 0 – 0. (Voting “yes”: Jim Pritchard, Pat Heffernan, Clayton Wood, and Roland Carter. Voting “no”: none. Abstaining: none.)

Roland Carter left the board, and Daren Nielsen returned.

Jim Pritchard said that the public had complained loudly at the selectmen’s meeting of April 21, 2015, about the practice of using initials to identify board members. Jim Pritchard said that, in view of the public’s objection to this practice, he wanted to discontinue the practice of using initials in the planning board’s minutes.

The board agreed to Jim Pritchard’s proposal to spell out board members’ names in full in the minutes.

AGENDA ITEM 6: Master Plan Committee’s Letter

The planning board considered a letter and a request from the master plan committee that the planning board approve the master plan committee’s sending the letter to the zoning board of adjustment (ZBA). Jim Pritchard (a member of the master plan committee) explained that the letter addresses ZBA chair Carole Dodge’s statement to the planning board on March 19, 2015, that the ZBA had the master plan committee’s “blessing” to prepare zoning amendments. The letter clarifies that the master plan committee’s intent had been not to approve the ZBA’s planned effort but to show the ZBA the courtesy of listening to what information would be gathered. The letter concludes by saying, “The Master Plan Committee knows of no state law enabling the ZBA to prepare or propose zoning amendments.”

Jim Pritchard said that he wanted the letter’s complementary closing to be clear that Ralph Odell was signing the letter for the master plan committee as a whole and not just for himself.

Clayton Wood said that he did not know any reason why the master plan committee needed the planning board’s approval to send the letter.

Jim Pritchard agreed but said that the master plan committee preferred to have the planning board’s approval because the master plan committee is a subcommittee of the planning board.

Clayton Wood asked what the master plan committee’s vote was.

Jim Pritchard said that the vote was 5-0-0. (Yes: Ralph Odell, Ted Mitchell, Jim Pritchard, Roland Carter, and Helen Schoppmeyer on April 27, 2015.)

Jim Pritchard moved the planning board to approve the master plan committee’s sending the letter to the zoning board of adjustment.

Clayton Wood seconded the motion.

Discussion:

Clayton Wood said that he did not expect the master plan committee to get the planning board’s approval for everything. Clayton Wood said that “Ralph [Odell] does an incredible job.”

Jim Pritchard agreed that Ralph Odell does very important work.

Vote to approve the master plan committee’s sending the letter to the zoning board of adjustment: carried 4 – 0 – 0. (Voting “yes”: Jim Pritchard, Daren Nielsen, Pat Heffernan, and Clayton Wood. Voting “no”: none. Abstaining: none.)

AGENDA ITEM ADDED: A Letter Answering and Rebutting the Town Attorney’s Memorandum of May 4, 2015

Clayton Wood referred to the town attorney’s memorandum to the board of selectmen dated May 4, 2015, critiquing the planning board’s handling of the Shaw Road Wood subdivision. Clayton Wood repeated his earlier statement that he had not intended to address the memorandum tonight, but Clayton Wood said that he had learned that the memorandum was put on the town web site, so Clayton Wood thought that the planning board should address the memorandum promptly. Clayton Wood said that he had administered the web site for eight years and had never seen any document like this posted there before. Clayton Wood said that he had asked Jim Pritchard to help him prepare a response because he, Clayton Wood, did not know where this matter was going.

The board digressed from the town attorney’s memorandum to discuss the form of electronic documents that board members typically receive in addition to the paper versions. Clayton Wood said that he would send documents in both PDF (portable document format) and Microsoft Word format.

Clayton Wood said that the town attorney had said in essence that the planning board had reached correct results but had used imperfect procedure to reach those correct results.

Clayton Wood said that the town attorney’s investigation far exceeded the scope of the Woods’ complaint and appeared to have been a personal attack against Clayton Wood. Clayton Wood said that the board of selectmen’s only jurisdiction in the investigation was their authority to remove Clayton Wood from the planning board. (RSA 673:13.)

Daren Nielsen said that the town attorney’s memorandum makes clear that removing Clayton Wood from the planning board had been the ultimate purpose of the investigation. Daren Nielsen said that the town attorney would not have answered the question of removing Clayton Wood from the planning board unless someone had directed the town attorney to answer that question.

Jim Pritchard agreed with Daren Nielsen.

Clayton Wood said that the town attorney’s statement was biased because he agreed that the Woods’ shared driveway was a subdivision road requiring a road-construction plan, but he did not criticize the planning board for failing to require a road-construction plan.

Daren Nielsen said that he wanted to know what, specifically, the town attorney had been asked to do. Daren Nielsen thought that these requests should be a matter of public record.

Jim Pritchard said that the board of selectmen must have gone into non-public session on this matter because the public record is completely silent on any discussion of removing Clayton Wood from the planning board and because the selectmen clearly asked the town attorney to investigate Clayton Wood’s removal and to tell the selectmen what their options were.

Clayton Wood said that he had been present when the selectmen voted to refer the matter to the town attorney. The vote was to investigate the Woods’ complaint. (See planning board minutes of April 16, 2015, appendix, presenting a complete verbatim transcript of the board of selectmen’s public action on April 7, 2015.)

Jim Pritchard said that the verbatim transcript in the planning board’s minutes of April 16, 2015, (appendix) gives no hint that the selectmen were trying to remove Clayton Wood, but removing Clayton Wood is clearly what the selectmen were trying to do.

Daren Nielsen said that he was troubled by the selectmen’s presumption of malfeasance. Malfeasance is a very high standard to prove.

Jim Pritchard said that the selectmen had not focused on malfeasance. The selectmen had asked the town attorney to consider all of the three causes for removal under RSA 673:13: inefficiency, neglect of duty, and malfeasance in office. Jim Pritchard said that the selectmen must have asked about removing Clayton Wood by any means possible.

Clayton Wood said that the board of selectmen is always saying that it must intervene in planning board business because the planning board is putting the town at risk. The board of selectmen cannot show that the planning board put the town at risk in the Shaw Road Wood subdivision.

Daren Nielsen agreed.

Clayton Wood said that the planning board’s detailed minutes had protected the board against an adverse report from the town attorney. Clayton Wood said that he had done nothing but help the Shaw Road Woods.

Daren Nielsen said that this case shows why detailed minutes are important.

Paul Nickerson said that the town attorney had not been able to find anything substantive against the planning board. Paul Nickerson said that the Woods had had no right to complain to the board of selectmen and that their proper venue to complain was the superior court.

Daren Nielsen asked whether any of the town attorney’s procedural objections had been valid.

Jim Pritchard said that he had found no valid objections to procedure.

Clayton Wood said that the quorum objection was a fault with the rules, not with the board’s procedure, and that the new rules (adopted April 2, 2015) corrected this fault. Clayton Wood referred to the town attorney’s objection that Clayton Wood had exceeded his authority in hiring KV Partners. Clayton Wood said that both the previous rules and the current rules authorize him to act for the board in certain situations. (Prior rule II, 5, and current rule III, 9.) Clayton Wood said that the town attorney’s objection that the board followed ad hoc rules was “sour grapes” because the board had a history of using the same practice to decide whether to consider a motion to reconsider or reverse. (Comment of recording secretary Jim Pritchard: “ad hoc” means “for the particular end or purpose at hand and without reference to wider application or employment.” Webster’s Third New International Dictionary, Unabridged.)

Jim Pritchard said that the board’s rules of procedure were and still are silent on who may move to reconsider or reverse a board decision. This silence is an example of “government would not work without some play in the joints.” (Approximate quote from U. S. Supreme Court justice Oliver Wendell Holmes.) Jim Pritchard said that the board had adopted a practice on who may move to reconsider or reverse, and, because the board had established the practice, (1) the practice was not ad hoc, and (2) fairness required the board to be consistent in applying the practice. Jim Pritchard said that he had been drawing on the doctrine of administrative gloss.

Clayton Wood said that the board has had a bad habit of changing its mind.

Daren Nielsen said that perhaps the board should consider formalizing the rule in the board’s rules of procedure.

Pat Heffernan said that he did not want to make reversing decisions more difficult. The board should have free ability to correct its errors.

Jim Pritchard said that, in his many years of watching planning board meetings, he had never seen one majority respect what another majority did previously even when no actual error exists. Jim Pritchard said that he did not want to rush into a formal rule restricting who may move to reconsider or reverse.

Clayton Wood discussed the establishment of the practice on who may move to reconsider or reverse in the Rustic Crust/Klitz case. Clayton Wood said that applying this practice had always worked against him. Clayton Wood said that the board should keep its rules more current than it has in the past.

Daren Nielsen said that one reason why the board had gotten into trouble with the Shaw Road Wood subdivision was that the board had allowed the Woods a cost overrun in their escrow account. The board should consider a subdivision regulation prohibiting such cost overruns.

Clayton Wood said that he is working with the board’s administrative secretary, Dee Fritz, to revise the board’s procedures on fees.

Jim Pritchard said that the draft subdivision regulations (to be considered in agenda item 7) get the board “out of the banking business.”

Clayton Wood discussed that the board needed to become more knowledgeable about what to require of a land-use application.

Clayton Wood repeated that the town attorney’s investigation exceeded the Woods’ complaint and exceeded the board of selectmen’s public vote on April 7, 2015.

Jim Pritchard moved the planning board to approve the rebuttal letter to the town attorney’s report on the Shaw Road Wood subdivision.

Clayton Wood seconded the motion.

Discussion:

Daren Nielsen said that he wanted to finish reading the letter because he had not had enough time to read it before the meeting.

Clayton Wood said that he had not intended to raise this matter at tonight’s meeting but that the publicizing of the town attorney’s memorandum on the town web site had forced the matter.

Daren Nielsen and Pat Heffernan suggested deferring consideration of the letter.

Jim Pritchard said that he did not want to defer consideration of the letter because the town attorney’s memorandum is on the town web site and because the board of selectmen is not deferring anything.

Daren Nielsen asked Jim Pritchard to explain the Appeal of Nolan case that the town attorney had cited relative to the town attorney’s objection that the planning board had adopted rules ad hoc. (Appeal of Nolan, 134 N.H. 723 (1991).)

Jim Pritchard said that, in the Appeal of Nolan, the administrative agency in question had had applicable regulations in place but had ignored those regulations and had effectively inserted new regulations for that particular case. The Appeal of Nolan is not like the Shaw Road Wood situation because the Pittsfield Planning Board was not inserting a new rule where an old one existed but was instead relying on historical practice established to fill a procedural hole a year ago in the Rustic Crust/Klitz matter. The board was not making up a rule just for the Woods, which is what “ad hoc” would mean.

Clayton Wood said that the practice actually preexisted the Rustic Crust/Klitz case.

Jim Pritchard said that the rules do not have to micromanage the board’s activities. Where the rules are silent, the board can try something on a trial basis to see how it works without writing it into the rules. The decision to try something has to be outside any particular person’s application.

Clayton Wood called a brief recess at 8:20 PM to give board members a chance to read the letter.

The meeting resumed at 8:25 PM.

Jim Pritchard reviewed the town attorney’s memorandum and the rebuttal letter’s response point by point:

The town attorney’s summary findings and the rebuttal letter’s responses:

The town attorney found and the planning board agrees that the shared driveway in the Shaw Road Wood subdivision is a subdivision road to which the planning board’s road-construction standards apply. (See Davis v. Barrington, 127 N.H. 202, 497 A.2d 1232 (1985).)

The town attorney found and the planning board agrees that the planning board properly charged the Woods for third-party review. (See RSA 676:4-b, I.)

The town attorney found and the planning board agrees that there is no basis to remove Clayton Wood from the planning board. The planning board fully supports and has confidence in Chair Wood.

The town attorney’s Legal Analysis, II, A, on procedure:

“At the time of the August 7, 2014 meeting, the rules of procedure defined a quorum as four members.2 See Rules of Procedure IV.8. Despite the applicants’ willingness to proceed, the August 7, 2014 meeting was conducted with only three board members, which is a violation. While RSA 673:10 states: ‘[a] majority of the membership of a local land use board shall constitute the quorum necessary in order to transact business at any meeting of a local land use board,’ this does not excuse the board from failing to follow its own rules of procedure.”

The rebuttal letter’s response in brief:

The town attorney is mistaken; the statutory definition of a quorum (RSA 673:10) in fact requires the board to ignore a conflicting local rule because the board cannot exercise powers in conflict with state enabling laws. See Piper v. Meredith, 110 N.H. 291, 266 A.2d 103 (1970):

“It is a long established principle under our law that towns are but subdivisions of the State and have only the powers the State grants to them. It follows that towns have such powers as are expressly granted to them by the legislature and such as are necessarily implied or incidental thereto.”

The town attorney’s Legal Analysis, II, B, on procedure:

“The Chairman’s unilateral action in engaging town engineering services was outside the scope of his authority”

The rebuttal letter’s response in brief:

The town attorney has overlooked the planning board’s rule that “the chair shall act for the board on all matters not requiring a vote of the members.” (Prior rule II, 5, and current rule III, 9.) In the Shaw Road Wood case, the board’s determination that the shared driveway was a subdivision road requiring a road-construction plan established a need for third-party expert review; thus no vote was required to engage the third-party reviewer. The rebuttal letter cites Bill Miskoe’s complaint of February 25, 2015, as admitting that “This [subdivision-road] designation, while made by only two board members, required the board to retain an engineering consultant to review the design of the subdivision road.” (Emphasis added on “required.”)

The town attorney’s Legal Analysis, II, C, on procedure:

“Best practice calls for applicants to be notified before the board engages special investigative services.”

“The fact that permission to access the property with the town’s engineer was sought is not the same as notifying the applicants that there will be a charge.”

The rebuttal letter’s response in brief:

The record of the Wood case is full of evidence that the planning board did tell the Woods and their agent that the board would do third-party review and that the Woods understood.

The fact that the planning board sought permission to access the Wood property with the town engineer essentially is the same as notifying the applicants that there will be a charge because RSA 676:4, I, (g), and RSA 676:4-b, I, say that an applicant may be charged and because the fact that a statute squarely addresses this issue puts the applicant “on notice.” (Thomas v. Town of Hooksett, 153 N.H. 717, 903 A.2d 963 (2006).)

Finally, the planning board might mislead applicants if the board were to emphasize one statute and not others that may apply. Generally speaking, every applicable law is important. The statutes, subdivision regulations, and zoning ordinance are readily available for applicants to review.

The town attorney’s Legal Analysis, II, D, on procedure:

“At the November 6, 2014 meeting, Mr. Miskoe moved to reconsider the board’s previous motion requiring a road-construction plan. Mr. Pritchard claimed past-practice directed that reconsideration motions be made by a member who had originally voted for the motion. Despite 9 Mr. Pritchard’s contention, there is no express rule prohibiting Mr. Miskoe from making a motion to reconsider. Relying on past-practice to govern its meetings is unlawful ad hoc rule-making and should cease immediately. Cf. Appeal of Nolan, 134 N.H. 723, 728 (1991) (‘The law requires that an administrative agency must follow its own rules and regulations, and an agency may not undertake ad hoc rule-making.’).”

The rebuttal letter’s response in brief:

The town attorney’s quote from the Appeal of Nolan is out of context because the quote fails to say that the administrative agency in the Nolan case had had applicable regulations in place but had ignored those regulations and had effectively inserted new regulations for that particular case. By contrast, the Pittsfield Planning Board in the Shaw Road Wood case did not have a formally adopted applicable rule on who may move to reconsider or reverse a previous decision but did have a previously established practice and was following that practice. Not following the practice when the board had consistently followed it previously would have been ad hoc.

Pat Heffernan said that he was going to vote against the rebuttal letter because he had not had enough time to study and understand it.

Jim Pritchard said that he had not wanted to address this matter tonight but that the town attorney’s memorandum is on the town web site.

Vote to approve the rebuttal letter to the town attorney’s report on the Shaw Road Wood subdivision: carried 3 – 1 – 0. (Voting “yes”: Jim Pritchard, Daren Nielsen, and Clayton Wood. Voting “no”: Pat Heffernan. Abstaining: none.)

AGENDA ITEM 7: Subdivision Regulations

The board discussed the draft subdivision regulations revision dated May 4, 2015, which builds on the draft dated September 3, 2014, that the board considered on September 18, 2014. The goals of the revision project are (1) to re-order the existing material logically, (2) to have a unified and comprehensive checklist for a completed application, (3) to have a list of potential conditions precedent, (4) to fill holes, and (5) to clarify matters that board members do not understand.

Clayton Wood discussed some of the things that he had learned at the recent conference of the New Hampshire Office of Energy and Planning last Saturday, May 2, 2015. Clayton Wood had attended a lecture on recording procedures of registries of deeds. Registries are receiving old plats (three years and more) and plats with unsatisfied conditions precedent. Clayton Wood explained that a recorded plat is just a “snapshot” of the plat at the time of recording and does not guarantee final approval of the plat.

Jim Pritchard said that he had made notations of every regulation that might impose a condition precedent. These notations will allow the board to create a checklist of potential conditions precedent. A list of potential conditions precedent is important because board members will forget potential conditions precedent if the board does not have a checklist to consult when the applicant requests that his plat be endorsed as having final approval.

The board discussed the current abandonment regulation (current subdivision regulations section 8, A) and the revised version (draft subdivision regulations article 7, section 1). Jim Pritchard said that the re-write was the same as the old regulation except that the new abandonment time starts with conditional approval under RSA 676:4, I, (c), (1). Daren Nielsen noted that the abandonment regulations authorize the board to grant an extension to the normal one-year period to satisfy conditions precedent but that the regulations do not limit how long the extension may be or how many extensions may be granted. Daren Nielsen suggested that the regulations should have limits consistent with the Merrimack County Registry of Deeds’s (M.C.R.D.’s) practice. Clayton Wood said that he would get details on what the M.C.R.D. wants.

Jim Pritchard said that the new checklist (article 5, section 1, (d)) for a completed application now includes statutory requirements for recording.

Clayton Wood said that the board might have to hire professional help to resolve some of the questions, such as what type of permanent boundary markers the subdivision regulations require, where the regulations currently contradict themselves or are unclear.

Clayton Wood said that the board had received an application for a lot-line adjustment but that the application had not included enough money for third-party review. Clayton Wood said that he would not allow the application to proceed without enough money in escrow.

AGENDA ITEM 8: Selectman’s Report

There was no selectman’s report because both selectmen’s representatives, Gerard LeDuc and Eric Nilsson, were absent.

AGENDA ITEM 9: Members Concerns

No board member stated any concerns.

AGENDA ITEM 10: Public Input

Paul Nickerson discussed verifying information that plats should have.

AGENDA ITEM 11: Adjournment

Clayton Wood moved to adjourn the meeting.

Pat Heffernan seconded the motion.

Vote to adjourn the planning board meeting of May 7, 2015: carried 4 – 0 – 0. Voting “yes”: Jim Pritchard, Daren Nielsen, Pat Heffernan, and Clayton Wood. Voting “no”: none. Abstaining: none. The planning board meeting of May 7, 2015, is adjourned at 9:11 P.M.

Minutes approved: June 4, 2015

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on May 9, 2015, from notes that I made during the planning board meeting on May 7, 2015, and from a copy that Chairman Clayton Wood made on May 8, 2015, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary