October 16, 2014 Minutes

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

DATE: Thursday, October 16, 2014

AGENDA ITEM 1: Call to Order

Chair Clayton Wood called the meeting to order at 7:02 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;
Roland Carter (RC), alternate planning board member; and
Gerard LeDuc (GL), selectmen’s ex officio alternate planning board member.

Planning board members absent:
Eric Nilsson (EN), selectmen’s ex officio 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 said that he wanted to focus on agenda item 5, the review of the draft definitions list to replace zoning ordinance article 3.

AGENDA ITEM 4: Approval of the Minutes of the October 2, 2014 Meeting

BM moved to approve the minutes of October 2, 2014, as written in draft.

CW seconded the motion.

Discussion:

No board member saw any problems in the draft minutes.

Vote to approve the minutes of October 2, 2014, as written in draft: carried 4 – 0 – 1. (Voting “yes”: JP, PH, CW, and BM. Voting “no”: none. Abstaining: GL.)

After tonight’s meeting, recording secretary JP noticed that the draft minutes of October 2, 2014, have two errors: (1) agenda items 6 through 11 are mistakenly numbered as agenda items 5 through 10 (the draft minutes state two agenda items 5), and (2) the vote to adjourn is mistakenly stated as 4 – 0 – 0 when the vote was 5 – 0 – 0. JP corrected these errors.

AGENDA ITEM 5: Review – Proposed Zoning Ordinance Amendment New Definitions Proposed for Article 3, Definitions

JP said that his intent in drafting the proposed definitions had been to state clearly the intent of the existing definitions. The exception to this intent is the definition of “dwelling above business,” which is proposed to replace “combined dwelling and business.”

The board first discussed the proposed definition of “accessory structure”:

ACCESSORY STRUCTURE: “ACCESSORY STRUCTURE” means a DETACHED STRUCTURE whose use is occasioned by and subordinate to a PRINCIPAL USE and that is on the same LOT with the PRINCIPAL USE. (See Salem v. Durrett, 125 N.H. 29, 480 A.2d 9 (1984); Dumais v. Somersworth, 101 N.H. 111, 134 A.2d 700 (1957); Treisman v. Kamen, 126 N.H. 372, 493 A.2d 466 (1985); Treisman v. Bedford, 132 N.H. 54, 563 A.2d 786 (1989).)

BM said that “detached” should not be a defining condition of “accessory structure.” BM said that a barn attached to a house should not be considered part of the house.

JP cited the proposed definition of “principal structure”:

PRINCIPAL STRUCTURE: “PRINCIPAL STRUCTURE” means a STRUCTURE where a PRINCIPAL USE is principally conducted. Every STRUCTURE that is attached to a PRINCIPAL STRUCTURE and that would be an ACCESSORY STRUCTURE if DETACHED from the PRINCIPAL STRUCTURE shall be deemed to be part of the PRINCIPAL STRUCTURE.

JP said that the “detached” condition in the proposed definition of “accessory structure” is intended to distinguish accessory structures from principal structures. By contrast, “Every STRUCTURE that is attached to a PRINCIPAL STRUCTURE and that would be an ACCESSORY STRUCTURE if DETACHED from the PRINCIPAL STRUCTURE shall be deemed to be part of the PRINCIPAL STRUCTURE.”

BM said that the case law citations are improper because the New Hampshire Supreme Court is very inconsistent in its decisions and changes New Hampshire’s common law almost every day.

CW said that the case law citations can be helpful to officials who will have to administer the zoning ordinance.

BM disagreed and said that he does not want to be a lawyer.

JP said that New Hampshire common law is stable and that it changes much less than the statutory law changes; the state legislature changes statutes every year. JP said that the citations for accessory uses are important because the law of accessory uses is mostly common law. JP said that the state statutes do not define “accessory use.”

CW said that the common law of accessory uses and principal uses controlled one of the zoning board of adjustment’s decisions last summer. CW said that the accessory use happening inside the accessory structure is the important part of the definition.

BM asked again why “accessory structure” must be defined as detached.

JP said that an accessory structure did not have to be defined as detached but that defining it otherwise would be vague because the distinction between a principal structure and an accessory structure would be vague.

BM said that the zoning ordinance should not refer to structures but should refer only to principal uses and accessory uses.

JP said that a definition of “principal structure” is necessary because a lot may have multiple principal uses but only one principal structure.

BM said that a lot may have only one principal use.

JP said that BM was mistaken. JP cited the example of a building containing a business downstairs and an apartment upstairs. Neither of these two uses is accessory to the other.

BM said that the zoning ordinance specifically allowed JP’s example as a “mixed use.”

JP said that BM was mistaken and that the zoning ordinance never refers to a “mixed use” on one lot.

BM asked how the zoning ordinance addresses multiple non-accessory uses on one lot.

JP said that the zoning ordinance addresses multiple non-accessory uses on one lot via the use table and the absence of any restriction on the number of principal uses.

CW asked about a comment in the proposed draft definitions:

“A regulation is needed to limit the number of principal buildings to one on one lot.”

CW asked whether such a regulation does or does not exist now.

JP said that the zoning ordinance states no such regulation explicitly but that the current definition of “lot” does suggest the intent:

“A lot is a parcel of land occupied or to be occupied by only one single family structure or commercial/industrial structure and the accessory buildings or uses customarily incident to it.”

JP said that the condition specifying one principal building defines a lot but does not regulate uses per se. Thus a parcel of land having more than one principal building is simply not a “lot” as defined. JP cited a comment at the beginning of the draft definitions proposal:

“‘Given that definitions simplify, clarify, and translate, it might be well to point out what definitions should not be. The most important limitation is that the definitions should not contain the control elements or standards that regulate the defined word or phrase.’ (The New Illustrated Book of Development Definitions (Harvey S. Moskowitz and Carl G. Lindbloom), Introduction.)”

JP said that the current definition of “lot” violates this important rule. The intent of the zoning ordinance is to say that a lot may have only one principal building, but instead, the zoning ordinance defines a lot as a parcel of land that has only one principal building on it. Other than the intent that the definition of “lot,” expresses, the zoning ordinance has no explicit regulation of the number of principal buildings on any single lot.

The board next discussed the proposed definition of “home occupation”:

HOME OCCUPATION:
(a) “HOME OCCUPATION” means a commercial use that a person conducts as an ACCESSORY USE relative to the person’s residence. (See Gratton v. Pellegrino, 115 N.H. 619, 348 A.2d 349 (1975); Narbonne v. Rye, 130 N.H. 70 534 A.2d 388 (1987); Perron v. Concord, 102 N.H. 32, 150 A.2d 403 (1959); Milford v. Bottazzi, 121 N.H. 636, 433 A.2d 1269 (1981).)
(b) For the purposes of subparagraph (a), a commercial use shall be deemed not occasioned by a person’s residence, and thus not a HOME OCCUPATION, if that person does not reside on the LOT where he conducts the commercial use. (Gratton v. Pellegrino, 115 N.H. 619, 348 A.2d 349 (1975).)
(c) For the purposes of subparagraph (a), a commercial use shall be deemed not subordinate to any residential use, and thus not a HOME OCCUPATION,
(1) if the commercial use employs more than four persons,
(2) if the commercial use in combination with other commercial uses on the same LOT employs more than four persons, or
(3) if the commercial use in combination with other commercial uses on the same LOT is not subordinate to the residential use.
(See Perron v. Concord, 102 N.H. 32, 150 A.2d 403 (1959) (“An aggregation of incidental uses of a business nature by virtue of which a residential property also becomes a business headquarters is not permitted by this ordinance because the business uses thereby lose their status as accessory.”).) In this subparagraph, “employ” means to use or engage the services of with or without pay. (See Sundberg v. Greenville Board of Adjustment, 144 N.H. 341, 740 A.2d 1068 (1999).)
(d) Except as provided in article 4, section 3, Nonconforming Uses, every permissible HOME OCCUPATION shall be conducted according to the following conditions and all other applicable conditions in the zoning ordinance:
(1) The HOME OCCUPATION shall be conducted in a SINGLE-FAMILY DWELLING or its ACCESSORY BUILDINGS.
(2) Every BUILDING in which the HOME OCCUPATION is conducted shall appear to be a residence or a customary ACCESSORY BUILDING of a residence if the BUILDING in which the HOME OCCUPATION is conducted is visible from any other property or any STREET. (See Milford v. Bottazzi, 121 N.H. 636, 433 A.2d 1269 (1981) (“Although the definitions of the term [“home occupation”] vary from one ordinance to another, they all have as a common purpose the allowance of only those businesses that do not adversely affect or undermine the residential character of the neighborhood.”).)
(3) The LOT of the HOME OCCUPATION shall have no more than one sign that is related to commercial use and that is visible from any other property or any STREET. Such a sign shall satisfy the following conditions:
(A) The area of the sign shall not exceed the boundary of a rectangle that is 3 feet wide and 4 feet long.
(B) The height of the sign shall not exceed 8 feet.
(C) The sign may be illuminated, but if the sign is illuminated, then it shall be illuminated by a shielded external light source and not by internal illumination.
(4) Except for
(A) stock-in-trade for or of AGRICULTURE,
(B) one sign as provided in condition (3), and
(C) BUILDINGS in which the HOME OCCUPATION is conducted,
no stock-in-trade shall be visible from any other property or any STREET.
(5) The HOME OCCUPATION shall not generate more than 12 vehicle trips to the LOT of the HOME OCCUPATION per day unless the HOME OCCUPATION is a RETAIL STORE selling AGRICULTURE products grown on the premises of the HOME OCCUPATION. In this condition, “premises” of a HOME OCCUPATION means a continuous tract of land where the HOME OCCUPATION is located and that the HOME OCCUPATION or its conductor controls.
(6) The HOME OCCUPATION shall not be detrimental to persons, STRUCTURES, or any of the surrounding properties by reason such as
(A) inadequate drainage, including inadequate drainage that results in hazardous runoff onto any STREET or that results in flooding another property;
(B) emission into the environment such as noise, vibration, dust, smoke, odor, fumes, emission of light, reflection of light, or emission of radioactivity;
(C) interference with the operation or delivery of electricity, heating gas, water, sewer services, cable or off-air television, or radio, including radio for cellular telephones;
(D) ground, water, or air contamination not included in the preceding reasons;
(E) fire hazard; or
(F) hours of operation.
(7) The HOME OCCUPATION shall not diminish the value of any of the surrounding properties.
(8) The HOME OCCUPATION, its parking needs, and its access ways shall be no undue nuisance or serious hazard to pedestrian or vehicular traffic. Parking needs shall be deemed a nuisance if parking needs force vehicles to park on a public street or a nearby property.
(9) The HOME OCCUPATION shall have adequate and appropriate facilities and utilities to insure the proper operation of the HOME OCCUPATION.
(10) The HOME OCCUPATION shall not be a KENNEL.

BM said that most of the proposed defining or permitting conditions are vague and will present enforcement problems.

CW, JP, and PH said that the proposed conditions are better than the current definition of “home occupation.”

JP said that the term “undue nuisance” should be just “nuisance” because ordinary nuisances are not more acceptable than undue nuisances.

JP noted that the proposed definition prohibits kennels as home occupations and that this prohibition is because the current definition of “kennel” excludes residences. JP said that case law also excludes automobile and truck repair from home occupations. (Milford v. Bottazzi, 121 N.H. 636, 433 A.2d 1269 (1981).) JP asked the board to think about whether to list automobile repair as being excluded from home occupations.

The board next discussed the proposed definition of “dwelling above business”:

DWELLING ABOVE BUSINESS:
(a) “DWELLING ABOVE BUSINESS” means a DWELLING on the second or higher STORY of a BUILDING in which the first STORY is occupied by or is designed or intended to be occupied by only one or more nonresidential commercial uses. In this definition of “DWELLING ABOVE BUSINESS,” “first STORY” means the STORY whose floor is closest to the ground level.
(b) Except as provided in article 4, section 3, Nonconforming Uses, every permissible DWELLING ABOVE BUSINESS shall satisfy the following conditions and all other applicable conditions in the zoning ordinance:
(1) The DWELLING ABOVE BUSINESS shall contain no more than one DWELLING UNIT if the DWELLING ABOVE BUSINESS is in the Urban District, the Suburban District, or the Rural District.
(2) The DWELLING ABOVE BUSINESS shall contain no more than two DWELLING UNITS if the DWELLING ABOVE BUSINESS is in the Commercial District or the Light Industrial/Commercial District.

The board was satisfied with this definition and the permitting conditions.

JP and CW said that this definition replacing “combined dwelling and business” would allow the zoning ordinance to exempt all permitted uses in the Commercial District from parking regulations.

AGENDA ITEM 6: Selectman’s Report – Eric Nilsson, Selectman Ex Officio – Gerard LeDuc, Alternate

GL said that the board of selectmen had not appointed a replacement for EN. (Editorial comment of recording secretary JP: EN has verbally resigned from the planning board. The board of selectmen has not yet accepted the resignation.) GL said that only three selectmen had attended the last selectmen’s meeting (on October 7, 2014) and that the three selectmen wanted the other two selectmen to be involved in the appointment decision.

AGENDA ITEM 7: Members’ Concerns

BM said that he was concerned that no selectmen had attended the all-boards meeting on September 27, 2014.

GL said that he did not agree with the all-boards process.

BM said that GL would not have been missed.

JP said that BM’s comment about GL not being missed was inappropriate.

AGENDA ITEM 8: Public Input

No public input. No members of the public were present.

AGENDA ITEM 9: Adjournment

BM moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of October 16, 2014: carried 5 – 0 – 0. (Voting “yes”: JP, PH, CW, BM, and GL. Voting “no”: none. Abstaining: none.) The planning board meeting of October 16, 2014, is adjourned at 8:47 P.M.

Minutes approved: November 6, 2014

______________________________ _____________________
Clayton Wood, Chairman Date

I transcribed these minutes (not verbatim) on October 18, 2014, from notes that I made during the planning board meeting on October 16, 2014, and from a copy that Chairman Clayton Wood made on October 17, 2014, of the town’s digital recording of the meeting.

____________________________________________
Jim Pritchard, planning board recorder and secretary