October 20, 2011 Minutes

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

DATE: Thursday, October 20, 2011

AGENDA ITEM 1: Call to Order

Chair Ted Mitchell called the meeting to order at 7:03 P.M.

AGENDA ITEM 2: Roll Call

Members present:

Jim Pritchard (JP, associate member), Pat Heffernan (PH, associate member), Gerard Leduc (GL, selectmen’s ex officio), Clayton Wood (CW, vice-chair), and Ted Mitchell (TM, chair).

Members absent: Fred Hast (FH, selectmen’s ex officio alternate), Peter Dow (PD, alternate), and Ray Conner (RC, alternate).

AGENDA ITEM 3: Public Input

No public input.

AGENDA ITEM 4: Approval of Minutes of October 6, 2011

CW moved to approve the minutes of October 6, 2011, as written in draft.

GL seconded the motion.

Discussion:

TM asked for the following change:
Agenda Item 8, (page 11): change “The 10-year improvement plan consisting of replacing Kelly Bridge.” to “The 10-year improvement plan consists of replacing Kelly Bridge on Shaw Road in 2014.”

TM called for a vote on the minutes with the change that he requested.

Vote to approve the minutes of October 6, 2011, with the change that TM requested: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, TM, and CW. Voting “no”: none. Abstaining: none.) The minutes of October 6, 2011, are approved with the change that TM requested.

AGENDA ITEM 5: New Business
a. Final Planning for November 3rd Public Hearing

TM asked JP to discuss the package that JP had assembled for members to use at the November 3, 2011, hearing.

JP said that TM and CW would be doing most of the board’s work at the hearing and that JP, as the person who writes the minutes, could help with their preparation by preparing a list of the planning board’s reasons for asking voters to vote for the board’s zoning amendments as the board had discussed those reasons at previous meetings.

JP included as the second page a document that begins by saying, “Why the Pittsfield Planning Board asks you to vote for its proposed zoning amendments.” The document presents reasons for each of the amendments. For Amendment No. 1, the document explains that the board rehearsed how it would implement parking regulations adopted last March, that the board found problems, and that the board rewrote the regulations to solve the problems. For Amendment No. 2, the document explains that the amendment is necessary to comply with RSA 674:33, Powers of Zoning Board of Adjustment. For Amendment No. 3, defining “frontage” as class V or better highway frontage, the document explains that requiring class V or better highway frontage for subdivision (not building on existing lots) is necessary to protect public safety and to protect taxpayers.

JP said that he wanted to change “Article 6” to “Article 6, Special Exceptions,” so that voters would know what Article 6 is. The draft document leaves out the name of Article 6.

JP said that he had left a letter on Friday for Dee Fritz, who was not in on Friday, and the letter explained how the zoning-amendment documents, including the statement of reasons, were to be distributed to the public. JP had distributed copies of the letter to the board. JP asked whether the board wanted any adjustments to the distribution instructions.

The board had no changes to the distribution instructions.

CW asked about the permit-expiration period for variances in Amendment No. 2. CW asked whether variances were the permit with no expiration period and whether Amendment No. 2 was correcting that problem.

JP said that the permit with no expiration is the special exception. Variance permits currently expire after two years of nonuse, and Amendment No. 2 does not change that expiration. Nonconforming uses are abandoned after one year of nonuse. The board’s plan was to bring all three of these matters—variances, special exceptions, and nonconforming uses—eventually to have the same expiration or abandonment time of two years of nonuse. The board is proposing a two-year expiration period for special exceptions in Amendment No. 1, but the topical description does not mention the expiration period because the focus of Amendment No. 1 is parking. The board did nothing with nonconforming uses this year.

CW agreed that the hearing discussion of Amendment No. 1 should focus on Article 16.

CW said that he did not have for the web site either (1) the notice of public hearing with the “PROPOSED” watermark, (2) the draft ballot questions, or (3) the statement of reasons for the amendments.

JP said that he will e-mail these documents to CW. Other than the “PROPOSED” watermark, there is no change between that notice of public hearing and the notice that JP sent to Dee Fritz and the rest of the board.

TM said that Police Chief Wharem makes himself available at Jitters each month on the first Thursday. He will postpone that event to November 10.

CW asked whether members of the public had taken any copies of the proposed amendments.

JP said that he had made 10 copies of each of the proposal documents last Friday. JP did not know whether anyone had taken any.

CW confirmed that the notice of public hearing was in the Suncook Valley Sun.

TM asked whether the board was required to read the full notice of public hearing.

JP looked up RSA 675:7 and RSA 675:3, II and III, and found no requirement to read the full notice of public hearing. JP said that he thought that a brief description, such as that the hearing is for Amendment No. 1, which is mainly about parking and secondarily about special exceptions, would suffice to identify the topic of the hearing.

JP summarized the reasons for the class V highway frontage requirement as follows: The class V highway frontage requirement is necessary to protect public safety because emergency vehicles, such as ambulances or fire trucks, cannot always reach dwellings on unmaintained roads. The class V highway frontage requirement is necessary to protect taxpayers because, if the town requires the road improvements up front, then the taxpayers will not have to pay for them later.

JP asked whether board members had questions about the issues that the board would discuss at the hearing.

CW suggested that the board discuss logistics.

TM suggested stating first in brief what Amendment No. 1 does, then explain a little of why, and then ask for questions. TM also suggested asking the audience whether they had visited the web site or picked up copies at the town hall to see how prepared the audience would be. TM said that he would also discuss the purposes of the parking regulations. TM said that the board should also try to follow the public’s lead.

CW proposed walking the public through the main points of the parking regulations.

TM said that he would explain that when the board first started figuring out how to implement the regulations for the Commercial District, the board realized that the area affected did not cover the whole Commercial District and covered only parts of other districts. The state law (RSA 674:20) is that regulations must be uniform throughout a district. The board adjusted the affected area to just the whole of the Commercial District.

JP said that the board did not need to read verbatim from the statement of reasons, but the board could use it as an outline. JP said that one thing that the public might wonder is why is the board doing a big revision of the parking regulations when it just did one last year. The answer to that question might be that the board’s activities were less transparent last year, and the board had worked hard this year to be more transparent, which forced the board to be more careful and thorough.

TM said that another problem was that the board did not think about how to implement the regulations.

CW said that another problem was that the board had tried to do too much last year. Two of six proposals passed, and the board did a mock implementation process, which uncovered many problems in both proposals.

JP said that the board needs to be prepared to confront the fact that the board made mistakes if the public wants to know why the board should have credibility this year.

TM said that the board failed to consider implementation.

CW agreed. In practicing implementation, the board found problems, so the board adjusted its approach to creating regulations. The board should stress that adjustment and how the board came to make it. It is much easier to explain that you have made a mistake once you have corrected the problem. The parking regulations took a long time, but the result was good.

TM repeated that the board should in part take its cue from audience questions.

CW said that some of the problems were there before last year’s proposal. Vagueness about regulations for multiple uses on one lot is an example.

JP said that he was not suggesting bringing up this question, but, if someone in the audience did ask the question, then the board should be prepared.

PH agreed with JP and said that the board should be prepared with specific examples of where the board went wrong last year and how the board corrected those errors this year.

CW said that the board could answer this question quickly. For example, the board created a conditional use permit process with no meaningful guidance to give credit for on-street parking. The board should volunteer some of these examples in order to make a loaded question unnecessary.

PH agreed that the board must be forthright. If the board risks its credibility, then everything will fail.

CW said that the board should stress that the board fixed more than just errors from last year. The board had originally planned to review all of the articles proposed for last year, and there was not enough time to do even that. Taking enough time results in a good product.

JP said that CW had made a good point. One of the reasons that the board made mistakes last year was because the regulations on which the board was working were bad in the first place. The problems with (1) multiple uses on a single lot and (2) giving credit for on-street parking spaces were both there before last year. Last year created some new problems and made some existing problems worse. Last year created the problems of non-uniform regulations and deleted design standards. Last year made the existing problem of on-street parking worse. This year’s work corrected all of these problems. The board certainly has examples of what the board had done wrong and how the board has corrected those errors.

CW discussed the previous vagueness of on-street-parking credit and the problem of having deleted design standards. The hardest thing to explain is why the parking relief should be by special exception instead of by conditional use permit. Each board member should have a copy of the essay by Christine Fillmore (“Look Before You Leap: Understanding Conditional Use Permits”). The board should provide the public with a copy of the page explaining the difference between the conditional use permit and the special exception. The special exception adds another step in the application process, but it also adds more public input and transparency. Assigning parking correctly is important because the downtown is small and because errors are difficult to correct after they have been made.

CW again stressed that the board had considered how the regulations would be implemented and that this approach had uncovered problems that the board would not have found otherwise. The board should use the implementation approach in the future. It takes longer, but the product is better. It also resulted in consensus on the board that has not happened before.

GL and TM said that some of the problems had existed for a long time. GL said that some of the problems had been copied from other towns.

JP said that copying problems from other towns is a big problem.

CW said that Article 16 is precisely tailored to Pittsfield. The board counted parking spaces and floor area and composed original regulations.

GL said that doing a good job on a smaller project was better. Past boards have been too ambitious.

CW said that the special exception is the only thing more complicated than last year’s regulations, but the special exception makes sense because it is less likely to result in an error.

GL said that the special exception helps businesses to know where they stand.

CW said that the public should have Christine Fillmore’s conditional-use-permit essay, and the public should have the math from which the board derived the on-street-parking credit.

JP said that all of the math and references to planning board minutes are in Article 16, Section 5.

CW and JP discussed that the board corrected the previous problem of multiple uses on one lot by adding text to explain the Table of Parking Requirements. The text defines the requirements for one use and then expands the requirement to define the requirements for multiple uses.

CW said that this correction is important because the Commercial District has many multiple-use lots.

CW said that the board may want to mention that the board analyzed the concept of principal floor area in the context of the tax cards to determine what existing area is really useful and thus should count in calculating the on-street-parking credit.

GL said that the approach that the board took in defining “principal floor area” was a marketing tool.

The board proceeded to discuss Amendment No. 2.

JP asked whether the board would have two hearings for each of the amendments.

CW said that he was concerned that the public would not pay attention to hearings this early.

TM said that the board should have minutes and a letter in the paper that thoroughly address the public’s questions and the board’s answers.

CW asked whether the board could have a hearing on its own proposals and on a citizen petition, if one should come in, on the same night.

JP said yes.

The board discussed that Dan Schroth might petition to repeal the zoning ordinance.

JP said that the earliest date of a second hearing on the board’s own proposals would be December 1, 2011.

GL asked about using a continuance.

JP said that continuing a hearing to a later date would be unlikely because the board must schedule a new hearing as soon as it decides to change its proposal substantively. A continuance pushes the date of the additional hearing closer to the deadline for any hearing. JP said that, even though the board appears to be starting early, the board does not have much time for many changes and the necessary hearings for such changes.

GL said that the board should finish its own proposal in December.

JP said that the board’s exhaustive list of options for second or third hearings is the first week in December and the first week in January.

JP said that he wanted to know about a second hearing because he had discovered an error in transcribing RSA 674:33, I, (b), to Article 7. The change necessary to correct this error is probably textual, which does not require a hearing, but if the board were going to have a second hearing anyway, then the question of whether the change is substantive or textual is moot.

CW said that the board should plan on doing two hearings. Public interest will increase as time passes, anyway.

JP asked for the hearing in December. Public interest will exist in December.

GL said that the second hearing is wise even though the error is only textual.

CW agreed.

The board agreed that it will have a second hearing on December 1, 2011. If no problems come up, then that second hearing will complete the amendment-proposal process for the board.

TM said that the board had also planned to adopt the rules of procedure on December 1.

CW asked about scheduling for the second hearing. Could all hearings be scheduled for 7:00?

JP said that he did not know. JP suggested deferring this scheduling question until after the first hearing, when the board would have a sense of public interest. Amendment No. 1 could draw little interest or a lot of interest. Amendment No. 2 should be very short because everything there is state law.

CW asked about how to present Amendment No. 2.

JP said that the board should explain that the state legislature revised the powers of the zoning board of adjustment in 1983 and again in 2009, and the board is correcting the zoning ordinance accordingly.

PH asked what the board would answer if someone asked why was the planning board correcting the powers of the zoning board of adjustment instead of the board of selectmen doing the correction.

GL, CW, JP, and TM explained that the planning board has the main responsibility in proposing zoning amendments. The board of selectmen can propose a zoning amendment, but every zoning amendment from the selectmen, just like every citizen petition, must go through the planning board. In the case of zoning proposals from the selectmen, the planning board can alter the proposal. (See RSA 675:3, I and IV.) It does not make sense for the selectmen to correct the powers of the zoning board of adjustment unless the planning board refuses to make the correction.

The board proceeded to discuss Amendment No. 3.

CW said that the main reason for Amendment No. 3 was to protect the town.

JP said that Amendment No. 3 is simple to summarize. It is necessary for safe development, and it is necessary to protect the taxpayer because if the road improvements happen up front, then the taxpayer does not pay for them later.

GL said that the town had had a difficult time getting a good definition of “frontage” because the town had not been able to find a good model from another town.

PH asked whether the state had a definition.

JP said that the state had a definition in the emergency temporary zoning ordinance (RSA 674:24 through RSA 674:29), which towns are not allowed to use for more than two years (RSA 675:4-a, II). The state does not do zoning. Zoning is a local responsibility.

TM said that the frontage regulation protects the town because, if the developer brings the roads up to class V, then the taxpayers do not have to pay for that improvement later.

GL pointed out that the subdivision regulations require dedicating land on narrow roads to widen the road to 25 feet from the center of the road. This regulation depends on a class V highway frontage requirement.

JP and CW agreed. CW said that you cannot correct other problems until you correct the frontage regulation. Cluster development is another problem that depends on defining the frontage requirement.

GL said that the frontage problem must be corrected now to support the subdivision regulations.

CW asked whether the board should discuss Tim Bates’ letter of December 22, 2003, in which he said that, because of the zoning ordinance’s failure to define frontage, “I see nothing in either the zoning ordinance or the subdivision regulations that would bar [an applicant on an unimproved private road] from proceeding with his application.”

The board thought that it should not bring up the Bates letter because to do so might revive bad feelings of the past.

JP said that a member of the public might say that the board could deny subdivision on a class VI road now, but, if the board did so, then it would be denying arbitrarily. The town has no policy regarding development on unmaintained roads. Either the board will grant or deny subdivision on unmaintained roads arbitrarily, or the board will grant such subdivision as a matter of course.

CW asked about surveying all of the neighboring towns?

JP said that he did not find such information convincing. The opinions of experts, such as Kerrie Diers, who advised the planning board in 2004, and Peter Loughlin, author of New Hampshire Practice, are more convincing.

CW suggesting having copies of Kerrie Diers’ letter and a page from New Hampshire Practice for the public on November 3.

JP said that, if the town allows subdivision on unmaintained roads as a matter of course, then two things will happen. First, either a medical disaster or a fire will happen, and no rescue will be possible. Second, when a substantial population develops on the unmaintained road, those people will want the town to maintain the road, and they will be able to petition to reclassify the road. (RSA 231:8.) Because the town allowed that population to develop, the town created the public need. JP did not know any case law exactly on point, but much case law defines what the decision to reclassify a road is supposed to be based on. JP thinks that, if the town has created the problem, then the town cannot say that the problem is an unfair burden. Case law from other states says that, if the town creates a problem, then the town is responsible.

GL said that there was no case law on subdivision, but there is case law for building on existing lots on class VI highways. The individual property owner is responsible.

JP agreed, but JP stressed that the zoning proposal was for subdivision.

GL said that he was not proposing to permit subdivision on class VI highways.

CW asked for clarification that if a person were seeking to build on a class VI highway, and if the class V highway frontage requirement passed, then the person would have to go to the zoning board.

JP interrupted and said no, not for just building. The zoning ordinance, on its face, allows building on class VI highways.

CW asked for confirmation that the class V highway regulation would affect only subdivision.

JP said yes.

CW asked for confirmation that the process for subdivision on class VI highways would be (1) zoning board of adjustment, (2) planning board, (3) board of selectmen, and (4) planning board.

JP said yes.

CW asked JP to repeat his summary of Amendment No. 3.

JP said that it is necessary for safe development and that it is necessary to protect the taxpayer because if the developer does the road improvements up front, then the taxpayer does not have to do them later.

JP asked about how many copies of the various documents should JP make? JP also asked for confirmation that the various documents would be stapled separately.

TM and CW suggested 20 copies. CW said that the board has a copying machine available if it needs more copies.

JP said that the board must vote on the final form of the amendments. JP asked for an understanding that he would make that motion on each amendment.

CW agreed.

JP suggested that the hearing format should follow a format similar to subdivision applications. TM will discuss what the board has done and why, or why and what, whichever he feels more comfortable. Then the board will take public input. Then the board will deliberate. The board may take more public input and then deliberate again. JP suggested deferring the final deliberations and the votes until after the board had taken input on all of the amendments. The board could take more public input at that time if necessary. JP will write a motion to continue the first two hearings in this manner.

TM and CW agreed to this format.

AGENDA ITEM 6: Gerard LeDuc, Selectman Ex Officio Report

GL said that the board of selectmen decided to readvertise the building inspector position because each of the candidates who have responded so far has to be certified, which will take too much time.

GL said that the board of selectmen will ask the acting building inspector (Kyle Parker) to work more than 7.5 hours per week. The selectmen would like the building inspector to travel around town looking for safety problems. The building inspector is supposed to work at least 20 hours. The selectmen would like the acting building inspector to work another 7 hours in addition to the 7.5 that he works now.

AGENDA ITEM 7: Building Inspector Report

GL covered building inspector matters in the selectmen’s report.

AGENDA ITEM 8: Members Concerns

Members concern 1: TM’s concern with his letter to the Suncook Valley Sun.

The letter says as follows: “On October 6th the Planning Board met. We reviewed the Ballot Articles and planned for the Public Hearing on these ordinance changes – November 3rd, 7:00 P.M. at the Town Hall.”

Members concern 2: TM’s concern that members e-mail Dee Fritz in a timely way.

TM said that Dee Fritz, the planning board’s administrative secretary, asks members to send their e-mails with enough time for her to process them properly. Dee recently received an e-mail too late to circulate it to board members for the meeting for which the e-mail was intended.

Members concern 3: TM’s concern with the Local-Government Center conference.

TM reminded members that the annual conference of the Local-Government Center will be on November 16 and 17, 2011, at the Radisson Hotel in Manchester. The fees will be as follows: $80 for two days with money submitted by November 6, $105 for two days with money submitted after November 6, $40 for one day with money submitted by November 6, and $65 for one day with money submitted after November 6. The town will pay for members who want to go. Any member wanting to go should make arrangements with the planning board secretary, Dee Fritz.

Members concern 4: TM’s concern with the nomination of the Suncook River for the Rivers Management and Protection Program (RSA 483).

TM said that the Suncook River Corridor Communities—Allenstown, Barnstead, Chichester, Epsom, Gilmanton, Pembroke, and Pittsfield—have nominated the Suncook River. If the nomination succeeds, then the planning board will have to compose a river-management plan that is included in the master plan.

Members concern 5: JP’s concern with rules to notify the New Hampshire Department of Transportation (NH DOT).

JP said that, when he wrote the draft rules of procedure, he had forgotten that the board had agreed that it would notify the NH DOT of applications for development on state highways. JP said that he thought that the NH DOT wants to be notified not only for development on state highways but also for development near state highways, because development near state highways can affect state highways. JP asked whether the board should ask TM to contact the NH DOT and request a letter stating in what circumstances the NH DOT wants the board to notify them.

The board agreed to ask TM to ask the NH DOT for such a letter.

CW said that the board had also forgotten about the NH DOT for the Family Dollar store.

AGENDA ITEM 9: Public Input

No public input.

AGENDA ITEM 10: Adjournment

CW moved to adjourn the meeting.

PH seconded the motion.

Vote to adjourn the planning board meeting of October 20, 2011: carried 5 – 0 – 0. (Voting “yes”: JP, PH, GL, TM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of October 20, 2011, is adjourned at 8:55 PM.

Minutes approved: December 1, 2011

______________________________ _____________________
Ted Mitchell, Chairman Date

I transcribed these minutes (not verbatim) on October 22, 2011, from notes that I made during the planning board meeting on October 22, 2011, and from copies of the two Town tapes that Chairman Ted Mitchell made on October 21, 2011.

____________________________________________
Jim Pritchard, planning board recorder and associate member

2 Town tapes.