September 1, 2011 Minutes

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

DATE: Thursday, September 1, 2011

AGENDA ITEM 1: Call to Order

Chair Ted Mitchell called the meeting to order at 7:09 P.M.

AGENDA ITEM 2: Roll Call

Members present:

Jim Pritchard (JP, associate member), Pat Heffernan (PH, associate member), Clayton Wood (CW, vice-chair), Peter Dow (PD, alternate), Ray Conner (RC, alternate), and Ted Mitchell (TM, chair).

Members absent: Fred Hast (FH, selectmen’s ex officio) and Gerard Leduc (GL, selectmen’s ex officio alternate).

AGENDA ITEM ADDED: Public Input

No public input.

AGENDA ITEM 3: Approval of Minutes of August 17, 2011

CW moved to approve the minutes of August 17, 2011, as written in draft.

JP seconded the motion.

Discussion:

CW said that the Internet link given in Agenda Item 8, Members Concerns 2, is correct but does not work anymore:

http://www.usdoj.gov/crt/ada/adahom1.htm

JP said that he would add an editorial comment that the link is correct but does not work anymore.

CW asked if JP were supposed to be signing the approved minutes.

TM said that he had asked administrative secretary Dee Fritz. JP does not have to sign the approved minutes.

TM called for a vote on the minutes with the change that CW and JP requested.

Vote to approve the minutes of August 17, 2011,with the change that CW and JP requested: carried 3 – 0 – 1. (Voting “yes”: JP, TM, and CW. Voting “no”: none. Abstaining: PH.) The minutes of August 17, 2011, are approved with the change that CW and JP requested.

AGENDA ITEM ADDED: Return of escrow money to Barry Podmore, Larry Konopka, and Donald Sheldon.

TM said that the planning board owes money to Barry Podmore ($73), Larry Konopka ($100), and Donald Sheldon ($250). The amounts are the residues of what these people had put in escrow accounts. Planning board administrative secretary Dee Fritz asked Matt Monahan, of Central New Hampshire Regional Planning Commission, whether the board should release the money, and Matt said that the board should release it.

PH asked why was the board holding the money in the first place?

TM, CW, and JP explained that an applicant for subdivision or site plan approval has to pay for certain things, such as review by Central New Hampshire Regional Planning Commission (CNHRPC) and notice of public hearing. The total amount of these expenses is not exactly knowable until after the activities happen. For example, the amount of time that CNHRPC will use to review the application is unknown until CNHRPC does it.

CW moved to return $73 to Barry Podmore.

JP seconded the motion.

Discussion: None.

TM called for a vote to return $73 to Barry Podmore.

Vote to return $73 to Barry Podmore: carried 4 – 0 – 0. (Voting “yes”: JP, PH, TM, and CW. Voting “no”: none. Abstaining: none.) The board will return $73 to Barry Podmore.

CW moved to return $100 to Larry Konopka.

JP seconded the motion.

Discussion: None.

TM called for a vote to return $100 to Larry Konopka.

Vote to return $100 to Larry Konopka: carried 4 – 0 – 0. (Voting “yes”: JP, PH, TM, and CW. Voting “no”: none. Abstaining: none.) The board will return $100 to Larry Konopka.

CW moved to return $250 to Donald Sheldon.

JP seconded the motion.

Discussion: None.

TM called for a vote to return $250 to Donald Sheldon.

Vote to return $250 to Donald Sheldon: carried 4 – 0 – 0. (Voting “yes”: JP, PH, TM, and CW. Voting “no”: none. Abstaining: none.) The board will return $250 to Donald Sheldon.

AGENDA ITEM 4: WORK Session
a. Rules of Procedure
b. Outline Priority List of Zoning Ordinances Changes
c. LGC Lecture Series
d. Letter Art & Ross Morse
e. Letter to The Sun

AGENDA ITEM 4, a: Rules of Procedure

TM asked JP to discuss JP’s latest revisions to the draft rules of procedure.

JP said that he had added a table of contents, but all of the page breaks had somehow disappeared when administrative secretary Dee Fritz added the “DRAFT” watermark. Thus, the page numbers in the table of contents are wrong. JP will correct this problem in the final version.

(Editorial comment by planning board recorder and member Jim Pritchard: The addition of the “DRAFT” watermark also incremented the section numbers III and greater by one. For example, Section III, Officers, became Section IV, Officers. The minutes refer to the section numbers as printed.)

JP referred to draft Section IV, Officers, Rule 8, regarding the secretary. The board had agreed to the following language:

“The board shall appoint a secretary from the appointed or elected members as needed.”

JP said that the secretary appeared to him to be an officer because the secretary is a board member. JP said that the secretary appeared to him to be elected because the board would appoint the secretary by majority vote. Thus, RSA 673:9, I, says that the secretary’s term shall be one year, regardless of when the secretary is appointed “as needed.”

JP said that, if the board is going to elect a secretary, then the rules should say “elect,” not “appoint.” JP also found the “as needed” provision confusing. JP said that there appeared to be no legal reason why the secretary’s one-year term could not begin “as needed,” but the timing would be confusing because the board always elects its other officers, the chair and vice-chair, at the same time in April.

JP wondered whether the board needs a secretary at all. JP said that the secretary’s most important function is to countersign the chair’s signature on approved plats. The person taking notes and writing the minutes does not have to be a board member. JP suggested that the board should decide whether or not the board wants a countersignature.

JP said that RSA 674:37 just requires that approved plats be endorsed “in such manner as the planning board may designate.” The statute does not require a board member to endorse the plat and does not require a countersignature. Nonetheless, the board had agreed that any person signing an approved plat should be a board member. JP thought that using a board member is a good idea because using a board member will reduce the chance of signing by mistake. A countersignature reduces the chance that the chair will sign by mistake. If the board wants a countersignature, then the board should create the office of secretary and should elect the secretary in April along with the chair and vice-chair. If the board does not want a countersignature, then the board should eliminate the office of secretary altogether.

TM asked why the vice-chair could not countersign?

JP said that the problem is that the chair may be disqualified. Then the vice-chair signs as acting chair, and the board needs a secretary to countersign. If the chair is not disqualified but the secretary is disqualified, then, according to current rules, the vice-chair countersigns in place of the secretary. (See current rule II, 7.) In sum, the board needs a secretary to countersign the approved plat if and only if the board wants a second signature on the plat.

CW and JP discussed that the question of whether to have a secretary is essentially the same question as whether the board wants a second signature.

CW and TM thought that the board does not need a second signature.

PH asked who would sign if both the chair and vice-chair were disqualified?

JP said that PH was addressing a larger question of who would run the meeting if both the chair and vice-chair were disqualified.

TM and CW suggested that the remaining board members could elect an acting chair.

JP said that, if so, then there would have to be rules for that election.

The board decided to eliminate the countersignature requirement and to create the office of secretary for the sole purpose of having an acting chair when both the chair and vice-chair are disqualified.

JP said that, at its last meeting, the board had a big discussion about meetings to accept applications for subdivision or site plan approval as complete, and hearings on the merits of those applications. The board wanted to be clear to the public that those two proceedings are different. JP said that, if that discussion were important, then the rules should reflect the discussion; otherwise the board will forget it. Consequently, JP created new (draft) Section X, Conduct of Public Meetings to Accept Applications as Complete. Draft rule X, 4, codifies the board’s discussion at its last meeting: “no member of the public, including the applicant, has a right to be heard at a meeting to consider accepting an application as complete. (See RSA 676:4, I, and DHB v. Pembroke, 152 N.H. 314, 876 A.2d 206 (2005).)”

CW said that this new section was very important and would give the board more credibility with the audience in future proceedings

CW discussed how draft Section XI, Conduct of Public Hearings on the Merits of Subdivision or Site Plan Applications, follows logically from draft Section X.

CW referred to draft rule XI, 22, (“The board shall not grant conditional approval of an application, pending receipt of studies or reports that the board requires before deciding the application.”) The board received the police report on the Mud Run late, the same evening as the completeness meeting and merits hearing. CW wanted to make sure that the board understood draft rule XI, 22.

JP said that the Planning Board Handbook from the Office of Energy and Planning recommends the provision of draft rule XI, 22. If the board needs some information to decide an application, then it cannot grant conditional approval on condition of simply getting that information, because the information may not support approving the application.

CW said that the board needed to be clear that it would follow draft rule XI, 22, and that the department heads had to supply reports in a timely manner.

PH agreed that the rules should contain draft rule XI, 22.

JP clarified that draft rule XI, 22, is not like conditional approval on condition of receiving other permits. Draft rule XI, 22, is about studies or reports that the board needs to evaluate the merits of the application.

TM said that some conditions, such as a condition for exterior lighting, are material things in the development itself. Draft rule XI, 22, was referring to information that the board would need before the approval.

CW and PH also discussed that draft rule XI, 22, refers to information that the board would need before the approval.

JP repeated CW’s concern that department heads must supply information in a timely manner.

JP and TM said that they thought that the board had granted conditional approval on condition of receiving information from department heads.

JP said that, when reports are late, the board has little time to study them, and the public has no time to study them. Reports must be timely. The board must stress this fact to the building inspector.

CW agreed. Timely reports are the town’s responsibility.

TM suggested that the board may, at some point, write to the selectmen that timely reports are important.

CW referred to draft rule XIV, 5, A, (“Revised Subdivision, Site Plan Review Application materials must be submitted no later than seven (7) calendar days prior to the regularly scheduled meeting of the Board where the application is placed on the agenda.”) The board does not get anything seven days in advance.

PH said that the department heads have a heavy workload.

RC asked whether the board could assign a specific time by which the board would have these materials.

JP said that the board was getting into the amendment that Matt Monahan wrote and that the board adopted on February 18, 2010. JP did not want to get into that amendment now. Matt did a big amendment that intertwined the rules of procedure with the subdivision regulations. Getting into that amendment would be a big, complicated job. JP said that Matt’s amendment has problems, but now is not the time to correct them. JP did not touch Matt Monahan’s amendment.

CW asked about draft rule VI, 2, (“The board shall hold every public hearing at a regular meeting on either the first or third Thursday of a month at 7:00 PM”). CW asked if the board should limit itself to this schedule.

JP explained that the rule is currently in effect, except that the current rule is actually for just the first Thursday of a month. The rule applies just to hearings, not all meetings.

JP described draft rules VI, 10 and 11. These rules briefly describe the hearing and notice requirements for (1) a proposed master plan, (2) proposed subdivision regulations or amendment, (3) proposed site plan review regulations or amendment, (4) a proposed zoning ordinance or amendment, and (5) a proposal to repeal the zoning ordinance.

CW asked if these hearings would have to happen at a regular meeting?

JP said yes.

CW said that he was concerned that that restriction was too rigid.

TM thought that the board could comply with draft rule VI, 2, if the board managed its time properly.

JP agreed.

CW said that the board should give itself the extra flexibility.

JP said that the public may expect things to happen on either the first or third Thursday. But the board might have a problem complying with draft rule VI, 2, when the board is considering a zoning amendment.

CW suggested deleting draft rule VI, 2.

PD said that draft rule VI, 2, keeps the board from moving the hearings around strategically for the board’s own advantage.

JP agreed with PD. JP was concerned that holding hearings at irregular meetings might confuse the public. The purpose of a hearing is to hear, and interested parties have to know about the hearing in order to be heard. JP did not have a firm position one way or the other. JP wanted more time to think about draft rule VI, 2.

PH thought that interested parties should be able to follow the board’s activities through the public notices. Perhaps the board could change draft rule VI, 2, to allow exceptions as necessary?

JP asked what “as necessary” meant?

PH said that “as necessary” meant if the board needed another meeting. The board needs the flexibility.

CW agreed to adding exceptions as necessary. Last year, the board absolutely had to have a hearing on a Monday night.

PH agreed. PH suggested that hearings could be held on the first or third Thursday or as becomes necessary.

JP said that he might prefer to delete draft rule VI, 2, instead of adding something vague. JP did not know whether he wanted to keep, change, or delete draft rule VI, 2. JP asked for more time to consider the matter.

TM and CW agreed.

CW said that he would like to examine some of the parts that JP did not touch. The board could create some really clear procedure.

TM agreed but said that the board should defer that revision because the board does not want to get behind on the zoning amendments.

JP referred to draft Section XVI, Communications. This section requires that all communications from the planning board be reviewed by the town administrator. JP did not know why the town administrator should review all board communications.

The board agreed to delete town administrator review. The board is responsible for its own communications. Communications will be reviewed and approved by the planning board. The board can seek help from the town administrator without being required to do so.

CW questioned draft Section XV, Instructions to Applicants.

TM said that the board does give prospective applicants written instructions.

JP said that he had not scrutinized draft Section XV or sections following.

JP referred to draft Section XII, Conduct of Other Hearings. This section is meant to be a brief statement that other hearings are conducted in a manner similar to subdivision or site plan hearings except in relation to matters peculiar to subdivision or site plan hearings, such as confirming notice to abutters.

CW suggested that the board might want to expand draft Section XII to include zoning-amendment hearings specifically.

The board agreed that it would revisit Matt Monahan’s amendment and draft Section XII when the board could fit that review in with the zoning revisions.

AGENDA ITEM 4, b: Outline Priority List of Zoning Ordinances Changes

JP explained how the material that the board had composed would be organized as three zoning amendments:

First zoning amendment:
(1) Replacement Article 16, Parking Regulations
(2) Parking-related definitions to go in Article 3: PRINCIPAL FLOOR AREA and STREET
(3) Replacement Article 6, Special Exceptions
(4) Replacement definition of SPECIAL EXCEPTION to go in Article 3

Second zoning amendment:
(1) Replacement Article 5, Section 3, Powers of Zoning Board of Adjustment
(2) Replacement Article 7, Variances
(3) Replacement definition of VARIANCE to go in Article 3

Third zoning amendment:
(1) Definition of FRONTAGE to go in Article 3

JP said that the board must decide what the ballot questions should say and what the notice of public hearings should say. The board must decide how much detail to use in describing the amendments.

CW asked if the board should compose a description and work backwards?

JP said that the board should look at what RSA 675:3, VII, and RSA 675:7, II, require for the ballot question and for the public notice:

RSA 675:3, VII, (ballot question): “topical description of substance of amendment”

RSA 675:7, II, (notice of public hearing): “an adequate statement describing the proposal”

These statutes require, at minimum, that the board give enough information so that the public can determine from the descriptions which proposed changes go in which amendment. To avoid confusing voters, the board wants the notice of public hearings and the ballot questions to describe the amendments in exactly the same way. The board must decide how much information the board wants to use in describing the amendments. The description can be very brief and generic with very little actual description of substance, but that approach would tell the voter very little about what he is voting for. Alternative, the description could list the things that the board has done. For example, with Article 16, the board has

(1) renamed the article as “Parking Regulations,”
(2) clarified the requirements for one or more uses on a single lot,
(3) made the parking regulations uniform throughout the Commercial District,
(4) established standards for parking-requirements relief based on floor area, (5) changed parking-requirements relief to be by special exception instead of conditional use permit, and
(6) added design standards for parking spaces and parking lots.

This entire list could go in a notice of public hearing or in a ballot question. JP asked whether that list would be too much information to put in the notice or ballot question. The board must decide where, between the brief, generic description and the very descriptive list, is the optimum amount of information.

CW and TM said that they liked the list.

CW said that the board should compose the amendment description first and then use those same words repeatedly in educating the public. The list that JP just gave is not overwhelming.

TM agreed.

JP asked if the board were proposing to put that list on the ballot.

TM and CW said yes.

CW said that the board should compose the ballot questions before the board starts educating the public. The board should constantly use the same words.

TM and CW stressed that the description should make clear that the amendment is based on implementing what the voters approved last year.

CW asked about describing Article 7.

JP said that the Article 7 amendment is just to comply with the new state law on variances effective 2009.

JP asked how the board wanted to describe the “frontage” amendment.

PH said that the “frontage” definition should include class VI highways; otherwise, the zoning ordinance will prohibit all building on class VI highways.

JP clarified that the “frontage” definition relates to subdivision, not building. Article 4, Section 1, grandfathers existing lots, and the board had agreed that Article 4, Section 2, allows lot mergers on class VI highways.

PH objected to prohibiting parents from subdividing a lot for their child on a class VI highway.

PD said that parents could do such a subdivision with a variance.

PH disagreed. The Local-Government Center (LGC) told PH that the zoning board of adjustment (ZBA) could not grant a variance from the frontage requirement as written in order to enable a subdivision.

JP said that the town cannot favor one group of people over another in allowing subdivision. JP was skeptical that the LGC had, in fact, said that the ZBA could not grant a variance from the frontage requirement. The ZBA can grant a variance from the terms of the zoning ordinance if the variance meets the statutory conditions for a variance. RSA 674:33, I, (b).

PH said that the LGC had said that the ZBA could not grant a variance from the frontage requirement. PH did not see why frontage could not include class VI highway frontage. If a developer wants to subdivide, then the town will make him improve the road. But if just one person wants one extra lot, then that person will not have to improve the road.

JP repeated that the town cannot play favorites.

PH said that frontage should include class VI highway frontage.

TM, CW, and JP said that they would not support class VI highway frontage.

TM said that the board needs to educate the public. TM was skeptical of the LGC lawyer’s advice.

RC asked if the board should get a second opinion from Laura Spector.

JP said that the board had gotten Laura Spector’s opinion last year.

CW said that, in recent years, the town had had to take responsibility for two roads because the planning board had not done the right thing. The planning board cannot allow building on class VI highways anyway. Only the selectmen can do that.

PH was concerned that the frontage requirement would take away rights.

CW and JP said that, under RSA 674:41, I, (c), (1), there is no right to build on a class VI highway. The selectmen can allow building or not as they please.

PD said that PH had a good point about the public perception.

TM said that the public perception is why the board must educate the public.

CW pointed out that RSA 674:41, I, (c), has extensive requirements that the town is not enforcing. This lack of enforcement causes problems for subsequent property owners and for the town later. The town recently accepted a road where the approval conditions may not have been met.

PH said that CW was citing a road that “fell through the cracks.”

CW said that they all fall through the cracks.

JP read from Peter Loughlin, New Hampshire Practice: “Note that municipalities are not required to allow building on a Class VI highway. Even when building is allowed on Class VI highways, subdivision will generally be prohibited.” JP said that property owners on class VI highways did not buy the right to subdivide when they bought their properties; thus, their property cost them less in the first place, and they also pay less tax than owners of otherwise comparable properties on a class V highway.

TM, CW, and JP decided to keep the class V highway frontage requirement.

PD and RC left the meeting at 9:00 PM because of a prior commitment.

JP asked the board to return to the description of the “frontage” amendment.

TM said that the whole definition was too much to serve as a description. The description should present the character of the definition in brief.

JP agreed with TM. JP said that PH had made a good point: voters will be looking for class V highways or class VI highways. The rest of the definition is unnecessary detail. Perhaps the board should describe the amendment as a definition defining “frontage” as class V or better highway frontage—period.

The board agreed with JP’s suggestion.

TM asked JP to formalize wording for the ballot questions and notice of public hearings, based on the listing approach that the board discussed.

CW said that the board should discuss scheduling at the next meeting.

AGENDA ITEM 4, c: LGC Lecture Series

TM said that the Local-Government Center will have a series of lectures at 7:00 PM to 9:00 PM, $20 per lecture, in Keene, Meredith, Whitefield, Grantham, Newington, and Derry. TM will distribute the schedule to board members.

AGENDA ITEM 4, d: Letter Art & Ross Morse

Board members signed TM’s letter thanking Art and Ross Morse for letting the board use the Suncook Valley Sun to publicize the board’s activities.

AGENDA ITEM 4, e: Letter to The Sun

In brief, TM’s letter to the Suncook Valley Sun states the board’s activities on August 17, 2011: (1) the board worked on writing the rules of procedure to say that alternates shall participate in board meetings in the same manner as members of the public, (2) the board worked on other issues with the rules of procedure, (3) the board proposed a definition of “frontage” as a zoning amendment for the March town meeting, and (4) the board was concerned that Zoning Ordinance Article 4, Section 2, is vague regarding the merger of nonconforming lots.

JP asked TM to rewrite the last part of the letter. JP said that TM’s letter sounded as if the board had not resolved the lot-merger question. The board had concluded that Article 4, Section 2, does allow the merger of nonconforming lots if the result is a nonconforming lot but that the board should clarify the language at a later date.

TM agreed to revise his letter accordingly.

AGENDA ITEM 5: Selectman’s Report – Fred Hast, Selectman Ex Officio

The board had no selectman’s report because FH and GL are both absent.

AGENDA ITEM 8: Members Concerns

Members concern 1: TM’s concern with Paul Metcalf’s gravel pit.

TM said that the state will do another inspection within the next few weeks. The state will determine (1) whether the excavation is removing material properly, (2) whether the operation is reclaiming land properly after material removal is complete, and (3) whether silt is clogging the collection pond. The state will contact TM with the results, and TM will present those results to the selectmen. TM thought that the selectmen have enforcement authority.

PH asked how the planning board had become involved.

TM said that the town administrator had written a letter to the planning board and said that the planning board has jurisdiction. TM e-mailed Matt Monahan to ask what is the planning board’s jurisdiction. Matt Monahan wrote back, cited RSA 155-E, and recommended proceeding cautiously, working with the gravel-pit owner, and contacting the town attorney.

AGENDA ITEM 7: Public Input

No public input.

AGENDA ITEM 8: Adjournment

CW moved to adjourn the meeting.

JP seconded the motion.

Vote to adjourn the planning board meeting of September 1, 2011: carried 4 – 0 – 0. (Voting “yes”: JP, PH, TM, and CW. Voting “no”: none. Abstaining: none.) The planning board meeting of September 1, 2011, is adjourned at 9:23 PM.

Minutes approved: September 15, 2011

______________________________ _____________________
Ted Mitchell, Chairman Date