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The special meeting of the New Boston Board of Selectmen was called to order at 7:00 p.m. by Chairman Dave Woodbury. Also present was Selectmen Gordon Carlstrom.
Present in the audience were Planning Board Chairman Brent Armstrong; Planning Coordinator Nic Strong; Eric Farris and Charles Cleary, Esq.
Dave Woodbury began by noting the purpose of the meeting which was to vote on a request from the Planning Board to extend the deadline for a decision on the CVI Development, Inc., application for Tax Map/Lot #8/62 & 8/62-1. He asked if there was any public comment which was not to do with the specific agenda item. There being none, he asked Brent Armstrong to recap the situation for the Selectmen.
Brent Armstrong noted that the CVI Development application was accepted as complete by the Planning Board back in March and the deadline for action was May 30, 2002. He noted that the Planning Board had a hearing on May 28th and the Planning Board was awaiting receipt of comment from Bill Drescher, Esq., with regard to the deeds, homeowners' association bylaws and declaration of covenants and restrictions that were important to the cluster subdivision. He noted that Bill Drescher, Esq., had not been able to respond by the May 28th meeting and he had, therefore, asked Mr. Farris if he agree to an extension to June 11, 2002. Brent Armstrong stated that Mr. Farris had not wanted to request an extension so the Planning Board had exercised their right under RSA 676:4 to ask the Board of Selectmen for
an extension to the deadline date.
Dave Woodbury asked if there was a copy of the Planning Board's vote. The Coordinator noted that it was not typed up yet. Brent Armstrong replied that the Planning Board had unanimously voted in favor of asking for an extension. Gordon Carlstrom clarified that he had not voted on that motion, knowing that the matter would be coming to the Selectmen for consideration.
Gordon Carlstrom noted that in his opinion a vote on the application at the Tuesday night meeting would have been premature without all the necessary information being available. He noted that a polling of the individual Planning Board members had determined that the Planning Board would not have been able to vote in favor of the application due to the missing information. Gordon Carlstrom noted that personally he would not have been able to vote in the application because the covenants and the deed work and the legal review were not complete and that was a significant piece of the application. He noted that the Planning Board did not want to put any subdivision in place, no matter where it was, without Counsel's review of legal documents. Gordon Carlstrom went on to say that several opportunities had been afforded to
Mr. Farris to voluntarily extend the time frame for Planning Board action but he chose not to.
Dave Woodbury noted that the memo from the Coordinator asked for a sixty day extension, but assumed that the Planning Board could act on the application quicker than that if the required information was received in time. Brent Armstrong stated that the Planning Board had a window of up to 90 days that could be requested but that 60 had been discussed at the Planning Board's meeting on the 28th. He noted that he had been thinking about the matter and thought that a 90 day extension would be more practical and the Planning Board could certainly act on the application sooner. Dave Woodbury asked if the Planning Board's vote specified a 60 day request. The Coordinator replied that the motion had not contained the number of days but
The consensus reached afterwards was that 60 days should be sufficient so that was what she had put in her memo. Gordon Carlstrom pointed out that another issue was the time that it would take to get the application back into the rotation to get it on the agenda. He stated that with a voluntary extension Mr. Farris would have been scheduled for June 11th. He stated that the Planning Board might need 60 days if it was going to take a couple of weeks to get back in rotation. Dave Woodbury stated that the Planning Board should try to get the application back in at the earliest possible date. Gordon Carlstrom pointed out that a voluntary extension would have kept the application in rotation, but he could not answer why Mr. Farris had not chosen to go that route. Dave Woodbury stated that under the
circumstances the Board of Selectmen should encourage the Planning Board to do the next best thing by having the application back on the agenda as soon as possible.
Dave Woodbury asked Eric Farris for his opinion on this issue. Charles Cleary, Esq., introduced himself, noting that he worked for the Wadleigh Law Firm from Manchester and that he had appeared before the New Boston Planning Board on only one matter in the past. He stated that there seemed to be some concern that the town thought Mr. Farris was unfair in not granting the voluntary extension to the deadline for his application. Charles Cleary, Esq., noted that Mr. Farris was not intending to disrupt the Planning Board or delay the plan, noting that he had been trying to get the subdivision approved since 2000. Charles Cleary, Esq., stated that Mr. Farris suggested that the Planning Board consider a conditional approval. He noted that Town Counsel's review of legal documents would not involve any Board judgement
afterwards and a conditional approval would, therefore, have been appropriate. Charles Cleary, Esq., stated that Town Counsel would dictate what should be contained in the documents and if the documents met the regulations they would be approved. He noted that after waiting for three years, Mr. Farris thought a conditional approval was more reasonable, and the Board's inaction had caused some frustration. He further noted that it was the town's attorney who had caused the delay by not having time to look at the documents and that a conditional approval would have been an efficient resolution to the situation.
Gordon Carlstrom stated that the Planning Board had told Mr. Farris that the reply from Town Counsel might not be done in time for the meeting on May 28, 2002. Charles Cleary, Esq., clarified that the Board had told Mr. Farris that Bill Drescher, Esq.'s reply might not be in hand by the next meeting. Gordon Carlstrom stated that was correct, that at the prior meeting the Planning Board had stated that there were some constraints involved and Bill Drescher, Esq., would make every effort to meet the deadline but the review might not be available for that meeting. Eric Farris stated that the constraint was his having to get revised documents back to the office within one week to be submitted to Town Counsel. Gordon Carlstrom stated that a constraint also was that the documents might not have been returned. Eric
Farris stated that he would like to see the minutes regarding that issue because that was not his recollection. The Coordinator noted that the minutes were on the conference room table.
Charles Cleary, Esq., stated that unless the Planning Board had a philosophy against conditional approvals, a situation such as this where Town Counsel needed time to look at documents, which the Planning Board controlled the content of to a great extent, a conditional approval would be the way to move forward. He stated that no discretion was required on the part of the Planning Board once Town Counsel's opinion was received.
Dave Woodbury stated that the Board of Selectmen could not do anything about issuing a conditional approval, they were meeting to decide whether or not to grant the requested deadline. Charles Cleary, Esq., stated that the Board of Selectmen could either grant an extension requested by the Planning Board, or they could grant a request from the applicant to direct the Planning Board to act on the application within 30 days. He stated that 60 days to have Bill Drescher, Esq., to look at the documents that he knows what the content should be seemed unreasonable. Dave Woodbury stated that he had never run into this situation before but was now hearing that the Board of Selectmen could grant a 60 or 90 day extension, or could request that the Planning Board act on the application in 30 days. Charles Cleary, Esq., explained
that the first was done on behalf of the Planning Board, 676:4,I,(f), but the second method was based on a request from the applicant 676:4,I,(c)(1).
Gordon Carlstrom read from the Planning Board minutes of 4/23/02 with regard to the conversation to do with the time frame for receiving Town Counsel's response: "Eric Farris confirmed that the legal documentation was the only outstanding item left for his application. The Chairman stated that was a fair statement at this point. He stated that if the revised documents were received back in the office by the end of the week, the Board might have the answers from Town Counsel by May 28, 2002. He noted that if Town Counsel's comments were not received by that meeting, the Board would have to adjourn again."
Charles Cleary, Esq., stated that it should probably be addressed at future Planning Board meetings why a conditional approval was such an unlikely event. Dave Woodbury stated that it was between the applicant and the Planning Board as to how their business was conducted. He asked if the applicant had made a request for the Board of Selectmen to direct the Planning Board to act within 30 days. He further wondered if it was likely that there would be relief in 30 days. Dave Woodbury stated that he could understand the Planning Board wanting some wiggle room in case the answer was not received in time, but wondered what assurance could be given to Mr. Farris that there would be a vote on his application within 30 days.
Brent Armstrong stated that notice for the hearing would have to be sent by certified mail in time for a regular Planning Board meeting. He noted that he was concerned for Mr. Farris who had stated at the Planning Board's May 28th meeting that he would go along with anything Town Counsel said. Brent Armstrong stated that Bill Drescher, Esq., might come back with something that Mr. Farris did not agree with. Dave Woodbury stated that this subdivision was the first of its kind in town which made things a little more tentative.
Charles Cleary, Esq., stated that Bill Drescher, Esq., would take the site plan regulations (sic) and if something was required to be in the legal documents he would make sure it was in them. Charles Cleary, Esq., stated that Bill Drescher, Esq., had no power to say that he did not like something in the documents but would have to conform to the regulations. He stated that he did not think it would take more than 30 days for the review to be done. He went on to say that this kind of situation caused friction between applicants and Planning Boards because the applicant pays for Town Counsel review and expects a reasonable turnaround. He reiterated that the Planning Board could treat non-discretionary issues under the conditional approval, which would not allow the applicant to build until the conditions were met and
which would not require an applicant to come back for another hearing.
Dave Woodbury stated that this was not the correct forum to have discussions over conditional approvals. He suggested that Atty. Cleary contact Bill Drescher, Esq., directly to try and move the review along at a faster pace. Eric Farris stated that request had been made of the
Planning Board who said it would be fine, but it never happened. He stated that Bill Drescher, Esq., apparently never looked at the documents. He stated that he had revised the documents based on the Planning Board's direction before they were sent to Town Counsel. Dave Woodbury suggested that everyone look forward, not backward. Gordon Carlstrom stated that this would be the time for Atty. Cleary to talk to Bill Drescher, Esq., because he was getting into the review. Charles Cleary, Esq., stated that it was understandable that the Planning Board had taken the first whack at reviewing the documents before sending them to Counsel. Gordon Carlstrom expanded on that, noting that it would not be a good idea to send something to Bill Drescher, Esq., for review that did not meet any of the Planning Board's
requirements because it would waste everyone's time.
Charles Cleary, Esq., stated that the Board of Selectmen had to decide what was a reasonable time frame for action on this issue. He asked if Bill Drescher, Esq., could not get to the review, was it reasonable for the applicant to be kicked off for a meeting or two. Gordon Carlstrom stated that there were some known factors such as Town Counsel's vacation. He noted that was why the 4/23/02 minutes indicate that the Board said if the review was not done in time for the 5/28/02 meeting, there would need to be another meeting. Charles Cleary, Esq., noted that the applicant had been waiting for approval for quite a while and was becoming frustrated. Gordon Carlstrom reiterated that if he had to choose between a conditional approval and voting down the application, he thought he would have voted it down because he
did not have enough information. He noted that he would not feel comfortable with a 30 day time frame. He was not sure if 30 days would be enough. Charles Cleary, Esq., stated that the town's regulations were really very good about setting forth what should be in the documents. He suggested that the town have Bill Drescher, Esq., prepare templates for these documents for the next applicant that might need them. He thought that 30 days was ample time to give notice and get the application back on the agenda.
Dave Woodbury stated that it seemed appropriate for Charles Cleary, Esq., to communicate directly with Bill Drescher, Esq. He noted that he did not know what the Planning Board's agenda looked like for upcoming meetings. Charles Cleary, Esq., stated that he did not expect there to be a lot of public comment at the next hearing because the only issue was the content of the legal documents. Dave Woodbury thought that there might be more comment from the abutters. Charles Cleary, Esq., stated that the Planning Board was allowed to tell the abutters if certain matters had already been addressed and no further comment would be taken.
Brent Armstrong stated that the review of the legal documents was what was left to be discussed and that was an integral part of the application. He noted that this cluster application was the first in New Boston and everyone wanted to make sure that it was done correctly. He stated that the Planning Board was ready to move ahead as quickly as possible given the circumstances. Brent Armstrong went on to say that had Mr. Farris agreed to the extension, he would be scheduled at the June 11, 2002 meeting. Charles Cleary, Esq., stated that the problem was that another extension might have had to be requested at that meeting if no response was received from Town Counsel. Brent Armstrong stated that his understanding was that the Planning Board would receive Bill Drescher, Esq.'s reply in the next few days. He
noted that if the requested extension was granted there were procedural requirements for notices to abutters for the next hearing because the last hearing was not adjourned.
Charles Cleary, Esq., stated that he disagreed with Gordon Carlstrom about being reluctant to grant a conditional approval. He also noted that he did not realize that this was the town's first cluster subdivision. He went on to say that Mr. Farris had indicated that he would accept anything that Town Counsel responded with that was legal.
Dave Woodbury stated that for this meeting tonight he did not see that a formal request had been made by the applicant asking the Board of Selectmen to direct the Planning Board to act on the application within 30 days. He did not think that a verbal request was sufficient and pointed out that the notice of this meeting did not include mention of such a request. He stated, however, that the Board of Selectmen did have a request from the Planning Board for an extension of 60 days. Dave Woodbury stated that although there had been mention of a 90 day extension, that request had not been made prior to the meeting and he did not, therefore, feel that 90 days was appropriate.
Gordon Carlstrom MOVED that the New Boston Board of Selectmen this date, hereby grant a 60 day extension beginning May 30, 2002, for the Planning Board to act on the CVI Development application pursuant to RSA 676:4,I,(f), as requested in the memo from the Planning Department, dated May 29, 2002. Dave Woodbury seconded the motion.
DISCUSSION:
Charles Cleary, Esq., asked, given the overall situation and the fact that it was the town's legal counsel that had the issue with it, if the Board of Selectmen would consider adding in that the Planning Board should attempt to hear the application within 30 days. Dave Woodbury stated that was a subsidiary issue and called for a vote on the motion. The motion PASSED unanimously.
Gordon Carlstrom started to make a motion but changed it to a Board of Selectmen suggestion that the Planning Board should attend to this matter as expeditiously as possible, hopefully within 30 days. Dave Woodbury concurred with that suggestion, noting that the Planning Board should handle the matter as expeditiously as it possibly can be under the circumstances. Gordon Carlstrom also thought the idea of using templates for the documents was a good one, noting that this cluster subdivision was the first through the gate, and there was, therefore, nothing of that kind available to Mr. Farris.
Dave Woodbury asked if there was any other business. There being none, Gordon Carlstrom MOVED at 7:35 p.m. +/- to adjourn. Dave Woodbury seconded the motion and it PASSED unanimously.
Respectfully submitted,
Nicola Strong
Planning Coordinator
Minutes approved:
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