NOTTINGHAM PLANNING BOARD
August 6, 2008
PUBLIC SESSION
APPROVED & AMMENDED
Type of Meeting: Scheduled Workshop
Method of Notification: Posted at the Nottingham Municipal Building & Nottingham Post Office
Meeting Location: Nottingham Municipal Building
Members Present: Mr. Dave Smith; Chair, Mr. Peter Gylfphe; Vice Chair, Ms. Sue Mooney, Bob Davidson, Mr. Scott Canney, Mr. Bill Netishen; Selectmen’s Representative, Ms. Cheryl Smith; Alternate Member (not seated)
Members Absent: Mr. Skip Seaverns, Ms. Traci Chauvey; Alternate Member,
Others Present: Mrs. Lisa Sears; Land Use Clerk,; Attorney Chris Boldt, Paul & Leslie Longueil, Peter Landry, Charlene Andersen, Roscoe Blaisdell, Rick Wolf, Mary Bonser, Attorney John Teague
Chair Smith called the meeting to order at approximately 7:00pm.
Minutes
July 23, 2008
Line 43 change Agend to Agent
Line 46 Change little to few
Line 48 insert are after lots, add a d on complete
Line 51 change the to a before cost
Line 55 put a period and a comma after etc
Line 122 switch ZBA and any
Line 136 remove that most ZBA cases are not a big deal and suggested that
Line 192 change right to write, delete the s on gets
MOTION by Mr. Gylfphe to accept the minutes of July 23, 2008 as amended
SECOND by Ms. Mooney
VOTE 3-Aye. 0- Opposed 3- Abstained MOTION PASSED
Old/New Business/ Correspondence
The Board reviewed a new schedule of workshops; noting that there are only 9 workshop meetings left in the year to accomplish all the items (Conservation Overlay District, proposed Zoning Changes for 2009, Impact Fees?) they had decided to tackle this year.
The Board reviewed & approved the draft letter to the Zoning Board of Adjustments in regards to a possible joint meeting. Mrs. Sears will send it out this week.
Public Hearing
Chair Smith opened the continued public hearing for:
Case #P07-15-SUB Subdivision Application (acceptance, compliance, and final approval of a 3-lot subdivision) – Paul & Leslie Longueil Revocable Trust of 1996, Paul & Leslie Longueil, Trustees – Cooper Hill Road – Map 16 Lot 15A
Attorney Boldt addressed the Board in regards to his letter dated July 7, 2008 letter and following email to Mrs. Sears in regards to their request for recusals from a total of 5 members of the Board. He stated that he believes that his clients’ rights had been violated as stated in his letter; he believes it was an error on the Board’s part to have discussed this subdivision after the formal hearing was closed and he and his client departed, and it was not on the agenda (RSA 91:A) and that there was no public meeting at which this Board reviewed the letter they were sending to the Zoning Board of Adjustment (ZBA) about this subdivision, approval of the letter was done via email and phone calls.
Attorney Boldt also noted that he believes Mr. Netishen should not have participated in the discussion with this Board and as a member of the Board of Selectmen. He went on to state that content of the letter sent to the BOS from this Board requesting a rehearing of this subdivision’s ZBA case had no merit. He briefly explained the ZBA’s role and that he believes that his clients constitutional rights have been violated under the NH Constitution Part 1, Article 356.
He stated that members who have already taken an adverse action (sending the letter to the BOS requesting a rehearing of this subdivisions’ case at the ZBA) can not fulfill there duty to act as an (impartial) juror in this case. He requested that the 4 members who had voted to send the letter and Mr. Netishen recuse themselves from this case. He stated that in doing so that would remove any argument (grounds for an appeal) he may later have to present to the court, if the outcome of this case does not come down in his clients favor. The argument would not be on the merits of the case but on the procedures. He noted if they won the appeal would include attorney’s fees as well. He noted that if members go ahead and step down then that is in no way admitting any kind of error, it is just taking away any negative
appearance, so the case could be heard on its merits alone.
There was much discussion on the procedure of how and when to have members recuse themselves and the related RSAs and case histories of similar situations. It was noted that there was no one available tonight that could be appointed tonight and so this case could not be heard tonight.
The town’s attorney, John Teague explained how he believes this situation should be handled; he noted that the Board could find replacements for this case. He cited a case, stating that one person recuses themselves then the remaining members replace that person with an alternate and keep doing that until all members who want to step down for the case has a replacement. Discussion was on if the new alternates would just be seated for this case and therefore did not need to be sworn in by the Town Clerk.
There was much discussion on how Attorney Boldt arrived at which members he was asking to step down. He was asking for Chair Dave Smith, Skip Seaverns, Peter Gylfphe, Sue Mooney and Mr. Netishen.
Mr. Netishen took exception to the July 7th letter; stating that it was inaccurate because it was based on draft minutes. Atty. Boldt noted that it was later corrected by Mrs. Sears via email on July 8th that Mr. Netishen had not voted to send the letter but had abstained from the vote. Atty Boldt went on to explain to Mr. Netishen that even though he had abstained from the vote, it appeared that he participated in the discussion at the planning board level and had not recused himself at the BOS level and had voted as a member of the BOS and he then voted to ask the ZBA to rehear the case. Atty. Boldt stated that is the reason why he has also requested that Mr. Netishen step down with the other 4 members of the planning board. Mr. Netishen noted that he had received the rough draft of the planning
board letter to the BOS but had not replied or commented on it and had no input on it as well. Mr. Netishen noted for the record that he did not participate in the discussion to send the letter to the BOS; he only questioned the procedure during that discussion. Mr. Netishen also told Atty. Boldt he wished he had submitted a revised document upon learning that the fourth vote was not him, and included the reasoning for the request for his recusal. Mr. Netishen told Atty. Boldt that his July 7th letter is inaccurate and it was important that what was said and how it occurred and the timing of what was said. Mr. Davidson agreed with Mr. Netishen’s position. Discussion was on how recusal was on an individual basis and up to each member, and that it was the Board’s job to find new alternate members.
Mr. Gylfphe stated that he did not predetermine a case; and explained his position was that he had wanted to have the ZBA clarify the decision (in the letter). He said he voted for the request for the appeal so he could understand why the ZBA did what they did so he could give them (the Longueils) a fair judgment now. He stated that he just wanted facts from the ZBA.
Discussion was on what an individual member can do to get facts in a case; like drive by a property or read the ZBA file but what can’t be done by a board is a request for a rehearing. Atty. Boldt explained that asking for a rehearing was in effect asking for an appeal of the case. He gave an example that you can’t tell the ZBA that “we didn’t like your finding we want you to hear this again”, in effect overturning their decision.
Mr. Gylfphe explained that when he was voting to send the letter, he believed the letter was not asking for a rehearing but just asking for a clarification on their decision. Atty. Boldt read the letter that was sent that used the word appeal in it. Mr. Gylfphe noted that his computer has been broken had not received any draft letter. Mrs. Sears explained what letters came and when and how for Mr. Gylfphe.
It was noted that all the abutters had been resent notices including the public ad for this case, for tonight’s meeting. It was also noted that the Board had discussed at a previous meeting the need for this case to re-notify the public as it had been continued many times and had gone before the ZBA, which resulted in minor changes made to the plans.
Ms. Mooney stated that she believes that Mr. Netishen was very careful not to discuss the case but only discussed procedure and she stated that she saw no evidence of bias on his part.
Atty. Teague noted that he objected that the first action by the Board; when they discussed sending the letter after they left was an indication of bias. He noted it may have been a mistake but he didn’t believe that it was bias. He believes a Court would find that an error on the Boards part but was not sure what that means or how that would play out.
He noted it was the individuals’ appearances of bias, and that he didn’t see any real evidence of bias. He agreed that it was unusual for a Planning Board to ask a Board of Selectmen to ask the ZBA to rehear a case; he noted there were no similar cases that said it was or was not allowed. He noted that he didn’t agree with Atty. Boldt’s limited view of what a Planning Board is allowed to do. He noted each individual member must decide for themselves for “the good of the order” and that proceedings before the Nottingham Planning Board are totally above board and everyone feels they got a fair hearing. He explained that members do not have to decide if they were biased or not or if they had acted improperly in order to respond in favor of the request for recusal. He noted his concern was
for when this kind of shadow is over a proceeding it can cause everyone to feel less free to exercise their judgments, whatever that judgment may be. He stated that he didn’t believe that the Nottingham Planning Board members had done anything wrong. He believes they made a valid attempt to get clarification. He did note that he recommended that the Board consider the question of the appearance of bias on an individual basis, but knows that it may have an impact down the road.
Atty. Boldt stated that the Courts have consistently decided in favor of RSA 91:A (right to know law) cases. He also noted that individuals can recuse themselves knowing that is in no way an admission of any wrong doing by the individual.
Discussion was on when the new, revised plans were submitted as requested at an earlier meeting. Mrs. Sears noted that the new plans came in on time. Chair Smith noted that this Board had previously determined that the changes were not significant enough to warrant a new application.
Chair Smith noted that some alternates would need to be appointed before the case can be heard.
Mr. Netishen noted he wanted to consider Atty. Boldt’s request some more. Everyone agreed to continue this hearing on August 20, 2008 with about 5 possible alternates present in case they are needed that night. Atty. Teague noted all members do not to be replaced that only a quorum is needed to proceed. The new group of alternates and existing members would determine who would chair the meeting, and it would be ideal that the new members have some Planning Board type experience or understanding. It was noted the alternates would be appointed for just this case, and be qualified to serve as a juror.
Atty. Boldt suggested that arrangements be made so that the Town Clerk, or a Selectmen or the Town Moderator attend to swear in the alternates. That way even if all parties here agree there is no need for them to be sworn in, perhaps a third party (abutters) may not agree.
Mr. Gylfphe requested that Atty. Teague be present at all the rest of proceedings for this case. Chair Smith was concerned of the costs of that. The Board later agreed to send a memo to the BOS asking for Mr. Gylfphe’s request.
MOTION by Ms. Mooney to continue the public hearing for: Case #P07-15-SUB Subdivision Application (acceptance, compliance, and final approval of a 3-lot subdivision) – Paul & Leslie Longueil Revocable Trust of 1996, Paul & Leslie Longueil, Trustees – Cooper Hill Road – Map 16 Lot 15A, until August 20, 2008
SECOND by Mr. Davidson
VOTE 6-Aye. 0- Opposed 0- Abstained MOTION PASSED
Ms. Mooney asked Atty. Teague: if only one member asked to step down stays, is it as bad as if all of the 5 requested members. He explained it was on an individual case basis, but a case can be tainted by one or more than one member. He suggested it was best not to have a question come up and that was what he meant by “the good of the order”. He gave references of cases for the Board to research. Mrs. Sears will contact Atty. Teague is needed on August 20th.
After a discussion of possible members to ask to be alternates, it was determined that Chair Smith and Mr. Netishen will call the prospective alternate members. They will communicate to each other and report back to the Board if time allows or to Mrs. Sears to follow up with a formal letter directly to those prospective alternates who agree to come. The Board agreed.
Review of the proposed Conservation Overlay District (COD)
The Board continued to review the minimum standards for this COD zoning ordinance. The discussion continued on lot sizes/envelopes, including individual residential lots or on common lots with more than one dwelling unit (condos). Mr. Landry read an example of wording for multi units, from the Town of Durham’s zoning ordinances’ (pg 112). They noted space between houses and setbacks from the road would need consideration if multi units would be allowed.
They also briefly discussed that each conservation district should have a certain percentage set aside for conservation, and NH Department of Environmental Services (DES) soil standards was also briefly touched on.
It was noted that the goal of the COD was to preserve open space. Chair Smith again stated that he thinks that there should be professional help to make recommendation for the minimum dimensions section.
The Board decided to move on to the COD subdivision regulations at the next workshop. It was noted that these COD zoning ordinances may need minor adjustments that can be done while working on the matching subdivision regulations. It was also decided that when both documents are completed they will be sent to the town attorney for review together.
MOTION by Mr. Davidson to adjourn the meeting at approximately 9:15pm.
SECOND by Ms. Mooney
VOTE 6-Aye. 0- Opposed 0- Abstained MOTION PASSED
The next schedule workshop meeting is on August 13, 2008.
Respectfully Submitted,
Lisa L. Sears
Land Use Clerk
These minutes are subject to approval at a regularly scheduled Planning Board meeting at which time the above minutes are corrected or accepted.
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