City of Portsmouth, New Hampshire Planning Board, 30 Mar 2022

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From YouTube: 3.30.2022 Special Planning Board Meeting

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3.30.2022 Special Planning Board Meeting

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Good evening, this is a special meeting of the porsche planning board march 30th. um Most of.

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The members are here, mr franco's, not here, jane bedell will not be here. Peter harris is.

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Running a few minutes late, so we have the first half hour of tonight, discussion with the board.

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As everybody I'm sure saw so if anybody has any issues, they'd like to talk about.

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We've talked about possibly having some additional workshop meetings and if we do.

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Have workshop meetings we might have them down on the floor with the same level as everybody else.

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So if anybody has anything they'd like to bring up for conversation.

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um Right so I went to the governance committee meeting on monday and the chair of that committee.

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Was proposing work sessions for five city councillors, which.

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Seemed a little odd, but I think I'd like to see us do things like that, so we can.

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At least explain ask questions of each other for clarity before we get to a meeting and.

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That way, it doesn't drag the meetings out as long as sometimes they get dragged out.

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You know the reason beverly I talked about this a little bit. We thought we'd have a few minutes.

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Tonight is just because we've had these, we started conversations really late at night, which is a.

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Really difficult time to have those conversations and if people don't have things they'd like to.

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Talk about that's fine, but I thought it would be better at six o'clock than 11 30 at night. So.

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um These are just kind of a laundry list I came up with, I'm not sure.

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They're for work sessions, or these are like goals. I have.

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For the planning board to like, I said, discuss in a non-planning board type setting and the.

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First, one is looking at ways we can improve the cip, make it more clear and comprehensive.

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I'd like to.

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See if portsmouth can look around to some other communities for impact fees.

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I know dover has a long established impact fee program.

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I'm also interested in.

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Revising our button notification procedures because I think they're not advantageous to.

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Butters- and I know other towns give a lot more time and material in their butter notifications.

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I'm also curious about the north end vision plan and how it was developed in 2000.

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I think 14 or 15, and how that relates to what's being built out there now.

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That's uh that kind of covers my quick list.

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uh Just quick question: the butter notification: do you think, there's a problem with the statutory.

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Notification or just well, I I know that you can increase the radius of a butters different towns.

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I've seen 200 feet, I've seen a thousand feet. I think portsmouth could look into that aspect of it.

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I know timing, I know some towns give much longer advanced notice times to.

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Butters and what material they include in their notifications, things like that.

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Being newer, I think for myself personally, it would be advantageous either to understand better the.

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Scope of a design, review proposal or break out the design review proposals into smaller portions.

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The most recent example being mark mcnabb's project on congress street.

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And trying to understand the different components of that development.

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Oftentimes, there's a lot to digest in that, whether it's circulation and traffic or actual design.

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Or just end use of a certain property, definitely not for some of the smaller ones, but some of those.

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More pivotal, downtown deer street north end type vision plans. I feel as though, if we had a more.

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Focused design review the developer could walk away with better feedback.

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On individual pieces and then come back to us again for one more comprehensive review.

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And then I guess even prior to that. If there was an additional, either sidewalk or ability to.

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Understand their intent with the development and maybe how they see their.

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Ability panning out so whether it's based on zoning or just development scheme, saying we under.

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You know he have the developer, explain to us what is going on and what they see happening and maybe.

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We can provide more informal feedback and then they propose to us additional changes and whatnot.

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Again, it's just the idea is to break it down into smaller sections, then they're easily digestible.

A

I know from your background, you might have seen more of an interactive discussion on design.

C

Yeah and I think from that experience definitely we often.

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Would engage in more conversational type dialogue and I understand how there are formalities to this.

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Board, uh but even before it gets to the lectern, there could be an opportunity to incorporate that.

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Into our planning, board's ability uh and inviting other commissions or or boards to.

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Those types of meetings- and I'm sure beth, has more experience on that. No, I just wanted to add that.

D

We've actually done that in the past, but we haven't done it as a board to create that it's.

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Actually been the developer who's asked for work sessions like we did, for. um I believe this was 10.

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Yards we did like almost a year year and a half of work sessions before we ever saw a site plan.

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So that we got to and we kept telling them no, we want this and they'd come back and we'd keep.

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Going back and forth so there is the possibility of doing that. I just don't know I'm not aware or.

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Remember any situation where we've requested that it's usually been the development. That's come to.

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The city and said you know we'd really like to talk about these things in some work sessions.

D

Well before we ever, you know, get into actual formal review and if I could chime in on that.

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Oftentimes, a developer will come to those types of meetings with an idea in their head, based on.

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Either prior experience an economic equation, so a math equation that says they need to.

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Get x amount of units or square footage, and so, with that knowledge in mind for us it would be.

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Super helpful to then understand that metric or understand that perspective perspective um and.

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It may be something that we actually propose to them that way, the prevailing conversation.

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And um dynamic is not something of this is what we want to do and let's go go, go and then we just.

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Interject our feedback, it's more of a blend and if that's something that the planning board can.

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Engage with because often times and again, I'm newer here, but we see a lot of the same developers.

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Over and over again, which is awesome- and I think keeping it local is the primary uh principle here.

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But we are very familiar with these types of developers a lot of the time, so it could be more.

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Attainable than you know a larger city or anywhere else, so that could be an opportunity. I think.

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To have it, even if we didn't have the entire board, but maybe a quorum, to go and attend or walk the.

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Site sit down with their architects, stick down with their team to better understand the end goal.

A

Makes sense to me, I mean I don't know how I know people are busy.

B

More hands-on approach by the planning board than just I mean if they create what he just said. If.

B

They if they say they want 70 units and they go great guns, setting up a plan with 70 units. But if.

B

They would have talked to us at the beginning and said we don't see it, it could have saved the month.

B

In their process and our process, the technical advisory committee certainly has an.

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Initial review but they're more focused on literally the technical details of the of the.

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Project and I think we could consider a threshold so project of a certain size or perhaps project.

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In a certain location would get this more of an interactive, I think it would help the developers.

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Too, because by the time they came to the formal presentation, we'd be more on this all. On the same.

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Page and understand what they should be thankful, that they didn't waste the time and money doing.

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Something that we weren't going to look at. How does how does the board generally feel about that.

B

Yeah, I think it's a good idea. Yeah.

B

That's healthy.

A

Andrew had more yeah just super brief. It could even be like a thesis of their development or a.

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Development strategy that they want to pitch to us like a headline that they're going to bring.

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To us and then from there everything else again is broken out into smaller portions.

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And so it doesn't need to be a full-scale full-blown review, just maybe hey. This is our.

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Thesis this is our uh concept, exactly executive, summary yeah, um because oftentimes you can.

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Discern what they want to do and this finer pieces, obviously we would get into on a more formal level.

A

And councilman, when you had the westin yards project going, uh were there things elements of.

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That that you found useful the actual process, most of our conversations were around how many units.

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They were going to have and how many workforce housing units we were going to have. We were.

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Going to get out of it, and it was they actually presented with us with lots of figures and lots.

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Of details as to what they could financially make work and give us workforce housing units so.

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It started as a 350 unit project and ended at 250., so you can see there was a big swing between the.

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Start of the project and where it ended up but I'll, tell you a story around where design reviews.

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Started because we didn't actually have either preconceptual design or design review on the.

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Books when I started on the planning board back in 2013., um there was a project that is now built.

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uh And this was really just a road, so you know the new road, that's off of borthwick ave, where.

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They've built a big commercial building out there. They were proposing that road at the beginning and.

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We never really saw it at the beginning and they spent like a year working with the city.

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Coming up with this plan to build this giant bridge to go over the railroad tracks.

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So that they could stay out of the wetland buffer and the planning board got it and we hated it.

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For a whole, numerous amount of reasons, needless to say, that didn't go over well with staff or.

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With a whole host of people, um the end result was okay. Maybe the planning board should start seeing.

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These projects, at the beginning before a ton of money, is poured into them and that's where.

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This whole concept of us looking at things early came from um the end result of that is they did.

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Not build the bridge, they ended up with a road and mitigated some of going into some of the buffer in.

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Order because we were worried about all of the migrating animals and all the stuff that that.

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Bridge looked like a really imposing figure and we had a whole host of reasons. But that was when I.

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Mean we got sued the whole nine yards, so I mean we had a really bad experience and that's where that.

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Came from and I certainly agree that there could be expanded on I've. I go back to the first harbor.

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Corps that we looked at, I mean we not only spent work sessions talking to them on multiple, but.

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That project was so large that we actually broke it into two nights. We did truly half of the site.

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Plan on one night and half of the site plan on another night, and it was the only thing we heard.

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And we were here to one in the morning for half of that project, because there was so much interest.

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So on these larger projects, it is a good idea to really try to break them down and really have some.

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Hard conversations in a work session kind of with them so.

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I believe in it we've done it in the past um where it starts or how we get there. I'm not sure. So if I.

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Might I just um want to because I'd like to figure out a way to kind of get you where you'd like to.

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Go with this, and so I'm just trying to understand like would it be appropriate at the time when.

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We're doing preliminary conceptual to really at that point say when this comes back to us, we're.

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Particularly interested in these topics and we'd like these to be covered, I do want to uh you know.

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Direct the planning board to design review phase requirements that are in the in the site plan.

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Regulations which do limit the purview of some of it or what that what they need to submit as.

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Part of that traffic studies are not usually part of that, but um uses proposed uses. um I can.

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Provide that list to you so that you know, but is there a point either during the completeness check.

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Or during the preliminary conceptual, where we might be a little more structured in our.

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Feedback and ask the developer to you know we're particularly interested in these components. We'd.

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Like you to be prepared to discuss uh the following, and the board can pro, because I.

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Think we do offer general comments about well, we're not super excited about this feature and.

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We'd like to see more of this, but maybe if the board can come to a consensus about the types.

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Of things that they would like the developer to focus on and give that kind of feedback and.

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The chair can invite that kind of uh of scrutiny and the developer can respond by providing some.

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More detailed information about those things that the board's particularly interested in.

A

I think you could have two two methods you could have one where the regulation was modified, a.

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Little bit so that it was automatic of a certain threshold, you don't automatically get into it or.

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You could have with some discretion at the pre-app discussion stage to say these aspects of this.

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Project we would like to have some design review some additional design review conversations.

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I can send those uh regulations, so I mean there are 2.4.3 in the site plan regulations, but I can.

D

Send a summary of that to the planning board members and sorry, and I think, if anything, if.

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You were to engage with this developer sooner rather than later. They may still have a couple.

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Iterations, where there are a combination of different factors included in each.

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In each generation, and so by the time, either we're at our site review or preliminary review.

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We can actually hold both of those in our hand and see the difference and see why a certain aspect.

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Was changed and then there's an explanation to follow providing that hey? This is why this was.

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The result and then us as the planning board, can say well, that's very constructive. Thank you.

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And now we know where they're coming from and we know how they have arrived at this certain.

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uh Outcome- or this result how they responded to it did anybody over? I decided you guys are good.

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Right now, yeah for right now.

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And peter harris has joined us, he came in it's all right. It's okay,.

A

Okay, go ahead andrew, yes, very succinctly: uh what about post project reviews.

C

How do you mean yeah uh upon completion, so design review of west end yards or design review of.

C

Xyz project: I think that would be educational for the planning board.

A

I don't know that we can require it and we can't even go on somebody's property.

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Without their permission, so you mean that badge doesn't get me anywhere. I want to go no it'll.

D

But what we can do, I think, if it it's a group of chairs that we do have a presentation, hopefully in.

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April, depending on how the schedule uh shakes out we'll know, probably the next day or two.

D

We do have vincent hayes coming to talk to the planning board about the post entitlement process.

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Including his flowchart, how he takes the stipulations and he matches that against the.

D

Construction plans that come in he satisfies all the things that are precedent to the.

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Building permit and he checks to. He also follows up during the course of the project.

D

It would not be inappropriate in the future, for uh the board to you know, just request a follow-up.

D

Like where's, this at, I think, getting into a lot of the enforcement stipulations might be.

D

You know a lot of detail, but definitely I think it is a useful exercise for.

D

Just out of your own interest, it's certainly something that in previous jurisdiction, I served.

D

In that, we would have follow up, saying, hey just a summary of what's going on right now out there.

D

Here's all the projects that are nearing complete completion. This is probably two months out from.

D

The certificate of occupancy this item is, you know, just pulled their. You know, framing.

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Permits but we've got all the silt fencing and I mean just some general feedback about larger.

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Projects that might be of interest- and we can definitely follow up- and I think that.

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The board will have a higher level of confidence once you hear from mr hayes about his process.

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And how closely he works with legal public works, the building, official and planning staff.

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To understand the stipulations and enforce those to meet the intent of the planning board.

A

Yeah and I mentioned meeting with him at the last meeting and uh I think there's a good process. The.

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City has for technical compliance, but I I maybe I misunderstood your commentator. I thought you.

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Might be looking for the board to learn from projects that were built? Yes and my anecdote.

C

Would be counselor? Monroe has been on this board for nine years and she's seen projects go from.

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Design phases all the way to completion and now maturity and stabilization in our city. So someone.

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Like that has experience and knowledge of how a project unfolds not only over the course of six.

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Months to a year but much longer and so having that ability to look back on a certain either.

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Zone or certain ordinance that we have uh controlled and enacted to say here's what the.

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Intent of this ordinance ordinance was and here's how this actually played out and if there are any.

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Amendments or less formal changes that we need to make that we can actually understand why.

C

Those are relevant and how those can be applied to future developments. Okay, I get it jim yeah. I.

B

Along the lines of vincent hayes and his job to ensure things are done right.

B

Does every project we approve have a surety bond, does? Does the developer have to put up money and.

B

Pretty much everyone most most of them, do it's my understanding that most of them do.

D

Most of the projects that have site plan review have site plan agreement.

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And and a bond associated with them to make sure that all the conditions are met.

D

And that the project is uh completed and not left sort of half developed. So yes, is that, based on a.

B

Percent of the construction costs or how's the, so I would have to follow up with you on that about.

D

How they arrive at that? I believe that there is input from legal and from also public works about.

D

Some of that information- I don't know how they come to the do. You know the answer to that.

D

Board member, do you know the typical the contractor or the developer? Typically.

B

Provides us with an estimate- and we review that, and you know in most cases you know if we have.

B

To adjust things, we discuss it with them. You know what, if we think it's uh uh adequate, um but that's.

B

How it starts they provide us with an estimate, and we review that to see if it uh meets our standards.

B

Of construction is the bond for the entire construction amount, or is it for a percentage.

A

It's usually for the infrastructure: okay, yeah, the public infrastructure, public or private.

B

Infrastructure, private, okay, if it's a private development, not the not the buildings right, but.

B

The the infrastructure and utilities and different drainage, so the bond can I talk to you. Yeah.

B

So for the full cost, the bond is just related to improvements that will be portsmouth property.

B

In the future, is that true, no, it's the entire. You miss a pub, even if it's a private road, we still.

B

Will take a bond okay, but in general it's for infrastructure and not buildings. Correct okay,.

A

Any other I know andrew mentioned site visit anybody well before we get on site visits.

A

There was a talk discussion about workshop uh is the board in favor of the idea of having.

A

Workshop meetings, if we can keep them relatively brief and uh okay, we'll try to figure that out.

D

Sometimes you can just do a half hour before meeting starts or an hour before a meeting starts.

D

And that way, it's all in one night I used to find that was quite helpful, so you weren't having.

D

To come a different night as well, I agree with that yeah that was nice when we used to do that.

A

I knew we could get you to speak up, so just so I understand is the purpose of the workshop.

D

We would have it before, would it be to to um just for general discussion about the upcoming agenda.

D

Or would just would it be for other administrative type topics or all of the above just.

D

Sometimes it would be based off of zoning that we were reviewing. So if we had like when we did.

D

The adu laws we had many work sessions looking at different iterations and then we'd give feedback.

D

And then we decided how many times we needed to keep coming back until we had something we thought.

D

We could go to a public hearing with and then send it to city council. So that was one of the things.

E

um We used to do it sometimes with projects if there were larger projects.

D

uh We did it a lot with like when we were writing a master plan. We.

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Had a lot of work sessions around that um and any training that the board would.

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Want we'd have work session format to do all of those types of meetings, understood.

A

uh Does anybody know because I don't off top of my head jim mentioned the north end vision.

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Plan is that a part of the master plan? It was part of the zoning that we enacted when we did.

D

Form-Based zoning in north end. That's when the vision plan was created. I believe that parts of.

D

That were taken into consideration when the master plan was written, because I believe.

D

The north end zoning was changed before the master plan was written. If I remember correctly,.

E

Yeah, I believe it's a separate document, yeah yeah. It was separate document, but obviously.

D

That idea and those concepts were part of the visioning of the master plan.

A

So, as the line juice committee starts to develop ideas, it might feed into.

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Workshop work sessions that we could have in advance of a regular meeting.

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That sort of thing we could also talk about changes to site plan.

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Which could possibly add this additional design review steps we talked about earlier.

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We have about five minutes, I'm going to be very mindful of attorney buckley's time. So if anybody has anything else.

D

A

I think I think we can.

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I think we can start five minutes early with you attorney buckley. If that's.

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Thank you very much for coming this evening, thanks for having me.

E

Good evening my name is steve: buckley, I'm legal services council for the new hampshire municipal.

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Association and I'm also legal counsel to all of our members, the 234 members of the.

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New hampshire municipal association, which certainly includes the city of portsmouth,.

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My job at nhma is to give legal advice. 60 of my time is on the phone answering emails and.

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Providing assistance to our members, the other thing I do is this type of training program to.

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Give direct assistance and information to public bodies, planning board zoning boards of adjustment.

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And so tonight I'm going to be presenting. You know my own way of encapsulating the basic roles and.

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Responsibilities of the planning board, but I've also incorporated some elements that deal with.

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The right to know law and some of the issues that board members face with regards to conflicts of.

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Interest interacting with the public uh applicants etc, um and so I expect- and I imagine you'll have.

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Questions as we go through and I think you should go ahead and ask me those questions but.

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The presentation, uh as indicated, starts with the right to know law and then it'll also segue into.

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Some of the uh relationships you have with applicants, the duty to assist and the difference.

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Between quasi-judicial and legislative actions by a public body and some issues with regard to.

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Avoiding conflicts of interest and then I make a presentation on some of the basic principles of.

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What the planning board does subdivision site plan uh some of the key statutes that I think.

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Are important for boards be aware of workforce housing, capital improvement, planning.

E

Which may not be really a topic that your board spends a lot of time. Your particular board spends.

E

A lot of time on it, you might have a separate cip committee, I'm not sure exactly how the.

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City organizes the cip process, but certainly the planning board oftentimes has input to that zoning.

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Amendments, innovative land use, control issues, uh streets, driveways, merge lots and then I spend the.

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The balance of the presentation on procedure- you know what are the steps for a preliminary review.

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Getting an application, the timeline for review third-party consultants, uh it's developments.

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Of regional impact, that was a a matter that the chairman wanted me to address um and then making.

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The decision and relevant considerations as you go through the decision-making process and then.

E

A little bit on appeals um certainly worthwhile discussing the fact we have this new entity, a cop.

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On the block, so to speak, the housing appeals board, which has the power to address, uh appeals that.

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Deal with housing or housing development, which is a new wrinkle to how your decisions might become.

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The subject of review uh beyond the point of your final decision so next slide please. So I always.

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Start with the right to know law, because I think it's fundamental, I mean I've actually used a corny.

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Example that it kind of surrounds everything and touches and concerns.

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All elements how public bodies operate, but it's I can't underestimate the importance of the right.

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To know law and how it kind of um gives you a sense of how you participate in decision making.

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And how the public is allowed to have access to the processes you go through in deciding whether.

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To approve or deny a site plan or a subdivision, um I think the the key thing to understand about the.

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Right to know law, it comes for our constitution, so there's a constitutional requirement.

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That government be open, accessible and accountable, and that requirement is then brought into the.

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Right to know law, statute, 91-a and because it's a constitutional right, the supreme court.

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Jealously guards and gives great attention to cases arising under the right to no law, so we.

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Always have to be very careful to turn very square corners to comply with the right to know, law and.

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I think the key thing to understand about the the statute and it's the the preface of the statute is.

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That the right to know law is intended to give the maximum public access to the actions discussions.

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And records of public bodies and that's one thing that I think oftentimes public bodies have a hard.

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Time sometimes grasping it's not just when you're making a decision. It's when you're discussing.

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Matters within your jurisdiction, I mean I I just today had to uh kind of.

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Make sure a member of a public body was aware that the discussions that were being carried.

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On by him and other members of the planning board via email that preceded a public meeting,.

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Were substantive discussions, no decisions were being made, but they were substantive.

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Discussion, so the public has a right to know when and how and where those discussions are.

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Taking place and when it takes place on email, the public can't see what's going on and they.

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Can't see your thought process and that's kind of a critical understanding for the public to have as.

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I indicate the statute requires the greatest public access to the actions discussions.

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And records of public bodies next slide, please you'll pardon my uh I've been on.

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The phone all day, so I pardoned that my voice is a little freaky. That's why I actually had.

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To borrow some money from from your planner to get a bottle of water, I apologize to her.

E

So it's important, especially with regards to as a public body, to understand what the right to no.

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Law requires for public meetings, and that requires you to first understand what is a public meeting.

E

Well, it's always a quorum of a public body, public body defined by statute or even could.

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Be an advisory board created by the the planning board that convenes so that they can communicate.

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Contemporaneously discuss or act upon something over which the public body has jurisdiction.

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So anything that the planning board has jurisdiction over where you're convening.

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Through a quorum and you're a board of nine correct, so five members present you're a quorum.

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And if that quorum is discussing uh matters within your jurisdiction, that's a public meeting.

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And there are some fundamental requirements for complying with the public meeting elements of.

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The right to no law, the public has to be given 24-hour notice of public meetings. The public.

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Has a right to attend and you, as a public body, have to create minutes of that public meeting.

E

Next slide, please uh just uh this slide just re-emphasizes, what a public body and um it's.

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Broadly construed, it's all legislative body governing body board, commission committee, etc, etc.

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But I think the key thing to understand is a subsection that deals with the fact that.

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Any subcommittee or advisory committee to the planning board so when I was on the plenty board.

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As a further introduction, I was on my planning board in my town for 12 years. I'm currently.

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On the zone board of adjustment, we created a subcommittee to help rewrite our master plan.

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That subcommittee had to do all of the necessary requirements of notice and opportunity for the.

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Public to attend keeping minutes, so any of your subcommittees that you might create any.

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Advisory committees, those are all subject to this requirement of notice attendance.

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And keeping minutes next slide, please so um the convening element, so it convenes.

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Us that all participating members communicate with each other contemporaneously. That can happen in.

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Person, obviously, but it could also happen by email, and it could also happen by telephone conference.

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And so one has to be very cautious, in my view, to avoid having a quorum of the planning board.

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On the same email, where they can, all those members can communicate with each other.

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Or they can hit that deadly button. In your right hand, your element in your email program that.

E

Reply, all that is the deadly button, because you hit that reply. All now, you've created an.

E

Opportunity for all the members begin having a discussion on matters within your jurisdiction.

E

That doesn't mean you don't use email, but I think the better practice. We always recommend.

E

That email to a quorum of the public body be sent from staff and be sent using the blind cc.

E

Method, so that when staff sends it to you all, the email addresses of the recipients of the.

E

Board are in the bcc line so that if I get the email, this is how I get my emails from.

E

The people who manage the zoning board in my town, I get the email. If I hit reply all it's just going.

E

To go back to the staff person, it's not going to be distributed to the rest of the planning.

E

Board members or my case zoning board members. um So uh and again I think we just emphasize.

E

uh The fact that it's discuss any business of the planning board and it could be construed.

E

Broadly, however, I would also say this: um there are going to be occasions- and this was certainly true.

E

With my planning board, where we had an occasion to be together, but it wasn't a public meeting.

E

So in my planning board we had a christmas party every year in december, at the home of the chairman.

E

That was a a meeting that was not designed to discuss public business. It was a social occasion.

E

And certainly one could do that, but that's the exception, not the rule next slide. Please.

E

um Just re-emphasizing the electronic communication piece, um you know we really have.

E

To uh ensure, as many of our members are aware, that you have to avoid substantive discussions by email.

E

This doesn't mean uh you know if a planning board member wishes to communicate to the chair or staff.

E

That they want an agenda item added they can say. Can you add this agenda item not to discuss the.

E

Indian item but to add it or I can't come to the meeting tonight, because my kid is sick or.

E

Whatever the case may be, those are administrative, non-substantive discussions. Those are permissible.

E

Forms of communication, but but I think that the key thing that's important about the statute.

E

That touches this issue is rsa 91-8, colon 2-a, which was actually added to the statute in 2009.

E

And the key element is and I'll just read it to you, communications outside of a meeting, including.

E

But not limited to sequential communication on members of a public body shall not be used to.

E

Circumvent the spirit and purpose of this chapter, it's expressed in 91a, so what that tells us is you.

E

Know if you have two members of the planning board, who've had a discussion which is okay.

E

But then they say: okay! Well, let's go talk to these two other members, and so you send the email to the.

E

Two other members and then further discuss our our conversation and then they send another email.

E

To the other two members, pretty soon you have that very sequential conversation which I think.

E

The statute really says is inappropriate, so um I think we always encourage a great deal of caution.

E

With electronic communications using email, you can use email, but you know as much as possible.

E

Use them through staff and using the blind cc delivery method is really what we recommend.

E

Next slide, please, um I added this slide just to sort of emphasize some of the.

E

General standards that the supreme court, which also I would say, also comes from the new hampshire.

E

Constitution that planning boards have an obligation under our constitution to assist.

E

The citizens in navigating the complex which which they are complex, zoning and planning.

E

Regulations which exist in most communities um and because, ultimately, the what the court's.

E

View is the subdivision of site plan process is not intended to be completely adversarial.

E

It is intended to be a process whereby you know the the owners of property.

E

Have the ability to execute a use of their land consistent with the regular regulations um and.

E

In part, that comes from the fact that- and this is I'm judging back to my days in law, school zoning.

E

Is interrogation of the common law right to do what you want with your land? So that was really.

E

Something that came about during the 19th, the 20th century, uh euclid versus ambler versus euclid.

E

Reality was the case that brought about zoning and was deemed constitutional by the u.s u.s supreme.

E

Court, but it was always recognized, and that was one of the things I learned in in law. School.

E

From land use that zoning is interrogation of the common law right to use your land, as you see fit,.

E

And so, generally speaking, zoning and regulations should be viewed in the light most favorable.

E

To the ability of property owners to use their property, and I think that just fits into the duty.

E

To assist and and recognize that planning boards have some obligation to assist the applicants.

E

And work with them, so they can attempt eventually to resolve concerns and ultimately get a permit.

E

Approved so they can use their property consistent with their their right to do so under the rules.

E

And regulations that you have next slide, please um it's also important to understand and appreciate.

E

The difference forms of decision-making, a planning board- has and participates in, and these are really.

E

Divided into two separate areas, there is the legislative decision-making that you might make.

E

And then there's the quasi-judicial decision-making. Let's just start with.

E

The quasi-judicial just a fancy word of saying you act in a manner similar to what a judge does.

E

You hear evidence you hear opposing points of view from a plaintiff and a defendant from an applicant.

E

In a butter, and then you based on the evidence you receive and the testimony from the applicant and.

E

The abutters you render judgments in the case of a planning board, that's a either approval.

E

Or disapproval or an approval with conditions, so it's very much like the decision-making process, a.

E

Judge has to go through taking that into account, there's a higher level of necessity that those.

E

Who act in a closet, additional capacity do so in a manner that ensures fairness to all concerned.

E

And is as much as possible free from prejudgment and free from decision making which not based on.

E

The evidence that is presented at public hearings and is available for all to see and understand.

E

Oh, this is how the board reached its decision. These were the engineering reports. This was.

E

The testimony these were the regulations upon which the board made this decision.

E

To be compared with legislative decision making, where there's a much greater latitude for your.

E

Own biases to be present and to be used in order to inform your decision making, and I bet I think.

E

The best example of that is when the planning board might be considering master plan changes.

E

You certainly have a right, as a member of the planning board, to bring your own point of view.

E

What is your vision for your city and that's an important part of your role.

E

And that's certainly the reason why, in new hampshire we rely on volunteers, we are relying.

E

On your knowledge of your community to inform that which is going to eventually turn into your master.

E

Plan or master plan update or revision. So as a consequence, you have much greater ability to bring.

E

To bear your personal point of view, when you're acting in a legislative capacity, next likely.

E

The the statute, which really governs the manner in which you have to be cognizant of a potential.

E

For conflict of interest is rsa 673 colon 14.. I think there's a couple of key phrases in the.

E

Statute, members of the planning board, when you're, acting at a quasi-judicial capacity, when you are.

E

You know approving or perhaps disapproving a site plan, and I gather that most of your board.

E

Is your activity is in the site plan realm? uh I imagine, as I understand it, most of the lots.

E

And portsmouth haven't built out: there's not a lot of subdivisions taking place so when you're.

E

Making decisions with regards to subdivision site plans you do have to ensure you do know.

E

How to have a personal or pecuniary interest now personal interest would be the applicant's my.

E

Brother-In-Law or a relative, a pecuniary interest, the applicant is my employer and if my employer.

E

Gets the approval I'm going to get a raise, it's very easy to understand, but then it gets a little.

E

Bit more detailed, but actually one other thing I want to mention a member is not disqualified.

E

For any cause to act as a juror upon the trial, the same manner, so if he would be disqualified, if you.

E

uh Have a disqualification similar to if you were being asked to sit on a jury, you know if.

E

You've ever had this wonderful opportunity to be a member of a jury. I've never done it. I've.

E

Picked juries before and I've seen a lot of processes where juries get picked and.

E

The way it works is each member of the pedic jury is asked a series of questions to determine.

E

Whether or not they would have a disqualifying reason for not sitting on that particular case.

E

And what the court asks next slide, please is, are these questions? Do you expect to gain or lose.

E

Are you related to either party? Have you advised or assisted any party? Have you directly or.

E

Indirectly, given your opinion, uh are you employed or employ any person or party in the case, are you.

E

Prejudiced in any degree, and do you employ counsel appearing in the case, these are the questions.

D

That the jury has asked and I have to stay at the microphone because, it's being I'm sorry yeah sorry.

E

So um those are the things that a a juror would be asking that's similar to what you're kind of.

E

Being required to take into account to what degree would I have a need to recuse myself and not sit.

E

On a jury on a particular case, and I think the most important one is probably pre-judgment.

E

To avoid any sense of prejudgment next slide, please I want to mention two cases that I think.

E

Bear on this issue: um the first is the robert foley trustee versus enfield case interesting.

E

Case because what happened was the matter was pending before his only board of adjustment and.

E

Before there was a final decision on a motion for me hearing whether to grant or deny a motion for a.

E

Hearing uh after a hearing had been concluded, the chair of the zoning board of adjustment decided to.

E

Post an inquiry on I'm sure you may be familiar with the the list serve managed by the office.

E

Of planning development also previously known as the office of strategic initiatives, uh and so what.

E

He was trying to inquire as to whether or not you know what is the: what are the standards that apply.

E

When you're trying to determine if a board can take into account cumulative impact of.

E

Various activities, land use activities and he posted this message mind you that the case was.

E

Still pending before the zba, but he he made this kind of separate inquiry and got some.

E

Replies and then the next day they eventually decided the case and denied the re-hearing.

E

The applicant was aggrieved, of course, didn't like that. He didn't get his relief and he appealed the.

E

Supreme court, but before the matter was heard by the supreme court, uh he learned that there.

E

Was this I guess you would say ex parte contact, I'm not sure it's really considered ex-parte.

E

But it was a form of information gathering by the chairman outside the hearing process.

E

And it was alleged by the applicant wait a minute, I'm supposed to know what's going on, how can.

E

This information gathering to be taking place and there's a decision-making process going on, and I.

E

Have no ability to respond, um ultimately, the supreme court said: well, we don't think you've.

E

Really shown prejudice, and it has something to do with how the vote came out and how this was not a.

E

Particularly material issue, but I think it's fair to say that the foley case does suggest that in.

E

The right case, if there had been a member of a planning board who gathered information outside.

E

The hearing process and then use that either directly or surreptitiously, to form a decision.

E

uh That could have a bearing on whether or not that's an appropriate exercise of quasi-judicial.

E

Authority and could you know, put in jeopardy a decision and the biggest problem we face.

E

And it's one thing that I always and I'll talk about this in terms of conflicts of interest.

E

You know if you believe that you might have a conflict over a prejudgment one of the things.

E

You don't want to do, is to stay in and make a decision anyway, participate in the vote, because.

E

If it's decided you later on should have accused yourself your whole, the whole decision is thrown.

E

Out you don't just subtract out that person's vote it's deemed to have infected the entire decision.

E

Making process and the worst part about that is, if you've handled an application that went on for.

E

Months and now it goes to the supreme court and it comes back you're going to subject all your fellow.

E

Board members to have to do it all over again and that's disheartening. I think for app for.

E

For uh volunteers to feel like- oh my god, I gotta do this all over again and listen to all those.

E

People in the room- and so it's just something to keep in mind, that's why I think the foley case.

E

Has some importance next slide, please, the other one I think is important. Is the.

E

The zebra express case- and this one involved excuse me, are you taking questions now or.

B

Should we any time yeah go ahead, all right? I have a question on next part of communication.

B

So far, I I like to be knowledgeable about the sites that I'm going to be voting on so.

B

On the weekend I go out and visit properties I walk around. I get a feel for the situation that.

B

You know that's being presented. Is that ex parte communication? No, but it's gathering information.

B

Outside the planning board right and ideally, uh what I would encourage board members is to say.

E

That I visited the property on this date at the next public hearing and and a voice and explain.

E

What was observed, I mean, ideally, I think, when we're talking about site visits, um I think site.

E

Visits should be done as a board. I know that's what we do in my zba. That's what we did on our.

E

Planning board, we would all go to the site visit the same time, so everyone was there at the same.

E

Time we all heard the same information from the applicant and hopefully, if the butter's there, they.

E

Have a chance to say a few words so that we can all hear and see what is eventually going to be.

E

A basis of of information from the site visit that might have an impact on your decision making so.

E

I think that's the better practice, but you know, if you are, you know going to a site in.

E

Between meetings, um I think it it would be wise at the next meeting after the site visit is say.

E

Well, I visited the property and this is what I saw um so I I think again as fairness to the.

E

Applicant, so they know you know what is the basis of knowledge that you're using to make a decision.

E

Okay, thank you so so the z1 case is a really interesting case, but this is a situation where the.

E

Planning board in manchester was wrestling with a conditional use permit and had to do with whether.

E

Or not a uh a gas station we built in a semi in a residential area and there was a whole furor.

E

And a website set up by those who were opposed were butters to the the new gas station.

E

What happened is while the application was pending.

E

Two members of the planning board, one who actually was an alderman member of the planning board.

E

Actually, posted messages on the abutters website, saying we're with you. We oppose this project.

E

And then at the meeting, when the planning board was going to make a final decision.

E

Wisely, the applicant's attorney said: hey uh mr alderman, I you did this and we think you should.

E

Recuse yourself and he was given the opportunity to recuse himself and he didn't. uh He went ahead.

E

And voted he voted no and of course they appealed, uh and you know the superior court judge says.

E

The you know the aldermen did not enter the decision-making process with an open mind and.

E

That was improper and the decision was undone. They have to do it all over again. I don't know if the.

E

The gas station was ever built, but I think it's. The point I would make is.

E

Stay off social media, it's just there's nothing to be gained to be posting things on social media or.

E

Or to going to social media or being a friend on a website that deals with a pending application,.

E

It's just gonna necessarily enmesh you in circumstances which could put in jeopardy an.

E

Argument or could jeopardize your ability to have you know to make a fair decision or someone to.

E

Accuse you have prejudgment, so the z1 case, I think, is important because it what I just tell people is.

E

What I did a couple of years ago, I got off all social media, I'm not on instagram, I'm not on.

E

Twitter, I'm not on metaverse it just it doesn't. Do me any good to be on it, um so I that's that's. Why.

E

I think the z1 case is worthy of merit. Note next slide, and so, when we're dealing with conflicts of.

E

Interest, you have a couple of choices uh under 673.14. You can ask your fellow board members.

E

I want your input, should I recuse myself here whether it's a potential relationship issue.

E

To an applicant or whether or not you've arguably formed a prejudgment, you can ask your fellow board.

E

Members, do you think I should recuse myself and take take heed of what they advise you um a board.

E

Member can do it a board member say I think we should take a vote on whether or not this member.

E

Is recused or should recuse themselves, so you can use that as a basis for making a decision.

E

To to recuse yourself from a particular matter, I I just would say, though, um just so you know.

E

The applicant can't ask for an advisory vote on recusal, and neither can anyone else only.

E

Board members can do that, so it's reserved for your ability to form a sound decision.

E

Is this something I should not vote on? um I've already mentioned social media rules again the.

E

Main takeaway I have with these issues. If it is in doubt, you know, if there's some concern.

E

There's you have some doubt in your mind: should you recuse yourself just recuse yourself? I.

E

You've got, I would assume alternates who can sit um and so you've got nine board members.

E

uh So, even if you lost one or two, you have still have a quorum and you can make a decision and I.

E

Think, just that's just the better practices, err on the side of caution and recues next slide. Please.

E

So the rest of the presentation is really about a planning board fundamentals: the plenary board.

E

Statutes that are most common of concern and attention, uh and then the procedure, but before.

E

I get into that. I thought I'd just stop and see if there was any questions about conflicts and.

E

The right to know law before I moved on. Yes, um can you just be a little bit clearer? I guess.

D

I'm a little bit confused when you talk about the duty to assist, um because you don't really want to.

D

Be discussing a project with an applicant prior to them actually being heard in a public forum.

D

So you're you're talking about sort of the narrow line of the process of how to go.

D

Through it, but not the substance of the actual project. um Well, I guess I would say this.

E

I encourage all boards to liberally use conceptual consultation. That is the best way to communicate.

E

The board's concerns in a non-binding fashion and help them move forward with their application.

E

But the other thing that you've already done as I understand it, you have a technical advisory.

E

Group now that's made up of city staff who really give the applicant. You know the.

E

The skinny on all the things that they're going to have to address in front of the planning board.

E

So you're you're you're miles ahead of many other communities. They don't really have that capacity.

E

To do that kind of thing, that's really what I'm talking about and as much as possible. I think.

E

When I say the duty to assist is in the public presentation process as much as possible.

E

You know direct to the applicant in a fashion where they can get to yes, and so I think that's.

E

The other thing, but there is a there's, a very interesting case involving it's quinlan versus the.

E

Town of dover and it's interesting because what happened was there was one planning board member.

E

Against his better judgment was kind of drawn into an extended discussion with an applicant.

E

On how they could get their application approved after it had been denied once or twice.

E

And ultimately, he did agree to sit down with the applicant and try to give him a heads up.

E

Of what was wrong with his application, how we can get it approved and later on, when it wasn't.

E

Wasn't approved, he accused this member of leading down the primrose path and he claimed that it was.

E

A denial of due process- and the interesting thing is that happened in that case, is the supreme court.

E

Said no wait a minute. You know. I think this board, member in good faith, really was trying to assist.

E

This person- and yes, it probably wasn't a good idea for a planning board member to have an individual.

E

Meeting with an applicant, but what the member did was, certainly um you know consistent with this.

E

Duty to assist the applicant understand what the parameters of the rules were and how they might.

E

Get to an approval, so I think, but again I think my point of view. Conceptual consultation is the best.

E

Way to help applicants move forward and understand how they get approval, uh and I I really you know.

E

One of the things I always encourage many of the municipalities which you can do in rsa 67435. You.

E

Can adopt an ordinance by the city council here or the town meeting, where you can require preliminary.

E

Review not just that you have as an option but require it. You can't even get to file an.

E

Application, unless you do conceptual consultation, there are other forms of preliminary review.

E

There's there's design review, which I understand discussed tonight, but I think conceptual is, is.

E

The most flexible- um and I think this is the way best way to fulfill that duty to assist. Thank you.

E

Okay, so uh this is the inventory of the the major duties. The plain word has.

E

um Master plan, cip, but again I I don't know, is your cip done by the planning board of my.

E

Staff is the staff driven process, it starts with staff and then there's uh three members.

D

Of the planning board that meet with each of the departments and then the whole plan.

D

From the subcommittee comes to the entire planning board and then it's sent to city council.

E

Excellent, I I asked that because there's another mechanism which many times have gone to.

E

Where, instead of the planning board driving the cip, it's done by a committee appointed by.

E

The governing body- um but that's that's, that's a different manner of doing it. um Now I I have.

E

Up here recommend zoning ordnance amendments. I think the way it works in portsmouth is.

E

Zoning amendments come from the council, they come to you for a recommendation, but then go back to.

E

The council for public hearing and adoption so you're, really not quite as involved in zoning.

E

Amendments as you would, if you were a small town, you certainly adopt your subdivision regulations.

E

Site plan regulations, I don't know if you have a lot of excavation activity but is, is your.

E

Planning board the excavation regulator is that somebody else in town: um it's not really really.

E

A big issue because you may not have a lot of excavation activity under the excavation statute.

E

I've been involved with that in other jurisdictions. I don't think there's much.

A

Of it going on here, okay and then finally, the planning board also is given the authority to.

E

Regulate driveways, so I don't know if you have manual regulations but most towns, the.

E

Plane board adopts the driveway regulations and then the public works department or the highway.

E

Department issues the driveway permits. We have a trap, parking traffic and safety department that.

D

Usually handles all the driveway permits uh next slide, please so subdivision of cyclone approval.

E

You know, as I mentioned, I think, are requiring preliminary review subdivisions which, again you.

E

May not have a lot of subdivisions. Obviously the idea here is you're approving divisions of land.

E

You approve divisions of land that show new streets, and certainly that would include approvals.

E

Including utilities, etc site plan approval is obviously a different mechanism where you're.

E

Approving the uses of land for multi-family and non-residential uses, so it's more than.

E

Three dwelling units that comes under the aegis of site plan review.

E

I would mention I'm sure you you're aware of this. The plant board can approve developments.

E

Or change or expansion of uses so anytime someone changes the use of a site plan. They.

E

Might have to come back for further cycling review. uh I also always try to mention that.

E

The planning board or the sl or the city council can set thresholds below which.

E

You're not required to get site plan review now. I think there's a lot of merit for that. So.

E

If you've got a strip mall, that's adding, I don't know 500 square feet of additional floor space.

E

One of the units do you really need site plan review? You may not, and I think that's just a.

E

Judgment call at what point is it really necessary that you have site plan review.

E

And would you have you know a de minimis waiver of site plan, given the fact that it has a diminished.

E

Impact on the public, health, safety and welfare, but the better practice is to put.

E

It in your regulations, you know, if you're, adding so many more square feet of of uh floor space or.

E

Parking or a slight modification to landscaping, you might waive site plan review because it may.

E

Not be necessary, beverly, so just a quick question: what about exceeding the minimum.

D

Standard and having a higher standard for site plan review than what the the state.

D

Contemplates in statute well, basically your opinion, any change of use or any non-residential.

E

Use is require site plan review, so we really don't have a threshold that below which you don't have.

E

To get site point of view, everything has to get side plan review. That's why I think it's a better.

E

Practice to set a threshold below which site plan review is not necessary and that's really.

E

A judgment call of what what's appropriate in your particular circumstances, and I just always want.

E

To mention, because you may have it happening in your community site plan review cannot be required.

E

For co-location or modification of personal wireless service facilities and that's because.

E

In new hampshire, we have this statute that has, to some degree taken a lot of the regulatory control.

E

Over um cell tower locations uh to rsa 12 k, so I just always feel it's necessary to mention that.

E

Next slide, please please master plan. um You have to have a master plan to have a zoning.

E

Ordinance obviously, you've had a master plan. You've had a zoning ordinance for many years.

E

um I all I would say generally about your master plan. There are two sections that are absolutely.

E

Critical to have a zoning ordinance is the vision section that articulates the desires of the.

E

Citizens and guiding principles and priorities in the land use section, so you've got to have those.

E

Two sections: in order to have a zoning ordinance, but then there are many other elements that are.

E

Common, I would assume that one of the more common elements of your master plan these days might be.

E

Sleep floor rise, climate change, that kind of stuff, because that's kind of a topic that's going to.

E

Continually be an issue for municipalities in the seacoast area to deal with their master planning.

E

Process- and the other thing I would just mention, is generally speaking, although not required.

E

The um the statute would suggest that master plans should be updated, at least every five.

E

Years now I've known some communities have gone 10 15 years, which is technically not a good idea.

E

Because the longer your your master plan goes out of sync with what's actually your expectations in.

E

Your community, which is what the master plan is supposed to do, uh there's going to be difficulties.

E

Saying your your regulations are consistent with your master plan. Our current one goes to 2025., so.

E

Does the state the state law prescribe a planning horizon for the master plan? It just says it is.

E

Recommended to be updated every five years, but it doesn't require it. um It was a proposal, a couple.

E

Years ago, to require it every five years and that was poo poo'd by the house of representatives next.

B

Slide, please, um I also feel it's important to just mention the workforce housing statute that.

E

We do have a workforce, housing statute and it does impose a duty on municipalities to.

E

Achieve um a majority of the land areas in your community that are zoned residential.

E

Must be allowing workforce housing? You know, and you know the problem with the statute.

E

It's very tricky to implement because the workforce housing statute is defined on the.

E

Price point for the housing and the price point for the housing which is deemed affordable.

E

Is based upon formulas developed by housing, urban development and new hampshire housing. But as.

E

Indicated here, housing is affordable for those of no more than 100 percent. This is housing for sale.

E

Of the immediate income for a four-person household for the county, so it would be.

E

Rockingham county, you would look at what is the median income and, and that would define.

E

What is deemed affordable, which you take into account the cost of the mortgage and other.

E

Carrying expenses and uh the normal expenses for a household- and you come up with an affordable.

E

Number those these numbers are actually available from the new hampshire housing uh associate new.

E

Hampshire housing, a finance agency and they have a table that provides those numbers and.

E

So it's a tricky statute, but it does have these duties both as to housing, which is for sale.

E

And rental housing um and I think in rockingham county. I know that the rakhine planning commission.

E

They have typically recommended the communities have some kind of mechanism where you can afford.

E

Provide a density bonus so that there's a an additional amount of housing that might be made.

E

Available in particular areas of the community, because you're going to do it on an affordable.

E

Basis and then there's the tricky part is making sure it stays affordable and there are covenants.

E

To ensure it stays affordable, these are all tricky elements. This is not an easy statute, but you.

E

Should be aware that there is legislation that um I think has a potential chance to pass. That would.

E

Essentially say this would certainly be of impact to the city of portsmouth.

E

If you have sewer water for a parcel, you will be allowed to have one or two up to two more dwelling.

E

Units on that parcel, so it's gonna. The idea is to have more infilling of units of dwelling units for.

E

Those communities that have you know sewer and water, and that certainly would be the city of.

E

Portsmouth, so that something to keep in mind- and that would bear certainly on the workforce, housing.

E

Statute next slide. Please excuse me, mr buckley is that legislation that's going through the.

B

Legislation now that yes, the two unit- yes idea, yes, it is, uh and if I was really good, I would quote.

E

You the house bill, but uh I don't know those of you since you're. Obviously, all member that you're.

E

In portsmouth is a member of the new hampshire municipal association. We put out a legislative.

E

Bulletin every friday, so there'll be a friday. This coming friday, there'll be a legislative bullet.

E

So if you send an email to me and at the end of the program you'll have my email address.

E

You can send an email to me I'll make sure you'll get added to the electronic.

E

Delivery of the legislative bulletin and in there we summarize all the pending legislation.

E

Of concern, that certainly is one of them um that is pending, and the municipal association.

A

Actually opposes that legislation, if I understand it correctly. Yes, um it's a tricky thing for us to.

E

Be flooredly opposing certain of these proposals because there's there's certainly pressure on the.

E

Need for more housing, and sometimes we will take a position which is opposing but not vigorously as.

E

Opposed to just very strongly opposing a project, I don't do the the government affairs, so I I'm.

E

Not really sure how hard on the pedal we're currently working on that one, but certainly.

E

It has drawn a lot of attention and we're uh currently have been testifying against that.

E

Particular proposal, because our view is zoning is a local decision and it shouldn't. We should.

E

Not have statewide zoning, so the workforce housing statute is a form of statewide zoning.

E

The adu statute is a form of statewide zoning. A number of years ago there was a.

E

Statute that required every community to allow manufactured housing. That's a form of statewide.

E

Zoning we've traditionally always opposed laws that impose statewide zoning, but we think zoning.

E

Is a local decision if you're talking about the one that would allow up to four units.

E

It's actually been killed. It has been killed, yeah. Well, it's the last. I heard.

E

I know that they're meeting tonight and tomorrow, because there's crossover as of.

E

Friday and they have to get, the house has to get all of its business done tomorrow, night. Otherwise,.

E

Bills will die and who knows will happen so we've already touched on the capital improvement program.

E

I just would mention the cip is not regulatory, so you really can't use it to deny an approval.

E

It is merely designed to be budgetary recommendations to the council on what would.

E

Be appropriate allocations to your capital reserve funds for future improvements. Next slide, please.

E

um I think I've already mentioned it's our understanding of your zoning amendment process.

E

Requests for the amendments to the zoning ordinance come through. I understand it here.

E

In the city, as proposals from the city council, uh they refer to the planning board for your.

E

Consideration but uh the zoning process is pretty much a council council-driven.

E

Way of achieving changes to your zoning ordinance, um although they are required under this governing.

E

Statute to hold at least one public hearing and all zoning amendments uh now certainly.

E

It's a lot more flexible in a city to have zoning amendments in a town. You have to wait.

E

Every year, but um that's the process which is available for cities, the 675 colon two right so.

B

I'm sorry just this is a generic question, but are you familiar with? Is there state laws requiring.

B

Public notification to every resident within a zone if you're going to change their zoning.

E

Yes, so it's a little complicated, but if you have um actually, I can find it. It's rsa 676.

E

E

Colon 7., so it says, for instance, in 635 colon 7. If a proposed amendment to.

E

A zoning ordinance would change a boundary of a zoning district and the change would affect.

E

100 or fewer properties notice of the public hearing on that amendment.

E

Shall be sent by first class mail to the owners of each affected property so less than a hundred, then.

B

That's the less than 100, that's the cutoff and then there's another one that comes in.

E

Well, I think that's the the main uh there's also a a provision here that talks about if a.

E

Proposed amendment to a zoning ordinance would change the minimum lot sizes or the permitted.

E

Uses in a zoning district that includes 100 or fewer properties, notice miss sent by first class.

E

Mail, so if it changes the boundary of a zoning district or changes, the minimum lot sizes and.

E

It's affecting 100 or fewer uh properties, then there there is that separate notice requirement.

E

To each of the property owners of 100 or less so, yes, that that is in existence. Okay, thank you.

A

Just one other thing before you leave that slide. The section of the zoning ordinance you've got up.

A

There actually does state that any proposed change. Designing ordinance should come to.

A

The planning board and then the planning board sends it on to council. So if, for example, there.

A

Was a petition or another say the conservation commission wanted to change or something like that.

A

It could come to the planning board or the planning world could come up with its own.

A

Notion but it has to go to council and I would defer to your better understanding of the city.

E

Charter, I went to it quickly to try to at least accurately represent what what the the section.

E

Was- and that was the section I found- that's the one next slide. uh I do always feel it important.

E

To mention the innovative language control statute, because it's really a very unique and.

E

Full of promise for communities to have innovative zoning and innovative ways in regulating uses.

E

And there are many different ways in which the innovative language control ordnance operates.

E

But it really should be seen as a way in which the planning board can be a zoning regulator.

E

Normally, the planning board doesn't do zoning, but the the innovative language control staff.

E

To convest the planning board, with the ability to grant conditional use permits um now the one that.

E

I'm most familiar with because I wrote a zoning ordinance uh change for a community on this issue.

E

Was a situation I recognize in the community? I represented that this was about 20 years ago, when.

E

Cell tower replacement was was a big issue and I noticed right away that we had this zba over here.

E

Making decisions about whether to grant a special exception for a cell tower, then the planning board.

E

Over here granting a site plan review and the process was cumbersome. So I said, let's just.

E

Combine it together, we'll give the planning board the power to grant a conditional use.

E

Permit for the cell tower and then the planning board can combine the cup process with site plan.

E

Review and it's a degree of administrative efficiency bringing it together in one one.

E

Activity and one funnel one board, I don't know if you have this problem, but I've certainly seen.

E

It in in plenty more to the zoning boards that you know the person who's the applicant goes to.

E

The zoning board- and they say x, y and z, and then they go to the planning board and they say a b and.

E

C and it's a little bit different and I think there's sometimes a little bit of an annoyance.

E

That you know, what's the information that is provided in one board is slightly different.

E

But if you have a cup process for some of these extra land use activities, it's all in front of one.

E

Board, it's all right there and you can combine your site plan review with the ceo with the.

E

Granite conditional use permit, so I think you know it's it's a wealth of potential area of regulatory.

E

Efficiency and there are a lot of different elements to the innovative energy control.

E

Statute, let me just mention that the one that I like the best for a planning board is.

E

If you uh decide to deny a cup, the appeal is not to the zoning board of adjustment. It's the.

E

Superior court and that's how it's structured to only allow appeals to the superior court so.

E

This is not there's not a second bite at the apple at the zoning board of adjustment.

E

To a question, a decision I made by a planing board under innovative language control.

E

And that's designed that way to again, I think administratively make it more efficient in.

E

Terms of how would one get a second review of what the planning board did or didn't do.

E

Next slide, um I think that I would just mention quickly: you're, probably familiar.

E

With this, the planning board has a great deal of impact on public streets, because.

E

You have subdivision regulations that have street design requirements, site plan, design requirements.

E

um You probably, to some degree, have a great deal of impact on the decision-making. If there's a I'm.

E

Sure, a strong relationship between the planning board and the public works department. What is.

E

The city's road construction standards- ideally they are, you- know, compatible with each other.

E

The plane board also has this power to ensure a time of approval that there will be a minimum.

E

Amount of improvement to a road before occupancy permits can be issued, and that could certainly be.

E

An internal road network for a a large residential project which considered under site plan review.

E

And then, of course, it's the plenty board's duty to impose performance bonding. I noticed there was.

E

Questions about that today, that is part of your job when you grant the approval, obviously with.

E

The input of staff, what is the necessary amount of performance bond security to make sure the project.

E

Will have uh sufficient financial obligation imposed to ensure all the infrastructure public.

E

Health safety and welfare infrastructure is built according to your specifications. Next slide, please.

E

I mentioned driveways, I I a lot of planning boards, don't really understand the driveway.

E

uh Statute but it just the planning board with absolute control over access to public streets.

E

And that's the planning board's ability to adopt those regulations and to require compliance and.

E

And the other thing which is interesting about the driveway statute, even if a property did not.

E

Get a driveway permit for your public works department if it has a driver that was in.

E

Existence before driveway permitting it's still within your purview, to require that driveway to.

E

Be conforming in a way that it doesn't create a public health safety and welfare problem.

E

It's not creating excess erosion or water being cast on the adjacent road, creating hazards. The.

E

Traveling public do either to the water freezing or causing other travel problems next slide. Please.

E

Merge slots- I don't know if you get a lot of these, but it's a common uh ability that the statute.

E

Permits someone to ask that uh two adjoining lots be merged for tax, and uh you know zoning purposes.

E

I the one thing I would mention, and you probably you probably have this done at the staff level.

E

But the caution- I always mention about someone who comes to the town or the city to do a merger.

E

Of lots is that, if it's the case that one or both of the lots that are being merged.

E

Are subject to a mortgage, you really have to make sure that the mortgagee has signed.

E

Off and has given a consent and the consent is recorded, along with the recording of the.

E

The merger document that might again mainly be done by staff next slide. Please.

E

uh I didn't mention impact for you so much that something really comes under um innovative land.

E

Use control but planning boards all have this authority to impose offside exactions, uh which.

E

Is separate and independent from the authority to have an impact for your ordinance, you might have.

E

One that requires certain traffic improvements or drainage improvements or utility improvements.

E

But this one is very specific and targeted. So if the planning board is approving.

E

Let's say a walmart and they want to put the walmart in. You can determine that that walmart's.

E

Going to have a unique impact on either the drainage, the streets or the sewer, that is.

E

Connected or would be connected to that particular private property use and can require that the.

E

Applicant pay for offsite impacts, so you can say to them: oh well, you're going to need an.

E

Xl or a d-cell lane or you're going to need a traffic light and that's the authority which.

E

Is derivative of the offset x-action statute, 674-21 roman 5 small letter j next slide? I've.

E

Already mentioned preliminary review just want to emphasize again you can mandate it.

E

um You can put it in your regulations, but if you want to mandate it, that is, everyone has to do.

E

Preliminary review or preliminary consultation, you really have to get the council to approve.

E

A requirement of that uh under rsa 674, colon 35., you may have it. We have okay and that's good.

E

Because I think that would ensure that you get that kind of of uh preliminary consultation. um I.

E

You know I've never really dealt a lot with design review. I've only mainly dealt with preliminary.

E

Conceptual consultation, which I always think is a beautiful way to to flesh out what a project is.

E

Could be, I think, the the thing I would say about the process is, if you get a project before they.

E

Have spent all that money on those sophisticated engineering, drawings, you're much better off.

E

I can't I'm sure, you've seen the paint expression you say to the person well, can we move that road.

E

100 feet that way, and you can just see the engineers just melting in front of your eyes,.

E

Because they know what that's going to mean in terms of the engineering and the drawing.

E

And the other considerations, so you know you get them before they spend all that money. It's a lot.

E

Easier to manage those changes in a conceptual consultation next slide, please. I have a question.

A

Sure we have a historic district commission here in portsmouth and we have a historic district.

A

Obviously, um under innovative land use controls our design review. Are you familiar with any.

A

uh I guess statutory authority for a planning board to have additional say.

A

On the massing and sighting and shaping of improvements and buildings in a community.

E

So you're really talking about a change to an existing use that isn't going to trigger site.

E

Plan review it would it would, it would trigger cycling, review okay, so how I mean I know you.

A

Can look at setbacks and you can lock coverage. You look at all those things, but what about the actual.

A

Form of a building- oh so what you're really talking about is aesthetics and yes,.

A

Potentially, the supreme court has made clear that that there is, there is a realm of authority that.

E

Attaches to the ability of the planning board to regulate aesthetics, so there's a case.

E

I can't remember the name of it: um it involved someone who I'm sure, you've seen them before the.

E

The large retail outset, outlet that sells campers and they always want to put up a flag, 500 feet.

E

Tall with a huge flag on it- okay, that's it was one of those in in tilton, and the planning board said.

E

That's not going to fit. You know you could put up a flag, you put up a pole, but not that big.

E

And, of course, they claimed that was an invasion of their first amendment, rights, etc.

E

But it was based upon the inherent ability of the planning board to require.

E

You know that it that the use aesthetically be consistent with the neighborhood. Now it's.

E

Probably better to put it in your regulations, but the power to impose some aesthetic standards.

E

Architectural standards- that's certainly within the realm of the planning board's ability to.

E

Regulate and I think again, probably better to have it in your regulations, your architectural.

E

Requirements- and you know how things would appear- you know that kind of thing. Thank you.

E

Next slide, please uh again: this is the the balance of the presentation is kind of the process.

E

And this is probably very familiar to you. There's a thing called the completed application, which has.

E

To be done at a public meeting, I don't know how you do it here when I was on the planning board.

E

The plan came in the planner, went through the checklist and then when the planner came to the.

E

Public meeting we would say bill clubbing was our planner bill. Is it a completed application.

E

And he'd say yep and we'd say fine, let's vote that it's complete and then we would move into.

E

The approval process, but once you've done the completed application process, you are then within.

E

A timeline to get the project approved next slide. Please, and that timeline is 65 days from the date.

E

Of plan acceptance, it's not a lot of time, um so the reality is you, you might have to front load.

E

Especially if you've done preliminary consultation, you know some of the review stuff that you need.

E

I think, in terms of you know, a very complicated project. My experience has always been when.

E

You're dealing with that 65 day deadline most applicants if they feel you're working with them.

E

Are prepared to give you more time and, and that's really kind of when you do that, make sure it's in.

E

Writing so, if that the hearing you know you're bumping up against 65 days and the applicant.

E

And you look at the applicants say we need some more time. You know that you just have a piece.

E

Of paper, you can whip out and say, here's here's your consent to give us another 30 or 60 days.

E

The other approach to that is to say: well, we can take up the application tonight and.

E

Either grant approval or not approval, if you would prefer us to say no, we can certainly do.

E

That and facilitate this process and most of the time, if they're willing to work you and.

E

You're working with them they're going to give you more time, so I guess that's the main thing.

E

I would just mention about the 65 days: it could be a give and take process what about when the.

C

Board may vote to postpone an application because of insufficient information or something like that.

E

Postpone all right, so that's not a statutory. You know concept. um The only analogy that I can say.

E

um Is there is a case that says if the board has said you have to meet this requirement and you're.

E

Not meeting that requirement, the board can say no. So when I was handling uh for a planning board, an.

E

Application where we required the applicant to pay for an engineering review to decide whether.

E

They had a fair share of their approval of a road and they didn't pay it on time. We sent them a.

E

Letter saying you've got to pay x dollars by this date before we continue and they didn't pay it. We.

E

Brought it up for I well, I said madam chair, I think you ought to bring this up and say we're.

E

Going to deny your approval for non-compliance with the board regulations and the the necessity.

E

For pay for the cost of the engineering review and they immediately put that, but no no, no we'll we'll.

E

Pay you and we'll and we got it taken care of so I know I can you can do that, um but just to postpone.

E

I mean I, I think so you have to get consent from the you can get consent, but you want.

E

To get the advice then, but you know you, you still have to deal with that 65 day deadline.

E

um And uh the better approach is to get it you know done in writing. So it's clear you've been.

E

Given an extra 30 or 60 days, whatever the case may be okay next slide, please.

E

um You you kind of already have this. I this is a slide. I mainly use for smaller communities.

E

You you, I understand it. I don't know if you've done this, but there there is a mechanism where.

E

The city council can delegate to a subcommittee of staff minor site plans, and that way you can.

E

Do a minor site plan approved process which can allow for someone to appeal a denial of.

E

Them on your site plan to the planning board, so there's a mechanism for that. um You already have.

E

A technical review group, it's excellent you've, got staff involved in meeting with the applicant.

E

To know what they're going to be facing and then I've already mentioned thresholds, you know that.

E

You can establish thresholds below which site plan review is not necessary. Next slide. Please.

E

Acceptance vesting is an important concept that I always want to emphasize to planning boards.

E

The idea behind acceptance testing is when the plan is deemed complete.

E

The regulations, in effect at that time, are the regulations that apply to this project.

E

So if at plan acceptance, the regulation set x but three months later, the regulations are modified.

E

It's the regulations, in effect, at the time of plan, acceptance which are material and binding.

E

For that application and that's the concept between acceptance testing, so when you accept.

E

You're, accepting with the understanding that those the regulations you have in effect, then, whether.

E

Zoning or site plan or subdivision those are the ones which were which will be binding on this.

E

Application and if the rules change, the change rules will not apply to that accepted application.

E

uh That's part of the reason why it's important to be understanding there is this ability, or this.

E

Protection against changes in the rules, while the application is pending before the board.

E

Next slide, please, I I also put in these slides about developments of regional impact. I don't.

E

Know how often you have this circumstance, but obviously it's something where you would work.

E

Closely with your regional planning commission so anytime, a project is reasonably expected to.

E

Impact a neighboring community because of size, proximity, transportation, networks, uh aquifers or.

E

Surface waters that could be affected, um you know the beauty of your board and that could also apply.

E

To the building inspector on the zoning board of adjustment, but to say it's a development of.

E

Regional impact and we're going to give notice to the a budding community and the regional planning.

E

Commission so that they can participate and have the status of the butters next slide.

E

So you have to provide timely notice to the affected communities. uh You have to allow the.

E

Rpc potentially uh affected municipalities to furnish timely impact input uh and it.

E

Encouraged planning board members really to incu consider the interests of others outside your.

E

Community, when a project near a border having an impact on our community uh bears meriting the.

E

Point of view of your neighboring community and the regional planning commission next slide. Please.

E

um So your your obligation is to review it promptly and determine whether or.

E

Not a development could be construed as one having a regional impact and doubt concerning.

E

Regional attack is supposed to be resolved in a determination that development has a potential.

E

Regional impact, I would just mention there was one case uh involving a a shooting, a gun activity.

E

In the town of warner and so what's important to know about the development of regional impact.

E

Statute is that in that particular instance, the planning board decided it didn't, have a.

E

Regional impact, even though it was right next to the adjoining community town of hopkinton,.

E

But when the case was appealed superior court, the superior court judge said.

E

Failure to properly take these standards and find our development of regional impact would result.

E

In the case being thrown back to the planning war, because you didn't appropriately find a regional.

E

Impact was was in existence, so it's something to keep in mind. It could result in a decision being.

E

Reversed and sent back to the planning board next slide. Please.

E

So the procedure you're supposed to follow is um within uh five days at which a dra determination.

E

Is made so you decide that I think that probably the better practice is that plan acceptance or.

E

Maybe even conceptual consultation make some kind of preliminary judgment. It is a development of.

E

Regional impact, so that as quickly as possible, you can notify the affected community and the.

E

Regional planning, commission um and then you have to then submit a copy of the development plans to.

E

The regional planning commission, so the regional planning commission can do its job and give an.

E

Assessment of the regional impact and then 14 days for any public hearing you have to notify by.

E

Certified mail, the affected community and the rpc so again that they can participate in the process.

E

Next slide, please, and luckily the statute was amended last year to give you an additional 30.

E

Days on the 65 day deadline, if it is a development of regional impact, because we recognize that.

E

There's a lot of steps built into the dri statute, so it was decided last year by the legislature to.

E

Give plenty boards an additional 30 days for a review added on to the 65 days next slide. Please.

E

And then uh this is just some new statutes which I think are worthy of your attention.

E

And I know there was a discussion about this uh doing third party of review of construction of.

E

Improvements approved by the planning board there's this new statute that requires the city.

E

If you're going to have a separate engineering firm to review construction of infrastructure,.

E

That was approved by the planning board you're supposed to develop a scope for the inspection.

E

Or, alternatively- and I don't think this is a great idea- allow a signed certificate from the.

E

Site plan designer in lieu of inspection, I'm not sure if there are many towns that go, that route.

E

Allow them to do that, but, okay, you know if an engineer is prepared to put their.

E

Stamp on a plan saying it's been done according to the requirements that might be sufficient. I I.

E

Might make a judge here, but I would think separate. Inspection would be appropriate.

E

Then there's also this requirement this new requirement. That says you can't adopt a regulation.

E

That prevents a person from installing a safe and commercially available heating or energy system.

E

Of their choice, these are just amendments to some of these statues next slide, please, um you have.

E

Probably been through a lot of public hearings, just always important to mention that of the.

E

Public hearing process by statute you're required to hear from the applicant of butters and others.

E

With direct interest and others as permitted by the board, now others with direct interest.

E

Would mean someone who could say this project will affect me or my property.

E

And then others as permitted by the board would be anyone else in the community. So I think the first.

E

Three, you really have an obligation to hear from a butters applicant and those with a direct interest.

E

I I would assume you probably have because uh rsa 676 colon one says the planning board has.

E

To have rules of procedure, you follow the rules of procedure, um site visits are public meetings.

E

I again I you know I've always been of the opinion. We still do it with our zoning board of adjustment.

E

I did it when I was in the planning board. You know, site visits are public meetings. We give.

E

Notice to the abutters, we all go and it's kind of a gang meeting. We stand out in the.

E

Mud or in the rain, or just a bright sunny day, and we talk with the applicant. What are you proposing.

E

And then we come up with a short report which is provided at the public hearing process um and.

E

I I mentioned reagan's rules. I don't know how how many have read the reagan's rules, but there.

E

Are a wonderful set of uh wise little observations from fred reagan's? Who was.

E

For many years, the chairman of the phoenix planning, commission and uh they're really.

E

Excellent ways in which understanding your role as a planning board member.

E

Next slide, please now, when you're doing the deliberation process, it's a couple of things.

E

One has to keep in mind, get all the information you need before you close the public hearing.

E

And uh avoid ex partly contact with parties while you're the deliberation process. So if you've.

E

Closed the public hearing but you're not going to conclude the decision making process that night.

E

You're going to come back another night really avoid having ex parte contact. The board can rely.

E

On your personal knowledge of information that you are aware of, that bears on your decision making.

E

And you're not bound to accept the conclusions of experts. However, if all of the experts say.

E

You can't do this, you can't do it and I think that the con disease case is the most.

E

Best example of what you can't do, and so I always mentioned condos east, because it.

E

Involved, the town of conway being proposed being asked to approve a project that had.

E

One means of ingress to I think it was like a 35 or 40 subdivision.

E

Of small of a subdivision of subdivided lots and the planning board was convinced that one ingress.

E

End was insufficient: they wanted another road on the back end, another 500 foot road that would.

E

Provide a different means of ingress and egress. The applicant's engineer said you don't need it.

E

The planning boards consulting engineers said they don't need it. The public works department said you.

E

Don't need it and then the planning board said we don't care. We want a second means of egress.

E

Queen court said you can't do that. You can't make a decision that ignores the uncontradicted expert.

E

Testimony that it doesn't mean you have to accept what the experts say, but if it's.

E

Uncontradicted, you can have a hard time saying no or going contrary to that expert opinion.

E

Next slide, please, the dartmouth and versus hanover case is also a key one. That one has to be mindful.

E

Of um because, if you may know anything about the case, dartmouth was building a brand new super.

E

Duper athletic center and the superduo athletic center in the opinion of the planning board, was.

E

Going to cast a shadow across the the road to the nearby butters and make their lives miserable and.

E

The the planning board bases decision on that, among other things,.

E

Notwithstanding the fact that- and I I'm amazed- you can get an expert on anything.

E

Dartmouth was able to get an expert on shadows. You know they had a shadow thing that showed no.

E

There's not going to be a shadow on these houses and the ultimate the planning board members said.

E

We don't care we're going to say no and I think the key thing for the court of concern.

E

And I think it's it's one, that is where planning boards can can be challenged in making decisions.

E

The the the the court observed that the staff had demonstrated that the the project had met.

E

All of the checkbooks requirements comply with all the zoning requirements.

E

But nevertheless, this the planning board said no we're not going to approve it and.

E

What the court said um that the planning board ultimately was relying on its personal feelings.

E

um And they had engaged in ad hoc decision making. That was out of harmony with the town and.

E

Its environs, and so when the plenty board did that it deviated from the duty the board had to.

E

Stick to the rules and regulations and not to as the court said, um you know, rely upon.

E

Lay opinions and anecdotes so the but the other thing which is true, which the court also says.

E

In this case, and it can be bedeviling, the court said we're not saying simply because a project.

E

Satisfies all the requirements of the regulations that that a planning board must approve.

E

But we are saying, if you're going to say no, you have to have a sound basis for doing so. um You.

E

Have to have something within your regulations or some other basis to say. No, um so you know I.

E

Think for you, as a member of the planning board, if staff said hey, this project complies with all the.

E

Requirements, we don't see any issues. Why shouldn't be approved, you better have a really sound reason.

E

Why it should be denied? Because if, if you are in that area, like the dartmouth hanover case.

E

It may turn out that the court would a court. A review in court would say, wait a minute. You know.

E

These are based on personal feelings and that's ad hoc decision making and that's not appropriate.

E

um Next slide, uh not a terribly big surprise, you have to write decisions. The statutes require you.

E

Have to have a written decision, the decision has to either to be approved, approve with conditions.

E

Or disapprove by the way- and this is something certainly is an issue for smaller communities.

E

There are many communities, I think if we just say no we're not going to approve. That's enough. You.

E

Can never just say no, you have to say no we're not approving this project for the following reasons.

E

Because the applicant has a right to know what are the reasons why I've been denied and how I can use.

E

What you've said why I've been denied to come back with a revised plan, so just saying no doesn't work.

E

You've got to say no, this is the reason why we're not getting an approval and, by the way, a tie vote.

E

Is not a decision? If you have a thai vote, you guys got to stop and try again and get a vote. That is.

E

Either approval or denial based upon a decision. That's no longer a tie, uh mr, I think in portsmouth.

B

We have rules that address thai votes that I don't know. I can't speak knowledgeably, but I know that.

B

We have had thai votes and it it was a standing decision and it either went forward or it didn't.

E

Well, uh a tie vote is not a decision because it it you know either from the basic meeting protocols.

E

uh Or I would assume your rules are procedure. A thai vote is nothing. It is either either approval.

E

Or denial, um so so it's like a jury. You have, somebody has to change their mind. Yeah you I mean.

E

I've told this to a number of boards before, if you have a thai vote, you've got to stop and figure out.

E

A vote that can get a majority of the members to either approve or deny that's just a requirement.

E

And tie votes is that's no decision. Can anyone on the board back me up on this? I I never had in my.

D

Nine years on the planning board, I've never had a thai vote, so I can't speak from experience.

D

I was under the impression it's a no if it's a thai vote, but um I don't know where I get on the.

E

Phone, maybe our city attorney knows off the top of his head. uh I would probably turn to robert.

E

Rules of order, but I think there's something in robert's rules on that, but a tie vote. The motion.

A

Fails but I agree with uh attorney buckley I in my experience it doesn't work. You have to vote.

A

To approve deny or approve the conditions, those are your three options and a taivo doesn't do it.

A

Now the zba has different rules about some of their appeal processes that.

A

When an appeal can happen based on a tie, but that's not us, so I'm not okay, so there's never.

B

Been a three three or four four vote on the planning board, not in my time. Okay, maybe I'm.

B

Thinking zoning board then well the zoning board the zoning board if the zoning board is going to.

E

Take action it has to have three concurrent votes. uh That's required, and zoning boards are always.

E

Five members, so you would always have the majority of the members voting either approval or denial.

E

Next slide, please uh familiar set of uh things in describing how you grant approvals.

E

First thing I would say, and I've seen plain boards think this is true.

E

If an applicant makes a representation which is recorded in the minutes,.

E

It's not binding unless it's made into a condition of approval. You know I can't tell.

E

You how many times I've had a planning board say. Well, they said they were going to put in a tot lot.

E

And it's not there and I said: did you put it in the condition of approval? No, it's in the.

E

Minutes- and I said that doesn't count- don't rely on the minutes, get it in as a condition.

E

And the conditions have to relate to the relevant criteria. You can have standard conditions. I the.

E

Towns that I've represented um there's we had developed a template of standard set of conditions.

E

So there was a standard set of conditions and then there were customized conditions for that.

E

Particular project and those were always together in one notice of decision. You can have conditions.

E

Precedent that is we're not going to sign the plan until you get these supplemental pieces.

E

Of information for us and that's a condition precedent conditioned subsequent. You know that.

E

This project is approved, but you can't have garbage pick up after 11 o'clock at night or.

E

Whatever the case may be, and then you could also have a circumstance where you've approved it.

E

Subject to some kind of important professional input, we want to have a final engineering report.

E

On your change, driveway location, that's that cannot be approved in final form until you.

E

Have what we call a scholar hearing? You have to have a subsequent hearing because to.

E

Rely upon that report just requires discretionary judgment and required to have a public hearing to.

E

Go over that supplemental engineering report in order to reach a sound decision next slide.

E

I mentioned grandfather rights because they're important, because we have a statute 674-39, that.

E

Says if you get approval and begin active, substantial development within 24 months.

E

And substantially complete improvements within five years, you're absolutely vested from any.

E

Changes in zoning and subdivision regulations and it's investing and it kind of ties back to that.

E

Acceptance fest anything I mentioned before: you're you're perfect. They can't change the.

E

Rules on your plan because you've made substantial improvements, but one of the things you can do as.

E

Part of your approval is say: this is the quantum of work you must do within the first 24 months.

E

Now it has to be a reasonable amount of work, but you've got to indicate it in the in the approval.

E

That, if you don't put it in the approval, this is how much work you must do within first 24 months.

E

Then any amount of work is going to be sufficient. So it's important to express that in the notice.

E

Of decision and it's also important to express what would be considered substantial completion.

E

Of improvements yeah something off 50 of the work buildings probably is somewhere within that range.

E

Would be considered considered substantial completion improvements, um one interesting.

E

Thing about the statute is 674.39. If you had changed your impact fees, a change in impact.

E

Fees is not subject to the grandfathering statute. That was actually I'm proud to say, a participant.

E

In getting that amendment in there, because we recognize there could be a need to change impact.

E

The amounts could certainly be due to inflation, certainly more so today than ever, um and then.

E

Finally, uh next slide: I've got two slides here about uh appeals, so if people are agreed by your.

E

Decision they can appeal the superior court, but now they can appeal to the housing appeals board.

E

But the the question that would have to be appealed has to deal with questions of housing.

E

And housing development if they want to go to the housing appeals board, sort of sort of like.

E

Those who are familiar with the abatement appeal process uh you can go either to superior court or.

E

The board of tax and land appeals same thing. Here you can go to superior court to appeal the denial.

E

Of the site plan or appeal the conditions or you can go to the housing appeals board if it involves.

E

Questions of housing and housing development and I think there has been some concern that the housing.

E

Appeals board kind of went a little far afield. There was an important decision that overturned a.

E

Layout decision by the select board in pembroke, so it wasn't actually a decision about housing at all.

E

It was just whether or not the select board would agree to change a class.

E

A sixth road to class five and it really wasn't a land use decision, but the housing appeal board.

E

Took the case and reversed the decision of the pembroke select board, there is a proposal to.

E

Rein in the degree of authority, the housing appeals board to limit their authority to just.

E

Decisions by the zoning board of adjustment of the planning board, not selectmen, not historic, district.

E

Commission etc, we'll see where that goes, but be aware, and those decisions come really quickly. They.

E

They are really they they churn through and and they their their uh website now has a pretty.

E

Good inventory of the cases and the decisions and they're instructive on a number of different areas.

E

And we're trying to keep up on those decisions, so can we record them in our court update summaries.

E

And then, ultimately, if they don't go to the housing appeals board next slide, uh they can go to.

E

Superior court um now I I everyone- has different experiences with with spirit court I'll tell.

E

You my experience is, I always keep tell planning boards this. You have no burden of proof, you don't.

E

Have to prove what you did was correct. The other side has to prove that what you did was illegal.

E

Or unreasonable so the most important thing for a planning board in front of the superior court.

E

Is to get as much information as much paper all the emails every report, every.

E

Shred of evidence you could possibly get because the board only has to show.

E

There was evidence in the record that supports the board's decision and there's no trial. It's.

E

Just on the record in front of a superior court judge- and uh you know I don't know- um they're all.

E

Going to be mostly in rockingham county, so it may somewhat depend upon the judges in rockham county.

E

At that particular time, but frankly I I always had a pretty good track record in winning these.

E

Appeals, but you know it depends on the case. It depends on the circumstances, um and so that's.

E

Superior court appeal and with that I'm at the end and happy to answer questions you might have above.

E

And beyond either the materials I've discussed already or any other issues that is on your mind,.

A

A

I guess it was a very comprehensive presentation. Thank you. Thank you very much. Actually, oh wait.

B

Wait I was waiting buddy I'll just go. I have a question about developments of regional impact.

B

And you probably know that we have peas development authority, it's part of portsmouth and.

B

There's a airport expansion contemplated here, but I'm not going to talk about that. But I was just curious.

B

It's a unique setup over there as far as the pda, and the best ways explained to me is that it's.

B

Not state property, it's not local property. It's pda property! It's a separate entity with its own.

B

For lack of a better word and that.

B

Maybe best is a native american reservation, it's kind of out there, but they run their own show and.

B

um To that end, is it true that portsmouth planning or zoning has no say on what goes out at the pda.

E

Well, what I can tell you is that rsa 674-54 incorporates the zoning and regulatory immunity.

E

Enjoined enjoyed by governmental uses so generally, it is recognized, and this is derived from case law.

E

That a town is not subject to its own zoning ordinance. The county is not subject to the zoning.

E

Ordinance of a town, etc, etc. A school district is not subject to the town. Summing ordinance.

E

Those things are true, and so from that case law this, the legislature put in rsa 674-54.

E

Now I can't tell you, because I I've not researched the issue, does that zoning and.

E

Land use regulatory immunity is that enjoyed by an entity created by the state of new hampshire.

E

Called peace, development authority- I don't know off the top of my head. The answer is yes,.

B

Okay, I've been a tenant out there for 27 years. I've been getting these calls every day since then,.

B

Pease development authority's zoning, ordinance site plan regulations and subdivision regulations.

B

Originally adopted december 20th 1991, most recently revised october 15 2020.. They have.

B

Their own inspection and engineering department it's irritating, but they do actually come before.

D

Planning board, but the only thing we're allowed to do is review the project and send recommendations.

D

And you see and that's consistent with rsa 674-54, which is the governmental use.

E

Land uses so typically, you know the like the school district would as a courtesy.

E

They're required to tell you they're, going to enlarge the high school.

E

And the changes but they're not required and you can provide them comments but.

E

The comments aren't binding and I think I I think p's would fall into that category, but.

E

They're not listed in the statute, but it does say that the the state enjoys that immunity.

E

From local land use regulation and I think pease would be deemed armed the state of new hampshire.

E

But I've not really studied it, so I'm leery to pontificate that that's true, but I think it's true.

E

But your point, jim, I think, is very interesting because I think it would be incumbent upon.

B

The ps development authority engineering department to recognize it as a regional, because.

B

Half of the base is in newington, you've got. You got rideports with newington.

B

Dover, durham involved in that noise issue right. Yes, so it's regional! That's true! The peas has to.

D

Actually state that right they have to out loud. I happen to sit on the regional impact committee.

D

For the rocking and planning commission, in fact, I have a meeting at 9 a.m tomorrow for a project in.

D

Brentwood, so they, the actual body, has to just like we as a planning board, would have to declare it a.

D

Regional impact p's development authority would have to make that request. We could obviously.

D

Suggest it to them and make a recommendation, but they don't have to take it. Just like our approvals.

E

Right and I you know, I can't speak to- does peas, have this zoning and regulatory authority and.

E

Are they subject to the dri statute? I just don't know uh it could be true, um but it sounds like.

E

What has been happening is ps, comes to your board and say this is what we're planning to do.

E

What are your thoughts and then they listen to you and then they may or may not incorporate your.

E

Concerns, but they may not be required to there's a separate statute. It's 12g that applies to peas,.

A

And uh I asked attorney buckley about this and I I don't want to drag him into this because it's not.

A

You know he didn't research it and I don't think it's fair to ask him too much about that tonight.

A

Anything else about what he did present and we can talk about p's. You know at a later time or after.

A

He's done, I don't want to keep him uh chairman. I was just going to make one comment that.

C

And uh this this pertains to when mcintyre was kind of a lot of the different listening groups.

C

And everything else were all getting involved and everything else, but um attorney sullivan, sent out.

C

An email to everybody on the on the board, just stating um you know this is the role of the board.

B

You know, and these groups just trying to direct us or not direct us, but give us guidance as to.

C

Participating or not participating in these groups and so on and so forth, and how that could affect.

C

um Anything that comes before us down the road, so I just want to say thank you attorney sullivan.

C

That was helpful in that time frame. So I appreciate it.

A

Okay, so you know what that was about.

E

uh Sort of but not really, okay, yeah, sorry! I was just just a statement. It was just okay.

D

Thank you very much. Thank you very much. Thank you appreciate. It appreciate it all right, very helpful.

A

Does the board have any board conversations? I just want to go to the bathroom.

D

I just want to go to the bathroom.

A

Do you want a break, or are we done for the evening? I'm done with something.

A

Else to talk about two hours, I think we're good yeah. I mean there's a little bit of time, but.

A

I'm ready to wrap it up if we're if whatever the board wants. So if somebody wants to make a motion.

A

To adjourn, we can adjourn, someone wants a break. I make a motion with you adjourn I'll. Second, that.

A

Any discussion.

A

All those in favor aye we are adjourned. Thank you.