Harrisville Planning Board
Wednesday, May 11, 2022
The Harrisville Planning Board held a regularly scheduled meeting on Wednesday, May 11, 2022 at town offices and via zoom.
Members present: Ryan Stone Co-Chair, Lisa Anderson Co-Chair, Courtney Cox, Andrea Hodson Select Board Representative, Jon Miner, Don Scott, Pete Thayer, Kate Neary, Ned Hulbert
Members of the public: Scott Stone, Cynthia Stone, Nikole Huard, Jesse Huard, Dave O’Neil, Ranae O’Neil, Akhil Garland, Howard Clark, Jr., Pegg Monahan Select Board Member, Tom Andrews, Mary Marchese, Chick Colony, Beate Becker, Pam Thayer, Lee Garland, Donna Stone, Doug Byam, Andrew Scanlan, Harry Wolhandler, Meagan Killilea, Matthew (last name to be confirmed)
The co-chairs opened the meeting at 7:20 pm.
Attendance, Roles and Voting members
The board chairs noted that the voting members for matters not related to the Stone Subdivision application include Ryan Stone, Lisa Anderson, Courtney Cox, Andrea Hodson and Ned Hulbert. For business related to the Stone Subdivision application, the voting members would be Lisa Anderson, Courtney Cox, Andrea Hodson, Ned Hulbert and an alternate to be voted on by the board.
Approval of agenda – Members voted in favor to approve the agenda with the omission of the Transportation Committee update.
Minutes of previous meeting, 4/13/2022 – Members moved and voted in favor to approve the minutes of April 13.
Major Subdivision Application – Scott R. Stone, 64 Silver Road (Map 51 – Lot 34) – Co-Chair Lisa Anderson explained that the process would include the following steps: a summary of the application review; a vote to accept the application as complete; a public hearing, depending on the vote on completeness; and a motion as appropriate.
In addition to Recusal of Co-Chair Ryan Stone, Pete Thayer, an abutter to the applicant, recused himself. Both members removed themselves from the table and sat with the public. Following discussion of the naming of an Alternate to vote, Andrea Hodson moved that, based on his past planning board experience and on his position as reviewer of the application submission, Jon Miner be named as Alternate Voting Member. Courtney Cox seconded. All voted in favor.
Subsequently, Lisa Anderson shared a document summarizing input from Town Counsel on legal questions pertaining to development of property with frontage on Class VI and private roads. Ms. Anderson noted that, according to state statutes, frontage requirements must be met before an application can be deemed complete. PB members questioned the relevance of the input for the application before them. With no agreement on this, Mr. Hulbert then recommended proceeding to discussion of the application review.
Jon Miner explained that he and Courtney Cox reviewed the application. He stated that, in their opinion, based on the submission and review of checklist, they find the application to be complete and that the waivers requested were appropriate to the project.
Mr. Hulbert asked if the application can be accepted given the property’s frontage on a Class VI road? Courtney Cox shared input she received from the NH Municipal Association attorney who was unwilling to provide a specific statute or relevant caselaw on this requirement. Jon Miner pointed to the various classes of road discussed in a Hard Road to Travel and the NH Office of Planning and Development’s position is that development on Class VI roads is left to the jurisdiction of municipalities. Harrisville has a Policy for Issuance of Building Permits on Class VI and Private Roads, authorized by the Select Board in 2015, which requires planning board review and approval, as well as a waiver signed by the applicant and recorded at the Registry of Deeds, releasing the town of liability.
Members then discussed at length the definition of Frontage on page 55 of the Harrisville Zoning Ordinances and the application of the definition to the subdivision application before them. Members disagreed on whether or not the language aligns with RSA 674:41, related to Subdivision Regulations and issuance of building permits. The town’s definition of Frontage in part reads as follows:
Frontage: The length of the lot bordering on a publicly approved road; a Class VI highway or private road, either of which appears on a subdivision plat approved by the planning board; or a body of water.
Board members debated whether Blood Hill Road, a Class VI road, holds the legal status required for a subdivision to be allowed, or for the board to even allow the application to be accepted for review. The RSA under discussion is 674:41, the full text of which is attached.
Members also discussed the purpose of definitions in the town zoning ordinances and whether or not a definition is itself an ordinance. They shared differing interpretations of the definition of frontage, and the meaning of the semi-colon used in the definition. Ms. Cox again referred to the lack of caselaw or specific statutes, but Mr. Hulbert, Andrea Hodson and Lisa Anderson repeated that two different attorneys believe the application does not meet the frontage requirement, and that a variance is required from the Zoning Board prior to acceptance of the application by the Planning Board.
Ned Hulbert asked what risks are involved if the board were to go ahead and hear the application. The PB is tasked with having each lot qualify as a buildable lot, is tasked with ensuring responsible development and, depending on housing density, at some point can be required to take over maintenance of a road. Lisa Anderson added that the board is challenged with agreeing on ordinance and RSA interpretation, and Mr. Hulbert noted the issues rest on the interpretations by legal counsel and the risks for both sides.
Andrea Hodson raised the issue that each lot, if approved, would be allowed an accessory dwelling unit (ADU), potentially resulting in six new dwellings on the road.
Board members briefly discussed the applicant’s waiver requests. Courtney Cox then commented on the completeness review, noting all items, minus those for which waivers were requested, were submitted. The letter of intent, plat reduction and modified abutter list were submitted after initial review but in time for this evening’s discussion.
The board noted that, if the application was determined to be incomplete, the board must supply a written determination with the reasons it deems it incomplete. In response to the question what would prevent the board from accepting the application as complete, Andrea Hodson stated she believes a variance is needed from the ZBA.
Members continued to state differences of opinion on the reading of the statutes and zoning ordinances and discussed the concept of “scattered and premature development” referred to in the state subdivision regulations. Reiterating her and Mr. Miner’s finding, Courtney Cox then moved to accept the Stone Subdivision application as complete. Jon Miner seconded. Members voted 3-2 against with Andrea Hodson, Ned Hulbert and Lisa Anderson opposed due to advice from legal counsel about liability risk to town. The motion did not carry.
Lisa Anderson then moved that the application is not complete due to absence of a variance from the ZBA for frontage on Class VI roads as required on the application. Andrea Hodson seconded. During discussion Jon Miner pointed out that the applicant does have adequate frontage on a Class VI road so the motion is not valid. In a vote on the motion, Ned Hulbert, Andrea Hodson and Lisa Anderson voted in favor. Jon Miner and Courney Cox voted against believing the frontage requirement is met. The vote on the motion was 3-2 in favor.
The Co-Chair noted that the next step, following issuance of the Notice of Decision within 72 hours, is for the applicant to go to the ZBA for a variance for frontage on a Class VI road as required in Item 7a on the application checklist. Then the applicant could return to the PB. Mr. Stone had no questions for the board. The Co-Chair then noted that, since the application did not meet completeness review, the board would not proceed with a public hearing. Abutters would be re-noticed at such time the applicant returned to the PB. In response to the question whether the same members would vote, the Co-Chair noted that can’t be determined ahead of time.
Ryan Stone and Peter Thayer returned to their seats with the board. Members proceeded with their agenda as follows:
Nomination of SB representative to SWRPC
Following confirmation of the SWRPC process for nominating representatives, the Co-Chairs noted that it is the role of the PB to nominate the Select Board representative to the regional planning commission. Ms. Anderson stated that, following the nomination last month of Kate Neary as the PB representative to SWRPC, she moved to nominate Pegg Monahan as Select Board representative to the SWRPC. Ryan Stone seconded. All voted in favor.
Election of PB Officers on PB – The Co-Chairs reminded members of the need to name their officers including Co-Chairs and Board Secretary for the coming year. Andrea Hodson subsequently moved to reappoint Ryan Stone and Lisa Anderson as Co-Chairs, Peter Thayer as Board Secretary, and Ned Hulbert as Alternate, transitioning from full member. All voted in favor.
The meeting adjourned at 9:35 pm.
PLANNING AND ZONING
LOCAL LAND USE PLANNING AND REGULATORY POWERS
Regulation of Subdivision of Land
674:41 Erection of Buildings on Streets; Appeals. –
I. From and after the time when a planning board shall expressly have been granted the authority to approve or disapprove plats by a municipality, as described in RSA 674:35, no building shall be erected on any lot within any part of the municipality nor shall a building permit be issued for the erection of a building unless the street giving access to the lot upon which such building is proposed to be placed:
(a) Shall have been accepted or opened as, or shall otherwise have received the legal status of, a class V or better highway prior to that time; or
(b) Corresponds in its location and lines with:
(1) A street shown on the official map; or
(2) A street on a subdivision plat approved by the planning board; or
(3) A street on a street plat made by and adopted by the planning board; or
(4) A street located and accepted by the local legislative body of the municipality, after submission to the planning board, and, in case of the planning board’s disapproval, by the favorable vote required in RSA 674:40; or
(c) Is a class VI highway, provided that:
(1) The local governing body after review and comment by the planning board has voted to authorize the issuance of building permits for the erection of buildings on said class VI highway or a portion thereof; and
(2) The municipality neither assumes responsibility for maintenance of said class VI highway nor liability for any damages resulting from the use thereof; and
(3) Prior to the issuance of a building permit, the applicant shall produce evidence that notice of the limits of municipal responsibility and liability has been recorded in the county registry of deeds; or
(d) Is a private road, provided that:
(1) The local governing body, after review and comment by the planning board, has voted to authorize the issuance of building permits for the erection of buildings on said private road or portion thereof; and
(2) The municipality neither assumes responsibility for maintenance of said private roads nor liability for any damages resulting from the use thereof; and
(3) Prior to the issuance of a building permit, the applicant shall produce evidence that notice of the limits of municipal responsibility and liability has been recorded in the county registry of deeds for the lot for which the building permit is sought; or
(e) Is an existing street constructed prior to the effective date of this subparagraph and is shown on a subdivision plat that was approved by the local governing body or zoning board of adjustment before the municipality authorized the planning board to approve or disapprove subdivision plats in accordance with RSA 674:35, if one or more buildings have been erected on other lots on the same street.
II. Whenever the enforcement of the provisions of this section would entail practical difficulty or unnecessary hardship, and when the circumstances of the case do not require the building, structure or part thereof to be related to existing or proposed streets, the applicant for such permit may appeal from the decision of the administrative officer having charge of the issuance of permits to the zoning board of adjustment in any municipality which has adopted zoning regulations in accordance with RSA 674, or, in municipalities in which no board of adjustment exists, to the local legislative body, or to a board of appeals, whichever is appropriate, in accordance with RSA 674:14 and 674:15, including the requirement for a public hearing. In a municipality which does not require building permits, direct application may be made to the zoning board of adjustment, or the local legislative body, or the board of appeals for permission to erect the building. In passing on such appeal or application, the board of adjustment, local legislative body, or board of appeals may make any reasonable exception and shall have the power to authorize or issue a permit, subject to such conditions as it may impose, if the issuance of the permit or erection of the building would not tend to distort the official map or increase the difficulty of carrying out the master plan upon which it is based, and if erection of the building or issuance of the permit will not cause hardship to future purchasers or undue financial impact on the municipality. Any such decision made in this connection by a board of adjustment, local legislative body, or by a board of appeals pursuant to this section and RSA 674:14 and 674:15 shall be in writing, together with the reasons for the decision, and shall be subject to review in the manner described in RSA 677.
II-a. Municipalities may except any lot, including island lots for islands served exclusively by boats, from the requirements of paragraphs I and II by an affirmative vote of the local legislative body pursuant to RSA 675, first submitted to the planning board for its approval and:
(a) If approved by the board, approved by a majority of those present and voting at a regular or special meeting of the local legislative body; or
(b) If disapproved by the planning board, approved by not less than 2/3 of those present and voting at a regular or special meeting of the local legislative body.
III. This section shall supersede any less stringent local ordinance, code or regulation, and no existing lot or tract of land shall be exempted from the provisions of this section except in accordance with the procedures expressly set forth in this section. For purposes of paragraph I, “the street giving access to the lot” means a street or way abutting the lot and upon which the lot has frontage. It does not include a street from which the sole access to the lot is via a private easement or right-of-way, unless such easement or right-of-way also meets the criteria set forth in subparagraphs I(a), (b), (c), (d), or (e).
IV. In addition to the requirements for the erection of buildings in paragraph I and notwithstanding the exceptions provided in paragraph II, the planning board for a county in which there are located unincorporated towns or unorganized places shall require every building which is erected on leased land located within an unincorporated town or unorganized place to have a building permit. A building permit shall be required under this paragraph regardless of the proximity of the building to any street or highway. The county shall, by resolution, authorize the planning board to issue building permits under this paragraph.
Source. 1983, 447:1. 1988, 131:2, 3. 1989, 266:20. 1995, 291:10. 1998, 344:6. 2002, 270:1, 5. 2004, 154:1, 2. 2005, 226:1, 2, eff. Sept. 3, 2005.