How much power does Planning Board
have? And does Council have authority to rein them in?
By Elizabeth Prata
Gray -- Are cisterns and sprinklers required for new
subdivisions, or not? The Gray Town Council says that
the Planning Board may not require such items of subdivision
applicants unless they are written in the Town's Ordinances.
The Planning Board says they have statutory authority
to require items of safety in extenuating circumstances.
The question the Council asks is, when does an occasional
extenuating circumstance become a pattern and illustrate
abuse of authority? The question the Planning Board
asks is, how can we in good conscience not implement
the recommendations of Department Heads such as the
Fire Chief, particularly when they involve safety?
The debate began two weeks ago, when the Council had
a joint workshop on January 17 with the Planning Board.
Council liaison to the Planning Board Andy Upham had
noticed that the Planning Board members were requiring
that applicants creating subdivisions install cisterns
to be used for fire suppression, or sprinklers in
the homes for fire safety. After investigating further,
Mr. Upham discovered that the Board's actions stemmed
from a memo that the Fire Chief had distributed, indicating
that he supported these items.
The Council had a concern, however, that in requiring
these items of applicants, the Board was creating
legislation from memos, and that in doing so, they
had escaped the normal procedures of amending the
Town's ordinances through public notices and hearings.
At the January 17 meeting, Planning Board member Don
Hutchings said, "We're not supposed to listen
to the Department Heads when they send us a memo?
Is that what you're saying?"
Councilor Welch replied that "A part of the town
government should not be using a memo as if it was
law. Ordinances have a process and public notice.
We should use the process that has been set up. Is
it fair, after getting a memo, to just ignore the
process?" He said that the Planning Board should
not be creating law and requiring applicants to go
by memos.
Councilor Denise Duda said that "I am not arguing
the benefits nor am I arguing the necessity. What
I have seen is that there have been situations where
a developer had to come back a second time after he
had been given the specs on the number of gallons,
and was given a different number of gallons the second
time. This is the problem with using a memo. Memos
change."
The Planning Board is a quasi-judicial Board, with
members having more authority than other Council committees
which are advisory. The Planning Board is guided by
statute, and aside from members being appointed to
the Board and following the charge, their powers are
separate from the Council.
Applicants wanting to appeal a Planning Board decision
must go to court as a next step, not the Council,
said Planning Board member Linda Lockhart.
David Knudsen is on the Zoning Board of Appeals, the
other quasi-judicial board in town. He said that the
ZBA has authority to make judgments outside the ordinances
but the Planning Board does not. "They have to
follow the ordinances," he said.
Ms. Lockhart said, "You can't legislate everything
in an ordinance. I would like to see everything specified,
too. But every proposal has issues and we rely on
Department heads to help resolve them. It is a variable
process and we rely on those whom we pay for their
expertise."
Mr. Welch said that you would expect the ordinances
to cover the ordinary circumstances that come before
them.
Ms. Lockhart replied that, "Planning Board creates
things all the time." She cited one example of
requiring an applicant to install a bus shelter at
the end of a long driveway, another to put in lighting
at the end of a driveway, and cisterns or sprinklers
of still others. She said, "Are these things
in the ordinance? No."
Planner Dick Cahill was asked by Mr. Upham to render
his opinion as to whether the cisterns and sprinklers
are a requirement for site plan approval, or not.
Mr. Cahill replied that "I am not aware that
the Planning Board issuing it for enforcement at this
stage. These elements are not enforceable, they're
advisory."
Mr. Upham asked, "So all those subdivision applicants
that were told they had to put in a cistern didn't
have to, in order to get final approval?
Mr. Cahill said, "They could refuse. They'd have
a good case to challenge it."
The debate continued at the Council meeting Tuesday,
when one of the applicants to the Planning Board came
forward to ask Council for further clarification.
He had been told he had to put in a cistern to get
his plans approved. "Are cisterns voluntary?
I was told they were mandatory," said Neil Maietta.
Chair Gary Foster said that at the January joint meeting
with Planning Board, that Planner Cahill explained
that it is a recommendation, not a requirement.
Mr. Welch disagreed, saying that once it gets onto
the plot plan, it's like a contract and the applicant
was stuck with it.
"So even though it is not a requirement I still
need to install it?" Mr. Maietta asked.
Mr. Upham advised Mr. Maietta, and other applicants,
to return to the Planning Board to have their plans
re-reviewed.
Mr. Foster said that Council needs to re-define the
Planning Board's duties, because "members would
be overstepping their authority by requiring something
that is actually a recommendation. If it is a recommendation,
Planning Board should be clear and state that."
Ms. Lockhart replied that the recourse for aggrieved
applicants is not to return to the Planning Board,
but to go to Superior Court. She also reminded Council
again that the Planning Board has discretionary power
to require things not in the ordinance.
