Working Group Report on Resource Protection Revisions

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Dra Revisions to the Durham Zoning Map A Project to Revise the Town’s Resource Protec on Districts Based on Updated Natural Resources Inventories and Public Input

Prepared by: George Thebarge, Town Planner for the Resource Protec on Joint Working Group:

Planning Board Members: John Talbot, Allan Purinton, Juliet Caplinger Conserva on Commission Members: Jess Costa, Samanatha Cuccaro, Michael Friendly

A. 1. Introduc on & Key Findings ································································ 1

2. Town Research Leading to 2023 Revisions ·········································· 2

3. Past Proposal for 2-Phased Approach ················································· 3

B. New Beginning with Habitat Data ··························································· 5

C. Buildings Restricted by Resource Protec on ··········································· 7

D. Op ons for Removing Exis ng Home Sites ············································· 9

E. Working Group Recommenda ons for 100- Development Buﬀers ····· 10

1. Floodplains Development Buﬀer ······················································ 10

2. Large Wetlands Development Buﬀer ················································ 11

3. Stream Development Buﬀer ····························································· 12

4. Waterfowl/Wading Bird Habitat Development Buﬀer ······················ 13

F. Proposed Resource Protec on District Boundaries ······························· 14 Appendix 1—Individual Property Assessments ········································· 15

PROPOSED ZONING MAP REVISIONS 2025                                            The 2023 Zoning Map revisions also reﬂected Comprehensive
                                                                           Plan recommenda ons to base the boundaries of the Resource Pro-
          Resource Protec on District                                      tec on District on ﬁve addi onal natural resource criteria:

A. INTRODUCTION                                                                 1. 100-Year Floodplains;
                                                                                2. All Areas Subject to Mandatory Shoreland Zoning;
1. 2023 Zoning Map Revisions
                                                                                                                   3. 100-foot Stream Buﬀers;
   In April of 2023, Durham
updated its Zoning Map to                                                                                          4. Wetlands of 10 or More
                                                                 KEY FINDINGS
implement recommenda ons                                                                                           Acres;
of the Town’s Comprehensive
                                     ¨The Zoning Map was updated in 2023 based on comprehensive plan               5. Waterfowl and Wading Bird
                                       recommendations and natural resources data provided by the State.
Plan related to natural re-                                                                                        Habitat; and,
source protec on. This policy        ¨During the public participation process and implementation of the new        6. Areas designated by Begin-
goal was one of three primary          RP boundary, public input indicated significant concern for the accura-
                                       cy of the State data and for impacts of the new zoning on existing struc-   ning with Habitat as Having a Co-
outcomes of the 2018 update            tures.                                                                      Occurrence of Natural Resources
of Durham’s long range plan
                                                                                                                   Ra ng of 6 or Higher.
for future growth and devel-         ¨After a review of Durham’s data, the Maine Department of Inland
                                       Fisheries & Wildlife confirmed that their Co-Occurrence Map was inac-          In addi on to 100-year ﬂood-
opment, along with preserva-
                                       curate and revised it.
 on of rural character and                                                                                         plains, the next four criteria
promo on of agriculture.             ¨The 2023 overhaul of the Resource Protection District also did not           were all previously reﬂected in
                                       consider the full impact of placing existing structures into RP and         the Land Use Ordinance and
   The revisions approved at        whether environmental data supports such restrictions being placed on          Zoning Map based on prior com-
Town Mee ng in 2023 re-             those structures.
                                                                                                                   prehensive plans. The sixth crite-
moved all areas in the Re-
                                  ¨The proposed Zoning Map Revisions will remove areas that were previ-            rion, Co-Occurrence of Natural
source Protec on District           ously placed in RP based on 6+Co-Occurrence of natural resources.              Resources was added with the
that were restricted based on
                                                                                                                   2018 Comprehensive Plan.
outdated ﬂood maps from           ¨The proposal will also provide relief for landowners by establishing an
the 1980s. More recent ﬂood         RP “development buffer” around existing structures (developed areas).           The inclusion of Beginning
studies and maps produced                                                                                        with Habitat’s Co-Occurrence
by the Federal Emergency                                                                                         ra ngs as a basis for Resource
Management Agency greatly reduce the boundaries of mapped are-                Protec on added about 1500 acres to the District and generated
as within the 100-year ﬂoodplains of Durham’s while also expand-              signiﬁcant public concern comments about the new restric ons and
ing the boundary in some areas along the Androscoggin River.                  the accuracy of the data behind the restric ons. This report explores
                                                                              those concerns and provides responses to them.

DRAFT ZONING MAP REVISIONS RP 2025 Page 1

2. Town Research Leading Up to the 2023 Revisions Eﬀorts to update the Zoning Map to implement recommenda ons of the 2018 Comprehensive Plan began in 2019 when the Planning Board hired environmental consultant Michael Morse to review the Land Use Ordinance and DEP regula ons to determine what parts of Durham were required to be in Resource Protec on per State Law. The consultant iden ﬁed limited por ons of the then existent Resource Protec on District along the Androscoggin River and surrounding Runaround Pond. Areas within 250 feet of the river and designated as ﬂoodplain or having steep slopes are required to be in Resource Protec on per State law. Similar areas around Runaround Pond and larger emergent wetlands are also sub- ject to mandatory Resource Protec on. All other por ons of Durham placed in Resource Protec on are there per the home rule authority of the Town. Based on recommenda ons of the Comprehensive Plan, the Town Planner prepared a map showing all areas that met the six criteria of the adopted Comprehensive Plan and should be considered for elevated levels of regulatory protec ons. That map (below) was included in a report presented to the Town’s boards and commissions in August of 2021.

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3. Past Proposal for a 2-Phased Approach to the Zoning Map Update The 2021 report provided to the boards and commissions advocated a two-step process for implemen ng the Comprehensive Plan recom- menda ons for Zoning Map changes (maps below). The ﬁrst phase would have removed all areas then included in Resource Protec on based on inaccurate data. The second phase would add new areas to the Resource Protec on District a er thorough review of the data and working with aﬀected landowners to explore the ramiﬁca ons of the new restric ons and ﬂexible op ons for implemen ng them while s ll following the Com- prehensive Plan recommenda ons. This proposal was put before voters in April of 2022 and was rejected in favor of an update that combined placement of new land into Resource Protec on based on the natural resources criteria at the same me as land was removed per more accurate

MAP 1-A

DRAFT ZONING MAP REVISIONS RP 2025 Page 3

ﬂoodplain data. That proposal was subsequently accepted by voters in 2023, resul ng in the current boundaries of the Resource Protec on Dis- trict, including areas rated by the Beginning with Habitat program as having a co-occurrence ra ng of natural resources or 6 or more (map below). An extensive public par cipa on process was conducted prior the Zoning Map amendments, but no research was done to verify the accuracy of the State data, and no considera on was given to alterna ves men oned in the Comprehensive Plan (e.g., mandatory clustering). A careful review of the Beginning with Habitat data did happen a er the fact when aﬀected landowners pe oned the Maine Department of Inland Fisheries and Wildlife to review and verify the basis for their ra ngs of co-occurrence of natural resources in Durham.

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B. NEW BEGINNING WITH HABITAT DATA

In April of 2024 Beginning with Habitat provided Durham with a customized analysis showing all areas in Town that have at least 6 points of co -occurrence value based on mul ple natural resources. That analysis indicates that the only loca ons in Durham that achieve that threshold are located along streams that are already in Resource Protec on per stream buﬀer requirements (in red circles in map below).

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Based on this new Beginning with Habitat data, the boundary of the Resource Protec on District should be revised to reﬂect that new State data (map below).

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C. BUILDING EXPANSIONS RESTRICTED BY RESOURCE PROTECTION

In addi on to the public concerns for the accuracy of some of the State data, mul ple property owners objected to the placement of exis ng home sites in Resource Protec on (documented sites on map below). Provisions exist in the Land Use Ordinance for appointed boards to approve expansions of those exis ng structures that have been rendered non-conforming, but there are costs associated with those processes and the provisions authorizing them may not be in compliance with legal requirements for expansions of non-conforming uses and structures. Removal of the Beginning with Habitat Co-occurrence layer will remove 18 buildings from Resource Protec on, but there are 34 buildings on other proper es that will remain restricted by other Resource Protec on criteria. Addi onally, there is no clearly documented public interest in placing Resource Protec on restric ons on those home sites. The Beginning with Habitat program acknowledges that previously developed areas have lost their pre -exis ng habitat values and can be excluded from municipal regulatory restric ons. State biologists recommend focusing on unfragemented habi- tat blocks and the connec ons between them (see map below). Therefore, there is no credible scien ﬁc basis for placing exis ng structures into Resource Protec on and imposing a regulatory burden on those proper es not required of other property owners. The joint working group of Planning Board and Conserva on Commission members started with this comprehensive plan data as a star ng place for discussions on how to provide needed relief to property owners whose buildings are restricted from expansion by the Resource Protec on District.

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D. OPTIONS FOR REMOVING EXISTING HOME SITES FROM RESOURCE PROTECTION (Op ons 1, 2, & 3) Op on 1— All Land within Development Buﬀers. The adopted Comprehensive Plan indicates that revisions of the Resource Protec on District should be based on the Beginning with Habitat data and recommenda ons. The most comprehensive approach to pulling previously developed areas out Resource Protec on would be to follow the criteria used by biologists at Inland Fisheries and Wildlife. That analysis indicated a “development buﬀer” around exis ng roads and buildings of between 250 and 500 feet based on development intensity. Op on 1 would pull any area designated by Beginning with Habitat as a development buﬀer out of the Resource Protec on District.

Op on 2 — 250 Foot Development Buﬀer Around Exis ng Structures. Op on 2 would take a more conserva ve approach to removing land from the recently revised Resource Protec on District, focusing on areas with exis ng buildings as opposed to removal of all land along road corridors. One reason to retain areas along roads that lack exis ng buildings in Resource Protec on is that those areas typically provide wildlife travel cross- ings of roads and are iden ﬁed and priori zed by the Beginning with Habitat analysis, providing a par al scien ﬁc basis for development re- stric ons in those loca ons. Staﬀ at the Beginning with Habitat program have indicated interest in doing more research on the iden ﬁed road crossing loca ons, such as documen ng actual wildlife usage. In addi on to revising the Zoning Map to show the approximate loca on of the Dis- trict boundary, text indica ng the speciﬁed distance from exis ng structures would provide clear guidance to the Code Oﬃcer and property own- ers for determining the precise loca on of the Resource Protec on District boundary.

Op on 3 — 100 Foot Development Buﬀer Around Exis ng Structures. Op on 3 would take the most conserva ve approach to removing land from the recently revised Resource Protec on District. This op on would focus on addressing the speciﬁc concern raised by property owners dur- ing the public par cipa on process leading up the 2023 Zoning Map revisions, not being able to expand exis ng buildings without the need for a Planning Board or Board of Appeals process and the associated costs and me delays for home expansion projects. This op on is also the most clear and compelling case for a lack of scien ﬁc basis for increased regulatory scru ny or Resource Protec on restric ons.

Resource Protec on Working Group Recommenda on — Implement the third op on of placing a 100-foot developed area buﬀer around all exis ng structures in the Resource Protec on District. This will provide aﬀected property owners with needed relief from building ex- pansion restric ons while having the least impact on the environmental protec ons recommended in the 2018 Comprehensive Plan and approved by voters in the 2023 Zoning Map revisions. The Working Group further recommended a diﬀeren al treatment between the various criteria by which land was placed in Resource Protec on. For buildings located in ﬂoodplains and large forested wetlands, the Working Group recommends allowing the full 100-foot distance from exis ng buildings subject to Federal and State regula ons for ﬂoodplain management and wetland altera- ons. For buildings located in or adjacent to more sensi ve buﬀers for streams and waterfowl/wading bird habitats, allow expansion of buildings as long as the expansions go no closer to the protected resource. Examples of the four diﬀerent development buﬀer treatments are presented in the following pages. Detailed analyses of all instances where the Zoning Map will be revised and Land Use Ordinance language for these develop- ment buﬀer guidelines will be prepared for public review prior to any Town Mee ng vote on the proposed amendments.

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E. WORKING GROUP RECOMMENDATIONS FOR 100-FT DEVELOPMENT BUFFERS OF EXISTING BUILDINGS

1. FLOODPLAINS DEVELOPMENT BUFFERS: Although ﬂoodplains provide important agricultural and habitat beneﬁts, the primary reason for estab- lishing Resource Protec on is to protect public health, safety, and welfare from catastrophic ﬂooding. Maintaining RP designa on in such areas while making provision for expansions of exis ng buildings within a 100-foot radius of those buildings will provide needed relief to property own- ers without opening large areas for new ﬂoodplain development. Such expansions will be subject to local, State, and Federal ﬂood mi ga on re- quirements.

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2. LARGE WETLAND DEVELOPMENT BUFFERS: Like ﬂoodplains, large forested wetlands serve important environmental and wildlife habitat bene- ﬁts, but they are also areas that are less suitable for development due to high water table condi ons that create drainage problems for road, driveway, and founda on construc on. Maintaining RP designa on in such areas while making provision for expansions of exis ng buildings with- in a 100-foot radius of those buildings will provide needed relief to property owners without opening large areas for new development in large forested wetlands. Such expansions will be subject to State and Federal wetland altera on requirements.

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3. STREAM DEVELOPMENT BUFFERS: Since adop on of the 2002 Comprehensive Plan, Durham has required maintenance of a 100-foot vegeta ve buﬀer along most perennial streams in the community. Stream buﬀers ﬁlter pollutants, reduce water temperature, and provide important wildlife travel corridors. Homes built before the enactment of the stream buﬀer regula ons that are located wholly or par ally within the required buﬀer are legally non-conforming and restricted from expansion per the terms of the Land Use Ordinance. The higher environmental sensi vity of this resource led the Working Group to recommend adjustment of the Resource Protec on boundary to remove the nonconforming status of these structures while maintaining as much of the stream buﬀer as possible. The result is that such buildings will be allowed to expand as long as no fur- ther degrada on of the stream buﬀer occurs.

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4. WATERFOWL/WADING BIRD HABITAT DEVELOPMENT BUFFERS: The forested areas adjacent to emergent wetlands provide important protec- on for nes ng birds from human incursion. There are ﬁve such areas in Durham iden ﬁed by the Maine Department of Inland Fisheries and Wild- life. The Comprehensive Plan, Land Use Ordinance, and Zoning Map established a 250-foot vegeta ve buﬀer around those emergent wetlands. For the few exis ng nonconforming buildings that intrude into a waterfowl/wading bird vegeta ve buﬀer, the Working Group also recommends re- moving the buildings from Resource Protec on to allow expansions that do not cause further degrada on of the vegeta ve buﬀer.

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F. WORKING GROUP RECOMMENDATIONS FOR ZONING MAP & LAND USE ORDINANCE REVISIONS

A er considering public input on the accuracy of State natural resources data, the customized co-occurrence analysis provided by Beginning with Habitat, and the research on exis ng buildings restricted by Resource Protec on by the Town Planner, the Working Group recommends that the current Zoning Map be revised to drop all areas designated Resource Protec on per the single criterion of Land Use Ordinance Sec on 2.3.C.2.f. for co-occurrence of natural resources from the Zoning Map (as indicated below). The Working Group further recommends that speciﬁc adjust- ments be made to the RP boundary to remove exis ng buildings from restric ons against expansion per the guidelines presented in this report and that textual clariﬁca on of the diﬀeren al treatments of development buﬀers around those buildings be added to the Land Use Ordinance.

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Dra Revisions to the Durham Zoning Map Appendix 1 Individual Property Assessments

(Customized Changes to the RP District Boundary)

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1. Map 1 Lot 39C, 79 Old Doe Rd Stream protec on Resource Protec on buﬀering exists on this property that restricts the building from expanding without Board approvals. The Resource Protec on District boundary will be revised to remove the building, allowing expansions that go no closer to the protected resource. Such expansions will be allowed without review by a regula- tory Board.