Planning Board Informational Workshop ~ October 12, 2022

2022-10-12 · Planning Board · 1:29:50 · watch on YouTube →

An informational workshop of the Durham Planning Board, held to explain two ordinance changes the board intends to bring to the April town meeting: how the town will respond to the new state affordable housing law, and a scaled-back rewrite of the land use ordinance's backlot and private road language. The chair, John Talbot, said at the start that four members were present for a quorum and that no vote or decision would be taken. George, the town planner, presented what Durham's ordinance allows now, what the new state law requires, and three options for responding: follow the comprehensive plan, insert the state law's language unchanged, or increase lot size requirements to offset the extra units. Board members and residents spent most of the evening on whether the additional units must be accessory apartments or could be standalone houses, and on whether setbacks and septic design would limit the effect in practice. On roads, the planner described returning to the pre-April arrangement for single backlots, moving the multiple-lot provisions into another section, and adding a statement that acceptance of any road must go to town meeting. The board agreed to put out a town survey and to bring the driveway width question to the fire chief.

No written minutes could be matched to this meeting. The transcript records that the speaker changed but never who was speaking, so any name attached to a statement below is inferred from context and is marked (?).

What was discussed

1. 0:03
   Opening and scope of the workshop

   John Talbot (?) introduced himself as chair, said four members were present so there was a quorum, and named the two topics: affordable housing and changes to the roads language in the land use ordinance. He said there would be no vote and no decision, that the session was informational, that it was being filmed and would go on the town website, and that the term affordable housing is a misnomer; the law does not allow twelve-storey apartment buildings.

2. 0:03
   Town planner introduces the new state housing law

   George, the town planner, said the legislature passed the law in April and the governor signed it, requiring every municipality in Maine to adjust its zoning. His material came from the Department of Economic and Community Development, which has been assigned responsibility for writing implementing rules, and from Durham's comprehensive plan. He used the town-owned parcel on Swamp Road and the Ruby Lane subdivision to show the scale of a two-acre lot, roughly 300 feet by 300 feet.

3. 5:58
   What Durham's ordinance allows now

   A single family dwelling requires a minimum of two acres and a duplex two and a half. A single family may add one accessory apartment, in an addition, over a garage or barn, or inside the house, limited to half the floor area of the main dwelling; either way the limit is two units. George (?) said Durham is already partly in compliance because many towns do not allow duplexes or make accessory apartments easy.

4. 5:58
   What the new law requires

   On a lot with one existing dwelling unit the town must allow two more, for a total of three. On a vacant lot it must allow two units, and the wording does not make clear whether those two must be attached as a duplex or may be two standalone single-family dwellings.

5. 5:58
   State rulemaking and the July deadline

   The Department of Economic and Community Development has to consult another state department and, as George (?) read the citation, get regulatory rules approved by the legislature, so final rules may not arrive until after April. Municipalities are not required to implement until the first of July, and if the town does nothing the state law applies automatically.

6. 11:05
   Durham has no designated growth area

   Because the Southwest Bend growth district was removed in the last update to the comprehensive plan, the parts of the law calling for three or four units in designated growth areas do not apply to Durham. The town is left with two units on a vacant lot and three on a lot with an existing home.

7. 11:05
   Comprehensive plan housing recommendations

   The adopted plan recommends considering three- and four-unit multi-family housing in the rural district with design standards to keep them compatible with typical Durham housing, exploring options for tiny homes, and amending the ordinance to allow a duplex on a two-acre lot unless there is an objective basis such as aquifer protection. George (?) said a separate state law already requires towns to allow tiny homes as either an accessory unit or a single family dwelling, and the code officer is already following it.

8. 11:05
   Three options set out

   Option one follows the comprehensive plan and is the least restrictive, bringing the duplex minimum down to two acres and allowing accessory units. Option two inserts the state law's language and changes nothing else. Option three increases restrictions to counterbalance the extra units the state requires.

9. 16:27
   Option three, and the exemption for private covenants

   Under option three a duplex could be required to have four acres. In answer to a question about whether some properties would not have room for the septic field, George (?) said site restrictions such as a failed soil test still apply, and that the law specifically exempts subdivisions where the developer has put private covenants on the lots. He added a fourth option: take one of the three and modify it.

10. 16:27
    The statute text and accessory unit protections

    The slide showed that a municipality shall allow structures with up to two dwelling units on a lot with no existing dwelling unit; shall allow on a lot with one existing dwelling unit the addition of up to two more, one within or attached to the existing structure and one detached or one of each; and may allow more than that. Density calculations, dimensional requirements and extra parking requirements cannot be applied to accessory apartments.

11. 21:40
    Attached, detached, and tiny homes

    Board members, following a point made by Tyler, asked whether the additional units must be accessory apartments or could be standalone single-family homes or tiny homes. George (?) said the town attorney has advised the code officer that a tiny home must be allowed as either an accessory unit or a standalone single family, but that the rest is unsettled and the state's own flow chart points toward two units if attached. He gave an example of residents who wanted to build a full house for a parent next to their own and were told no because the accessory apartment rule limits it to half the floor area.

12. 26:50
    Code officer's position and the statute as written

    The code enforcement officer said his oath requires him to uphold state law, so if the wording stands he cannot refuse what it allows, whatever the town ordinance says. A member who said he had a background in law read from what he referred to as Maine Revised Statutes 4364-A and asked why anything was still uncertain when the law is written and signed; George answered that the department may adopt rules narrowing it, and those rules would go through the Attorney General and the legislature.

13. 26:50
    Schools and the housing shortage

    A member, Jane (?), asked whether anyone at the state level had considered what the law would do to the school system. George (?) said there is a real shortage of housing in Maine and in much of the country, and that the legislature tried to fix a problem but may not have foreseen the consequences.

14. 32:48
    Setbacks and septic rules are unaffected

    Members confirmed the new law does not override the town's setbacks or the state septic rules, and that the first thing looked for is a septic design. The state minimum lot size for a septic design was given as 20,000 square feet. On two-acre lots, members said fitting another home is far less of a constraint than in towns with half-acre lots.

15. 38:22
    Order in which units are built

    A resident asked whether an accessory unit could be built over an existing garage on a vacant lot before the main dwelling, and whether converting a garage into a small dwelling would then let a much larger duplex be built alongside. The answer was that what matters is the end result complying, and that the commitment could be written into the building permit conditions. Under option one the accessory units would be limited to half the floor area of the main dwelling, which would constrain that sequence.

16. 38:22
    How binding the comprehensive plan is

    Asked why have a comprehensive plan if it is not followed, George (?) said it is a long-range plan covering about ten years, next due for update around 2028, and that under Maine law land use ordinances adopted must be consistent with it. He cited a Scarborough case from the early 2000s in which the Maine Supreme Court held a town could not go in the opposite direction of its plan, adding that enforcing that took a lawsuit and a court process.

17. 43:46
    Whether to be more restrictive than the state

    A member said the board has generally avoided being more restrictive than the state to avoid conflict, and asked what pushback option three would draw. George (?) said the law does allow a town to require land area per unit, so three full-size units could be made to require six acres where two are required now, which runs against what the state appears to intend but is permitted; he noted the town might then have to grandfather some existing properties.

18. 43:46
    Access agreements and tax base

    A member recalled that when a second dwelling unit was put on a property the ordinance required a defined roadway, off-street parking and a written agreement between the parties covering plowing and maintenance, whether or not they were family. The tax treatment of added units was raised as a question for the select board and for the assessor, Donna Hayes.

19. 49:09
    How (?) added units would be valued

    George (?) said the assessor looks at the money put into the improvements and at what comparable properties have sold for, and that the added value would be less than a lot split. He also said the town cannot mandate valuation, which is set by state law.

20. 49:09
    Physical limits on three units

    Members argued that setbacks, septic design, leach fields, well distances and distances from other structures would in practice prevent three single-family homes on a two-acre lot, and that anything built close enough would end up being connected as a duplex. A septic system is sized by number of bedrooms; above five bedrooms it needs another tank and a larger leach field, though an existing system can sometimes be expanded. They also noted the town can allow more than the state requires but not less.

21. 54:33
    Tiny homes and later lot splits

    A resident asked what happens if a tiny home is put on a two-acre lot and the land is later split or sold: whether the tiny home becomes the single family dwelling or an accessory. The answer was that whatever rules the town adopts would apply to the new parcel, and the code officer would have to compare the floor areas.

22. 54:33
    Private subdivision covenants stand

    The law makes a specific exemption so that it does not preempt private covenants in subdivisions; a covenant limiting lots to one single family dwelling is not made void by the new law. Members mentioned covenants and building envelopes in the deeds at Millbrook and Cedar Pond Road, and one said he would check whether Hunter Hill is covered.

23. 54:33
    Process from here

    The chair said the board would spend the next couple of months drafting an article building on the evening's input, and that it then goes to the selectmen, with monthly discussion until it is settled. Several questions raised during the evening he described as being put off to a future meeting.

24. 1:00:03
    Town survey and the three basic directions

    A survey will be put online to gather town input. George (?) summarised the choice as making it less restrictive to expand housing, more restrictive to limit growth, or neutral by taking exactly what the state says.

25. 1:00:03
    Lot size arithmetic and grandfathered lots

    A resident asked whether the town uses builder's acres or true acres. A true acre was given as 43,560 square feet and a builder's acre as 40,000; Durham's requirement was described as 90,000 square feet for a single family and 120,000 for a duplex. Cluster subdivisions that set aside reserve land have smaller lots, and lots created under the former Southwest Bend growth district (the road name is garbled in the recording, near Royalsborough Road) are grandfathered from the two-acre requirement.

26. 1:00:03
    What happens if the article is voted down

    A resident asked what happens if the town votes down whatever the board brings forward. The answer was that the town then defaults to the state law, which is effectively option two, and that the point of the exercise is for the town to have its own say rather than have the state's version imposed.

27. 1:05:39
    Duplex minimum versus room for accessory units

    A member said dropping the duplex minimum to two acres, as the comprehensive plan recommends, would squeeze setbacks and septic room for the accessory unit the state law allows, and suggested a hybrid that keeps two and a half acres. Another member said the town growth concerns raised repeatedly during the election are themselves an objective basis for not following that recommendation.

28. 1:05:39
    How the survey will be used

    George (?) said the comprehensive plan survey was given considerable weight and described its results, though the figures were quoted inconsistently in the recording: roughly a quarter wanted growth concentrated in a designated area, roughly a quarter wanted town controls dropped to state minimums of half an acre, each described a moment later as under twenty percent, and the majority (given as both fifty-five and sixty percent) favoured two-acre lots. He said a survey gives a sense of direction rather than precise results, and that people being all over the place is itself a result.

29. 1:05:39
    Timeline to the April town meeting

    The board expects to settle on one of the three options between now and mid-December, take it to the select board for endorsement, then draft the language. A formal public hearing is targeted for late January or the first part of February, with a final draft article needed by the end of February for publication ahead of the town meeting on the first Saturday of April.

30. 1:10:47
    Roads: background to the rewrite

    The chair said an article on roads at the last town meeting was defeated and changed on the floor, so the board sat down to identify the parts that would not be controversial. The evening's discussion was to gather input on those before drafting a new article.

31. 1:10:47
    Current backlot and road standards

    Under Section 5.7 backlots can be established on a 50-foot right-of-way; a driveway serving a single backlot must be 20 feet wide and built to street construction standards except shoulders and paving, approved by the code officer. Two or more backlots require an engineered road plan meeting private street requirements except paving, approved by the road commissioner and code officer, with the maintenance agreement going to the planning board. The separate provision for roads deals only with the maintenance agreement and sets no construction standards, which George (?) said causes confusion about who approves what.

32. 1:10:47
    Proposed changes to the road language

    The proposal is to return to where things stood last April: a 50-foot right-of-way limited to one single backlot, with a 16-foot rather than 20-foot driveway, approved by the fire chief as well as the code officer, who would inspect that his equipment can get in. The multiple-lot provisions would move into section 5.23 with the engineered plan requirement, leaving the planning board reviewing only the maintenance agreement. The two problems at the last town meeting were whether these non-subdivision roads should be gravel or paved, and confusion over whether the language would let such roads be accepted by the town.

33. 1:16:07
    The housing law's effect on the backlot proposal

    Last spring's version would have limited a single backlot to one single-family dwelling. That language has been taken out because the new state law may require two units on the same lot, which means the driveway has to be able to serve them and 911 addressing has to cover more than one house.

34. 1:16:07
    Driveway width debate

    Members discussed 16 versus 20 feet, noting a standard travel lane is 10 to 12 feet so two passenger vehicles can pass on 16 feet, and that a 24-foot road to serve one house is a large expense. One suggestion was 16 feet for a single dwelling and a wider road if a second unit is added. Several said they would defer to the fire chief, who had already indicated he was comfortable with a single family case.

35. 1:21:35
    Whether the state law reaches backlots

    Members established that backlot is a municipal term and the state law refers only to lots, so the new unit allowances would apply to a backlot in the same way. That raised the question of how many units could accumulate on a front lot and a backlot together, and whether the driveway width should scale with the number of units.

36. 1:21:35
    Resident's setback and septic example

    A resident working on a three-acre lot in Durham with a duplex said the building is already within about 95 feet, close to his setbacks, and the septic design is running out of room before an accessory unit is added. The advice from the room was to design a larger septic system than currently needed, since a garage with an unfinished room above and no septic capacity will leave the owner stuck.

37. 1:27:05
    Fire chief follow-up and survey wording

    The follow-up with the fire chief would test whether 16 feet is still acceptable once an accessory apartment or a duplex is allowed on a backlot, with a possible rule of 16 feet for one dwelling unit and 20 feet for two or more. Members discussed asking a road question in the survey (for example whether a road serving family members on lots given to their children should be allowed to be gravel or should be paved) and keeping the wording simple enough that it does not raise more questions than it answers.

38. 1:27:05
    Closing and other committees

    The chair asked those present to spread the word, said the material is on the town page and that residents can email the town planner. He noted the Conservation Commission is running a parallel process on resource protection, adding and removing properties, and the historical commission is working on changes to its ordinance.

What was decided

• 0:03
  The chair stated at the outset that there would be no vote and no decision at this session, which was informational only, and that comments taken would feed into drafting the two articles. Nothing was put to a vote at any point in the meeting.outcome unclear
• 1:00:03
  Agreed by consensus to put an online survey out to residents on the housing options, with feedback also accepted by email to the town planner. No vote was taken.outcome unclear
• 1:05:39
  Agreed by consensus on a schedule: the board settles on one of the three options between now and mid-December, seeks the select board's endorsement, holds a formal public hearing in late January or early February, and has a final draft article by the end of February for the town meeting on the first Saturday of April. No vote was taken.outcome unclear
• 1:10:47
  Agreed by consensus that the draft road language will add an explicit statement that acceptance of any road must go to town meeting, on top of the existing statement that the town is not responsible for acceptance. Described as a proposal for the article; no vote was taken.outcome unclear
• 1:27:05
  George (?) said he and the code enforcement officer would follow up with the fire chief on whether a 16-foot backlot driveway remains acceptable once a second dwelling unit is allowed, before the width is written into the article. No vote was taken.outcome unclear

An outcome reads "unclear" where the recording does not state it plainly. The recogniser drops short words, and "the motion does not carry" is one missing word from its opposite.

Worth knowing

• 5:58
  If Durham adopts nothing, the state law takes effect automatically on the first of July, and the town's own article has to be ready for the town meeting on the first Saturday of April: before the state finishes writing its implementing rules.
• 11:05
  Three options are on the table: follow the comprehensive plan and drop the duplex minimum to two acres, insert the state law's language and change nothing else, or raise lot size requirements (a duplex at four acres was the example) to offset the extra units.
• 1:00:03
  An online town survey is being prepared on both the housing options and the road language; residents can also email the town planner, and a formal public hearing on the draft article will follow before town meeting.
• 1:10:47
  The road article at the last town meeting was defeated, on whether these non-subdivision roads should be gravel or paved and on confusion over whether the town could be made to accept them. The rewrite adds an explicit statement that acceptance of any road must go to town meeting.

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