February 8, 2021 ~ Land Use Ordinance Public Hearing

2021-02-08 · Public Hearing · 1:48:43 · watch on YouTube →

A Planning Board public hearing, held on Zoom, on four sets of land use ordinance amendments due to go to voters in April: home-based businesses, roads and back lots, the Board of Appeals, and a group of miscellaneous changes. The chair, Ann, walked through each set explaining what the current ordinance requires and what would change, then took public comment before moving on. Most of the attendance was for the home-based business changes, which loosen the current rules considerably, and for the back lot change limiting each front lot to a single back lot. No vote was needed on the drafts because the selectmen had already put them on the ballot, but the board did withdraw one proposed change on the spot: a resident's questions showed that fixing March 6, 1976 as the date for nonconforming lots would collide with shoreland zoning, whose requirements date from 1994 and which has its own nonconformity provisions. The other three sets go forward as drafted and the rest of the miscellaneous changes go forward with that one item removed.

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. 0:01
   Opening and how the hearing would run

   After several minutes sorting out Zoom permissions with Tammy and Ruth, Ann welcomed attendees and said the board would take each of the four proposed ordinance changes in turn, explain the intent, take public comment on that item, close it, and move on. She said minor modifications were still possible but it was too late for anything major, that numerous workshops had been held and earlier public input would have been welcome, and that all four will be on the April ballot.

2. 0:01
   Home-based businesses: why the board took it up

   Ann (?) said that since the late 1970s or early 1980s almost any business in Durham has needed either a code officer permit or planning board conditional use approval, and that many businesses in town do not have one, which is outside the board's power to address. Businesses coming for approval were finding the conditional use route far harder than the nature of their business warranted, and the home-based business provisions were confusing and too strict. The board had already split site plan from conditional use with George's help; this is the next step.

3. 5:33
   What the current ordinance requires

   A home-based business must be clearly incidental and subordinate to the residence, must not alter its residential character, and must be carried on wholly within the principal structure, so a business run from a barn or garage does not qualify no matter how minor. Sales are limited to what is crafted or substantially altered on the premises, traffic is capped at 20 trips a day against an average residence's 10, no more than 30 percent of the dwelling's floor area may be used, and no more than one full-time-equivalent employee is allowed. The current ordinance also prohibits any outside activity or storage at all.

4. 5:33
   Examples the board found unworkable

   Ann (?) said a hair salon with more than about five customers a day would exceed the 20-trip limit, and someone packing seeds in a barn where nobody would ever know a business was operating would not qualify because it is not in the dwelling. She recalled a man five or six years ago conducting agricultural trades on a computer in his home who had to come for conditional use approval, which she called a waste of his time and the board's.

5. 11:29
   What the amendments would change

   The size allowance rises from 30 percent of the principal structure to 50 percent of principal and accessory structures, capped at 1,500 square feet; employees go from one to two; daily trips from 20 to 40. Home child or adult daycare for up to 12 is explicitly made a home-based business, and exterior storage becomes permitted where it is fenced and limited to 1,500 square feet, with no more than two commercial vehicles, one small sign, and daycare outdoor activity excluded. Hazardous waste and nuisance standards were carried in from elsewhere in the ordinance, and anyone not meeting the standards is treated as a commercial use and can still apply for conditional use approval.

6. 11:29
   Public comment: trip counts and Airbnb

   Lee Fischer (?) asked whether 40 trips is a hard cap or an average. Ann (?) said nobody will stand outside with a clicker, but a neighbour who sees a hundred cars a day will call the code officer, so a business should not be exceeding 40 on most days. Asked whether an Airbnb falls under home business, she said bed and breakfasts are already allowed and she would regard it as a residential use, but that these changes do not affect it either way.

7. 16:56
   Public comment: existing businesses

   A resident with a family farm on a private road he owns asked whether existing businesses are grandfathered. Ann (?) said agriculture and bed and breakfast are the main categories that need no permit, and that a business already holding a code officer permit or conditional use approval is unaffected; the new standards would only apply to someone coming in for a permit now.

8. 16:56
   Public comment: what triggers a permit

   Christa (?) said that when she started a consulting business from home years ago she was told she needed no permit because she would have no customers at the house. Ann (?) said the land use table in the zoning ordinance determines which uses need approval, that some past code enforcement officers had not understood its effect, and that the table itself is not changing.

9. 22:00
   Objection to the outdoor storage requirement

   Christa, who now runs an HVAC business from home with paperwork and her husband's van and no customers visiting, said the rules ask a business to fence and limit its storage while a neighbour who is not a business can keep their property however they like. She said the changes group very different businesses into one category and ask a lot of businesses that have operated in Durham for a very long time, and argued that businesses should be brought to the table to help work out which kinds need stricter regulation.

10. 22:00
    Fire chief on home daycare

    Chief Moore (?) said the daycare provision allows up to 12 children or adults with nothing in it referencing the state fire marshal, and that egress and fire protection requirements differ between a daycare centre, a group daycare home and a daycare home of six or fewer. He said approving a daycare as a land use without addressing life safety puts the town in a position of liability and could leave the public with the impression that they can bypass the fire marshal's office.

11. 27:10
    How fire and life safety is covered

    Ann (?) said land use approval is separate from and additional to the state adopted fire and building codes, which are separately enforceable, so a daycare would need both. George pointed to nuisance standard number nine, which requires a home-based business to meet all applicable fire and life safety standards including those on flammable and combustible materials, and said the code officer would apply the fire marshal's daycare requirements on review. Chief Moore (?) said that answered his question as long as the board had considered it.

12. 27:10
    Response to the business owners and the process

    Closing comment on this item, Ann (?) responded to Christa that the board had held four or five workshops on this ordinance with business participation that shaped it, and reinforced that nothing changes for currently legal businesses; the aim is to make it easier for new businesses and for ones that are not currently legal to get approval. George (?) confirmed no formal vote is needed because the selectmen have already voted the draft articles onto the ballot and this hearing is a required step, though clarifying language could still be added.

13. 27:10
    Roads and back lots: no new private roads

    The first change would allow no new private roads except in connection with a subdivision. Ann (?) said the old process had an owner bring a road agreement to the board with no clear standard for approving or refusing it, so neither side knew what to do with it, while driveways remain available and are built to a lesser standard.

14. 32:18
    Back lot provisions rewritten

    Section 5.7 is rearranged and clarified: a dwelling and associated accessory structures may be built on a back lot; the lot must have at least 50 feet of frontage on a private, town or state accepted or maintained way, held in fee or by easement and maintained for its entire depth; and the land over which access is created may not count toward the front lot's road frontage. The five acre minimum and the depth requirement stay as they were.

15. 32:18
    One back lot per front lot

    The substantive change is that only one back lot may be created from any front lot, replacing a provision that allowed a second right of way where there was double the road frontage and entrances 600 feet apart. Ann (?) said the board has not found back lots plugged in every 600 feet to be good development, and that subdivisions are more thoughtfully planned with better roads and spacing; the subdivision route remains open.

16. 32:18
    Driveway standard for back lots

    In place of a 20-foot right of way the amendments set a 16-foot driveway consistent with NFPA standards, keeping 12 inches of aggregate subbase, 6 inches of base and appropriate drainage, and adding a required turnaround so fire apparatus do not get stuck. Ann (?) said the standards are there for life safety and so that people living on back lots can receive emergency services.

17. 37:52
    Parking standards moved to site plan review

    The existing parking requirement was informal, amounting to make sure there is adequate parking, which left neighbours and applicants disagreeing with no standard to apply. George (?) said the replacement standards are typical for suburban and rural communities, drawn from sample ordinances based on national traffic engineering studies adjusted for small Maine towns. They were also moved out of the roads appendix, where nobody would look for them, into site plan review; they do not apply to home-based businesses.

18. 37:52
    Road classification rebuilt

    The old standards rested on the growth management program the town repealed, which limited town acceptance of roads to the growth district running roughly from the elementary school down to the river along both sides of Royalsborough Road. The 22-foot public standard becomes local street, the 20-foot private standard becomes minor local street, and a new subcollector category at 24 feet was added for a future subdivision of twenty or thirty lots. George (?) said no community in Maine builds collector or arterial roads any more and Durham is unlikely to.

19. 37:52
    No process for accepting roads

    George (?) noted that since the growth district was repealed neither the selectmen nor the planning board has proposed a process for accepting roads for public maintenance, and current policy appears to be not to accept new roads. All the roads under these standards are therefore intended to be private, designed according to how many lots they serve.

20. 43:28
    Public comment: family subdivisions

    A commenter asked whether the changes rule out what people call a family subdivision. George (?) explained that the statutory exceptions to subdivision review remain, including gifts to relatives, transfers to abutters and the homestead exemption for a principal dwelling of five years, so several lots can still be created. What the amendments change is that the road serving them cannot be created without going through the planning board's subdivision standards, with public notice and a hearing at which neighbours can raise drainage or sight distance concerns.

21. 48:56
    Why the private road process was the problem

    George (?) said the core defect in the current ordinance is that the road commissioner can approve a private road with no public input at all, which was not aligned with the back lot limit and effectively circumvented it. He described the amendments as an intermediate step until the town develops a private way standard with a planning board process, which other towns have and which he had discussed with the board a year or more ago.

22. 48:56
    How the limit applies to exempt lots

    Ann (?) added that of the lots split out under a statutory exemption only one may be a back lot and the rest must meet road frontage, and that the driveway standard can serve only two dwellings. She said the board did that deliberately because back lots given to children get sold on to unrelated people and produce development that was never planned. She confirmed that any lawfully existing road, public or private, and any existing driveway is unaffected by the changes.

23. 54:08
    A landowner objects to the back lot limit

    An elderly resident said that through a succession of code enforcement officers, most recently Paul, he had been told a private road could serve three lots of five acres or more, and that he had cuts already in his property to do exactly that. He said the land is his children's inheritance and he did not want a rule that stops them maximising it. George (?) said the current ordinance let the road commissioner approve private roads with only a maintenance agreement going to the board, so officers interpreted it differently over the years and private roads with three two-acre lots were approved; the amendments are meant to make the rules the same for everyone.

24. 59:09
    Clarification and the grandfathering question

    Ann (?) clarified that it is one back lot per front lot, not per driveway, so an owner with substantial frontage can create several front lots each with its own back lot. The resident asked to be grandfathered on what he had been told; Ann (?) said back lots already created are unaffected but anyone who has not created one yet would be subject to the new rule if voters adopt it. He said he was dismayed.

25. 59:09
    Fire chief on why the limit matters

    Chief Moore (?) asked whether the intent was to stop people getting around subdivision approval, and Ann (?) said it was. He explained that Durham has no pressurised hydrants, only dry hydrants that depend on rainwater and on ponds holding their level, so putting multiple structures on a property adds fire load and risk with no matching water supply. Subdivision review is where the department gets to discuss a fire pond or residential sprinklers with a developer.

26. 1:04:28
    Existing roads will not be reclassified

    A commenter asked where the ordinance says existing roads keep their present treatment. Ann (?) said that is simply how a zoning ordinance works: without retroactive language it applies only going forward, so a local road will not be turned into a subcollector and existing public roads are treated as they are now.

27. 1:04:28
    Layering a back lot with a family lot

    Matt, speaking for Nancy, asked whether a back lot and a family lot behind the primary residence could both be created. George (?) said the amendments allow a single back lot served by a 16-foot driveway with 50-foot access, which is easier than the current 20-foot road requirement, and that anyone wanting more must apply to the board to upgrade the road to a minor local street with review of design, maintenance and fire safety. Ann (?) added that 20 acres split into two 10-acre lots, each with at least 350 feet of frontage, would give each lot its own back lot.

28. 1:09:43
    Three five-acre lots on one road

    The resident who had objected asked whether a 50-foot road could serve three five-acre lots. Ann (?) said it could, but as a subdivision approved by the planning board rather than as back lots. He said that was very palatable and thanked the board, and Ann (?) apologised that it had not been clear.

29. 1:14:53
    Two houses on one lot

    Asked whether a second house could go on an existing residential lot, George (?) said a duplex is possible but two single family homes on one lot are not; each house needs its own lot. Under the back lot provision an owner without enough frontage to split off a conforming lot gets a maximum of two dwellings, the existing one and the back lot. Ann (?) noted the ordinance has never contained a family lot provision at all.

30. 1:14:53
    Paving requirements

    Under the current ordinance a back lot was served by a road that was supposed to be paved, which Ann called impractical; the new driveway does not have to be paved. A private road may serve up to three lots and remain gravel, and George (?) explained that adding a fourth lot triggers paving all the way out to the main road rather than paving only the extension, which is one of the points the board had struggled with.

31. 1:20:08
    Accessory dwelling units

    A resident described a friend with a main dwelling and a second dwelling for himself on the same property with no subdivision. Ann (?) said the town does have accessory dwelling units, which are smaller units on the same property, and that these changes do not affect them, but that three houses on one lot with road frontage is not possible: one front lot and one back lot.

32. 1:20:08
    Board of Appeals jurisdiction

    Ann (?) said the change came from an appeal of a planning board decision at which the Board of Appeals struggled to work out what its authority was. Most of the edits remove language that had been repeated in fifteen places and consolidate it at the end. The substantive change removes the word modify: on administrative appeals the board may now sustain or reverse the decision of the code officer, planning board or road commissioner, or remand for further proceedings, while remaining limited to the record evidence with no de novo review.

33. 1:25:28
    Miscellaneous changes: digital submissions

    No one spoke on the appeals section, so the board moved to the fourth set. Applicants for subdivision sketch and preliminary plans, conditional use and site plan review would have to submit an electronic copy alongside the printed copies, so material can be posted online before meetings rather than requiring a trip to the town office to see it.

34. 1:25:28
    Submission requirements and waivers

    Topographic requirements of five-foot contours, and two-foot contours for alterations, were moved into the standard requirements. The long checklist that forced applicants to request a waiver for every item that did not apply was reworked so the board can instead request a study such as a high-intensity soil survey when it is relevant, which should be more efficient for smaller projects. A clarification was also added, prompted by a selectman's concern, that a conditional use applicant must comply with the rest of the land use ordinance.

35. 1:30:49
    Shoreland zoning correction

    George (?) said the town had been in violation of the Mandatory Shoreland Zoning Act and rewrote the land use ordinance to comply; DEP approved the amendments and required one further change. The provisional order requires streams and freshwater open wetlands to carry the same frontage requirements as a lake or the river, and that language is now being added to the ordinance.

36. 1:30:49
    The March 6, 1976 date

    Bob, the code enforcement officer, had asked for a specific date he could point to. A series of interpretations by boards and prior code officers held March 6, 1976 as the point from which a lot needed two acres and 300 feet of frontage, with earlier lots grandfathered, and the amendment replaces the phrase about the effective date of the ordinance with that date. George (?) said the language dated from the March 1976 town meeting.

37. 1:36:02
    Public comment on nonconforming lots

    Jane Rice (?) asked whether other kinds of pre-existing nonconformity would be caught by the 1976 date. Ann (?) explained that this section deals only with undersized lots and lots with insufficient road or shore frontage, saying such a lot need not stay vacant forever, while structures out of setback and pre-existing businesses are covered by separate sections. They also worked through the distinction between shore frontage, which is a lot dimension, and setbacks, which govern where a building can sit.

38. 1:36:02
    Shoreland dates do not match

    George (?) said DEP imposed shoreland zoning on the whole of Durham in 1994 and the town revised its ordinance in 2019 to comply, so a lot created before 1994 would not be subject to the shore frontage requirements while one created afterward would. He added that the shoreland zoning provisions in article 9 carry their own nonconformity dates, separate from this section.

39. 1:41:18
    The board withdraws the change

    Ann (?) said that since shore frontage is only relevant in the shoreland zoning article, putting a 1976 date on it here would create competing nonconformity provisions and confuse anyone trying to work out which applied. Rather than edit the wording live and risk unintended consequences, she proposed withdrawing the proposed change entirely, and George (?) confirmed the board is free to withdraw a proposed amendment. Board members agreed, with the point that the underlying idea of naming a date is good and could come back after closer study or through an advisory opinion from the town attorney.

40. 1:46:38
    Close and adjournment

    Jane Rice pressed once more on whether wetland setbacks fall under shore frontage, and Ann repeated that they are two different concepts. The board confirmed the first three sets of amendments go to the warrant as drafted and the fourth goes forward with the last change removed, to be put on a later agenda, then adjourned by roll call.

What was decided

• 27:10
  No change was made to the home daycare provision in response to the fire chief's concern. The board concluded that nuisance standard nine, requiring a home-based business to meet all applicable fire and life safety standards, already obliges the code officer to apply the state fire marshal's daycare requirements.passed
• 27:10
  No vote was taken on the ordinance drafts themselves. George (?) confirmed the selectmen had already voted the draft warrant articles onto the April ballot and that this hearing is a required step rather than an approval, though the board may still add clarifying language.outcome unclear
• 1:41:18
  Agreed to withdraw the proposed amendment that would have written March 6, 1976 into the nonconforming lot provision, because applying that date to shore frontage would conflict with the shoreland zoning article, whose requirements date from 1994 and which carries its own nonconformity provisions. The item goes on a later agenda instead.passed
• 1:46:38
  Confirmed that the home-based business, roads and back lots, and Board of Appeals amendments go to the April warrant as drafted, and that the miscellaneous set goes forward with the withdrawn change removed and the rest unchanged.passed
• 1:46:38
  Motion to adjourn, seconded. Roll call: Juliet yes, Ron yes, Wes yes, and the chair yes.passed

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

• 5:33
  The current ordinance requires a home-based business to operate wholly inside the dwelling with no outdoor storage at all, so a business run from a barn or garage does not qualify. The proposed version allows 50 percent of the principal and accessory structures up to 1,500 square feet, fenced outdoor storage up to 1,500 square feet, two employees, two commercial vehicles and 40 vehicle trips a day instead of 20.
• 22:00
  A resident running an HVAC business from home objected that the rules require a business to fence its storage while a neighbour who is not a business faces no such requirement, and said Durham businesses should have been brought in to help draft them. The chair replied that four or five workshops had been held with business participation and that nothing changes for a business already legally permitted.
• 59:09
  Chief Moore (?) said the back lot limit matters for fire protection because Durham has no pressurised hydrants, only dry hydrants that depend on rainwater and on ponds holding their level. Adding structures without subdivision review raises the fire load with no matching water supply, and subdivision review is where fire ponds and residential sprinklers get negotiated.
• 1:41:18
  The board withdrew one proposed amendment during the hearing after a resident's questions showed that writing March 6, 1976 into the nonconforming lot provision would conflict with shoreland zoning, which DEP imposed on the town in 1994 and which has its own nonconformity dates.

Motion language found in the transcript

Located by pattern matching, with no model involved: "I move that", "I'll second", "all those in favour". This is an independent check on the summary above: 2 passages of motion language, against 5 decisions summarised.

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