October 3, 2020 ~ Public Hearing (Part 1)

2020-10-03 · Public Hearing · 1:52:32 · watch on YouTube →

A public hearing held over Zoom on the municipal articles the Select Board placed on the November 3, 2020 referendum ballot alongside the national election, chaired by Kevin. Four groups of articles were taken in turn: a minor change raising the Historic District Commission's alternate members from two to four, amendments bringing the town's shoreland zoning into compliance with state law, a proposal to replace the town administrator with a town manager, and whether Durham should opt in to any category of marijuana business. Nothing was voted at the hearing; it was for questions and comment. Two themes ran through the evening: residents objecting that a Zoom hearing and a ballot question are no substitute for debate on a town meeting floor, and a running argument on marijuana between a local farmer who wanted the town to opt in and write a good ordinance and members and residents who said Durham lacks the zoning, staff and enforcement capacity to manage it. The chair said this was the first of two identical hearings, with the second on Saturday morning, October 3, and that a phone-only option existed for those without Zoom.

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. 0:09
   Why the articles are on the November ballot

   The chair said the board saw the national election as a unique opportunity to get a broad vote on important issues, anticipating well over 2,000 voters. Notices had been mailed to every household and the documents put on the town website. This was the first of two identical hearings, one on a weeknight and one on Saturday morning, October 3.

2. 0:09
   Rules of the hearing

   Speakers were to use the raise-hand button or call in by phone, give their name and street, and keep to three minutes, with the rule to be applied more strictly if many wanted to speak. Only Durham residents and town employees would be permitted to speak. The chair said these were rules set by the board for a legislative hearing and not something requiring a vote.

3. 0:09
   Historic District Commission article

   The only change sought is to raise the number of alternate members on the commission from two to four, to give it more help available. Because the figure of two is written into the land use ordinance, changing it requires a town vote. No public comment or question was offered and the chair closed that portion of the hearing.

4. 5:46
   How the state came to impose shoreland zoning on Durham

   Ann Torgrosa (?), the planning board chair, explained that the legislature passed shoreland zoning in the late 1980s or early 1990s and DEP made rules requiring every municipality to adopt a consistent local ordinance. Durham was one of about 40 that did not, and in 1994 the Board of Environmental Protection held a hearing and imposed an ordinance and a map on the town. Town boards and the code officer are obliged to apply the state rules, and the state has sued municipalities over shoreland zoning in the past.

5. 5:46
   Why adopt a local ordinance if the state rules already apply

   Torgrosa gave three reasons: the town has more control over what applies and may be stricter than the state minimum if it chooses; other statutes limit the town's enforcement powers while it has no approved shoreland ordinance of its own; and compliance with state law is required. She cited the asphalt pile on Route 136 next to the river as an example where the selectmen were limited in what they could do.

6. 5:46
   How the amendments were drafted

   George, the town planner, made an initial pass and the town also hired Mike Morse, formerly DEP's shoreland zoning officer for southern Maine, as consultant. Both worked through the maps and ordinance. Having the option to go beyond the state minimum, the planning board decided to meet the minimum standard and no more. DEP has given a tentative approval and will lift the state-imposed ordinance once the article passes and receives final approval.

7. 11:03
   The map changes

   Torgrosa shared the map and walked through six wetland areas the DEP (?) said had to be brought into protection. Wetland one goes into limited residential; wetland two, a forested wetland, and wetland three go into resource protection, with three more areas at the bottom of the map. She said the map changes would affect more people than the ordinance text changes, which cover definitions and the land use table.

8. 11:03
   Jane Rice objects to the process

   Jane Rice of Bowie Hill Road, who owns four properties in one of the newly added areas, said she had attended two planning board meetings, that the board listened but then did what it wanted, and that it chose to push the article to a vote rather than spend more time on it. She said three people resigned from the board at the last meeting she attended.

9. 11:03
   Objection to Zoom as the forum

   Rice (?) said a Zoom meeting does not represent the town, giving her own mother-in-law next door as an example of an older taxpayer who does not know what Zoom is. She asked how many were on the call and was told 37, some of them town employees who do not live in Durham. She said this was all the taxpayers would get, with no chance to ask questions at a town meeting.

10. 16:05
    Who was notified

    Rice (?) said the only households sent a letter were those on the newly added map areas, a small number of people, so everyone else would simply assume the town has to do what it has to do. She said the change will cost individual taxpayers money, because anyone wanting to do work on land with water touching even its edge will have to pay for a delineation.

11. 16:05
    The chair on turnout

    The chair said 37 attendees is a larger turnout than an in-person public hearing usually draws, that a town meeting typically brings 150 people or fewer, and that a phone-only option existed. He said it was very unlikely there could be an in-person town meeting the following April and that the board would keep moving town business forward with the tools available.

12. 16:05
    Neil's questions on wetland mapping

    Neil (?) asked who determines the wetland geography and why the town needs to act if the state has already imposed the rules. The answer was that DEP working with the consultant determines the wetlands, and that the state imposition limits the town's enforcement powers elsewhere. Torgrosa (?) added that Rice had asked the town to hire a surveyor to survey the affected properties, that no town in the state does that, and that the cost to an individual applicant is the same before and after the change.

13. 22:02
    The garage question from the historic district

    A written question from Daniel (?) asked whether adding a garage on a Ferry Road property in the Southwest Bend historic district would face additional steps because of river frontage. The answer was that land within 250 feet of the river is already resource protection under both the town's rules and the state-imposed ordinance, that no development is generally allowed there, and that expansion of non-conforming uses is handled through the board of appeals. The point was made that the answer is the same under the existing and the proposed ordinance.

14. 22:02
    Two sets of rules that do not line up

    It was explained that the code enforcement officer is currently working from the town's own shoreland regulations and the state-imposed model at the same time, and they do not match. That leaves property owners, the code officer and anyone seeking a building permit unsure which rules apply, and the amendments are meant to put everyone on the same page.

15. 27:32
    Rice corrects the record on the survey request

    Rice came back to say she had not asked for a survey of only the two new areas or of her own land. The planning board had discussed doing a delineation for the whole town, because the lines were not clear and a property owner had no way of knowing what they would be judged by. She said she left that meeting believing that was the plan and only on reviewing the recording found it had been dropped.

16. 27:32
    The town manager presentation opens

    The chair moved to the town manager articles and shared a presentation that had been on the town website for a couple of weeks, covering the current structure, benefits, cost, transition timeline, the search process, and what would and would not change.

17. 32:34
    Administrator against manager

    The chair said the difference is scope: a town administrator, and he said Durham has a very good one, is responsible for town office staff and the administrative budget, while a town manager is responsible for everything, with the road commissioner, fire chief, planner, code enforcement officer and office staff all reporting up. Department heads currently prepare their budgets in silos and have no direct supervisor.

18. 32:34
    How the town has grown

    Durham now has 10 full-time employees where it had four in 2014, including an entire public works department that did not exist, but the way the organisation is run has not changed. Department heads report to the board of selectmen as a group, which meets twice a month, and no individual selectman has authority alone, so there is no one to give day-to-day supervision, coaching or feedback. He noted 85 percent of Maine communities over 3,500 people have a town manager and Durham was just under 4,000 at the last census.

19. 32:34
    The case for the position

    The benefits were put in three groups: human resource management, including continuity as board membership changes and handling employment issues within state and federal law, where a mistake exposes the town to significant risk; budget management across all departments including long-term capital planning; and strategic guidance, the capacity to look beyond daily tasks, spot grant opportunities and navigate an increasingly complex regulatory environment.

20. 37:46
    What it would cost

    Using Maine Municipal Association salary survey data for comparable towns, the salary difference between the current administrator and a town manager was put at approximately $35,000. The manager replaces the administrator, so there is no additional employee. The municipal budget is a little over $3.5 million, making this a little under 1 percent, and the municipal budget is about 23 to 24 percent of total town expenditure including schools and county. A one-time cost of up to $8,000 for executive search services is a separate article.

21. 37:46
    Timeline and statutory basis

    The first article asks the town to adopt the town manager plan under Title 30-A, with the citation and a link provided; the chair described it as technically a change in the form of government, since town manager is a position defined in state law while town administrator is not. If both articles pass, the search would start with MMA in November and run to March, and the change would take effect at the April 2021 annual town meeting.

22. 37:46
    The nine-step search process

    The chair walked through the process MMA would run: a needs assessment with the board and public input on priorities, recruitment through municipal journals and websites, a rating document, MMA screening of resumes with all of them passed to the board along with its recommendations, a resume review with the board, first-round interviews on which citizen stakeholders would sit, background and reference checks on the finalists, second interviews, and MMA acting as the agent for the offer and any negotiation.

23. 43:45
    What would change

    All town employees would report up through the manager rather than to the board, which would give up its supervisory and performance management role. The manager would hire all personnel, but department head appointments would remain subject to select board approval. The manager would be responsible for the whole town budget. Individual selectmen would have to route direction to department heads through the manager rather than approaching them directly.

24. 49:37
    What would not change

    Town meeting continues as the legislative body with sole power to raise and appropriate money and authorise debt. The board of selectmen remains the executive body, appoints committee and commission members, and appoints and supervises the manager. Budget committee, planning board and other standing committees continue unchanged.

25. 49:37
    Jeffrey Wakeman on the forum

    Jeffrey Wakeman of New Brook Road (?) said the town manager may be the right thing eventually but this was the wrong time, and that a change of this size needs to be argued on a town floor with differing opinions. With about 37 on this call and a similar number expected Saturday, he calculated that roughly 80 people, about 4 percent of the expected 2,000 voters, would hear it, and that all the information circulating is in favour.

26. 49:37
    The school budget

    Asked what role a town manager would have in school budgets, the chair said essentially none, since the school budget is the school board's. He allowed that the RSU reaches out to community leaders each year and there are meetings where the budget is discussed, but the manager would have no authority or responsibility for it.

27. 54:43
    Benefits left out of the cost figure

    A resident said the mailed card's wording about adopting the town manager form of government did not read in plain English as asking voters to hire a town manager, and that she only learned of it from Facebook. She then pressed on cost, pointing out the $35,000 figure was salary only and that MainePERS contributions are a percentage of salary, so the true difference is larger. Ruth, the town administrator, confirmed MainePERS is a percentage of salary, around 7 or 7.5 percent, and the chair calculated just under $2,500 on the $35,000 difference. The resident asked that the full package be shown to voters for transparency.

28. 54:43
    Whether the town already has this form of government

    Neil quoted an MMA guide he had been given saying the town meeting, selectmen and manager form already covers several variations including an administrative assistant, and asked whether Durham is chartered for a specific form. The chair said Durham has no charter, that town administrator is undefined in statute while town manager is, and that adopting the town manager plan without a charter spells out the detail.

29. 59:49
    Neil's position and a part-time option

    Neil quoted the guide's point that towns have considerable flexibility over which offices sit under the manager, agreed with Wakeman that this should be done at a town meeting where people can talk, and said he was not violently opposed but did not have enough information. Asked about a part-time manager, the chair said the board had not considered it, because more than 10 full-time staff and the budget require full-time supervision. He argued Durham is already most of the way there, having long since made department head positions appointed rather than elected.

30. 59:49
    The administrator's position

    Ruth relayed questions asking whether the town administrator position would be eliminated and whether her duties would be covered. The chair said the manager role replaces the administrator role with no net increase in positions, that the core functions would be assumed, but that a new manager should be free to look at how staff are organised with fresh eyes rather than being told what must stay as it is.

31. 1:05:20
    Counter capacity

    John (?) asked whether two clerks can cover the window as the town grows, given vacations, holidays and sick time, and whether counter duty would eat the time a town manager is being paid to spend elsewhere. The chair said a manager would likely conclude they cannot be on the window as many hours as the administrator was, that there are part-time secretary and IT hours that could be shifted, and that any request for another position would go through the ordinary budget process and a town vote.

32. 1:05:20
    No study behind the proposal

    A written question asked how to access the report or study proving the necessity of a town manager. The chair said there is none: the proposal rests on the board's experience of town government over recent years. Another written question about what savings other towns had found went unanswered.

33. 1:05:20
    Torgrosa (?) speaks in favour

    Speaking for herself, Ann Torgrosa (?) said that in her professional work with towns of varying models, a single professional in charge streamlines nearly everything, builds regional relationships and allows goals to be prioritised. As planning board chair she had asked for things to be done and found nobody knew who would do them, so they were not done, for want of a single point of contact. She urged that if the search does not produce the right person the first time the board should not settle.

34. 1:11:16
    The marijuana articles explained

    The chair said there are four categories of adult use business and four medical, each asked separately, and that a yes on any is contingent on the town later approving a marijuana ordinance regulating it. Opting in is therefore a two-step process, with the ordinances written only if the town first says yes, because drafting costs money. A further article seeks about $5,000 for legal and professional help drafting them.

35. 1:11:16
    The budget committee's caveat

    The chair said both the select board and the budget committee recommended the drafting funds, but that the budget committee wanted it made very clear this was not an endorsement of any marijuana business. There had been considerable concern in that meeting that a vote to fund the drafting would be read as a vote in favour.

36. 1:16:57
    No revenue to the town

    Neil (?) asked what financial benefit the town would see. The answer was essentially none: perhaps a marginal increase in assessed value and a small amount of personal property tax, but no sharing of sales or excise tax revenue with host communities, that provision having been removed from the original law by the legislature. Local licence fees were later raised as a possible modest source.

37. 1:16:57
    Jud Grimes for opting in

    Jud Grimes of Royalsboro Road at East Branch Farm (?) argued the town should call it cannabis and treat it as a medicine, opposed any cap on the number of businesses as shutting out long-standing caregivers, and said allowing cultivation but not processing or retail is like telling a farmer he can grow strawberries but not make jam. He warned against hiring a lawyer working for out-of-state dispensaries and proposed a citizen committee of five to seven people, including people in the industry, to do the drafting.

38. 1:22:04
    Grimes on regulation and the black market

    Grimes (?) said the way to keep cannabis from young people is to regulate it properly rather than leave a black market, cited studies showing opioid deaths falling where cannabis is regulated, and called the gateway drug argument unproven and offensive. He said the 2016 vote was to regulate it like alcohol, which the town already sells, and that opting out denies residents something they voted for.

39. 1:22:04
    Torgrosa against, on capacity

    Torgrosa (?) said she has no objection to marijuana businesses in general and that people have obtained cannabis in Durham for years, but that it is wrong for Durham because the town lacks the staff capacity and sophistication. She raised fire risks in manufacturing and cultivation and security concerns in retail, opening with a remark that no strawberry jam maker has blown up a facility with butane. She said the state's enforcement staff is limited and not engineers, and will not make up for the town's own gaps.

40. 1:27:17
    Grimes replies on extraction

    Grimes (?) said butane is only one extraction method and that the highest-end product now uses solventless ice water extraction, so a butane explosion is one scenario rather than the norm. He argued the safeguards belong in the ordinance the town would write, requiring compliance with state rules, and that a facility in Durham would be no more dangerous than anywhere else.

41. 1:27:17
    Neil on the black market and gateway argument

    Neil (?) said the black market argument is bogus because it persists in states like Colorado where people avoid the tax. He then said marijuana was a gateway drug for him personally, that he went through the alphabet and ended in heroin, and that he could produce hundreds of people who would say the same.

42. 1:32:58
    John on the absence of zoning

    John (?) said his central concern is that Durham has no zoning districts: everything is a residential zone and anything beyond residential character goes through a conditional use permit. He had spent time around grow facilities in Brunswick's industrial park, where odour does not sit in anyone's back yard, and said that from years on the planning board he had seen neighbours object to a daycare and to an electrician's vans. Odour is very hard to quantify and would put the board in an impossible position if such a business were permitted in a residential neighbourhood.

43. 1:38:06
    Grimes on odour and farming

    Grimes compared the odour objection to someone complaining about the chickens he raises, said an agricultural operation may not even need to go before the planning board, and that neighbours have every right to appear and object when an application is made. He said he does not want a corporate grow polluting natural resources either, which is why he wants people who know the industry writing the ordinance, and that filters can eliminate odour and some varieties have none.

44. 1:38:06
    The chair's own view

    The chair said much of what Grimes (?) says is true, that these businesses can be well regulated and fit into communities, but that it takes resources Durham cannot devote. With no local police department, a code enforcement officer already at capacity and challenges at the planning board, his personal hope was that the town votes no. He noted that opting in is itself part of the law the voters approved.

45. 1:43:18
    A resident's experience in another town

    A speaker who appeared under another name and identified himself as Robert (?) said he owns property in another town where his three children live on the same road, and that someone bought land at the end of it and opened a marijuana farm and farm stand. He attended three Zoom planning board meetings; the board admitted it had no experience with these businesses and approved it anyway. The stand now sits about 50 feet from his youngest son's driveway, with cars on the road at all hours.

46. 1:43:18
    Why put it on the ballot at all

    Robert (?) asked why the question is being put at all, since passing it would open the door to an out-of-state buyer looking for a town without competition. The chair said a small handful of citizens had asked for it, and that a non-binding straw poll at a gubernatorial election, which he placed around 2016, had come out narrowly in favour on every question, around 52 to 48. The board of the day had given its word that if the straw poll showed interest it would put the questions to a real vote.

47. 1:49:17
    Grimes closes

    Grimes (?) asked people to remember it is a medicine that has helped many and in some cases saved the lives of people addicted to more dangerous drugs. He agreed that out-of-state money is the last thing he wants, and argued Durham could be a leader in Maine by writing an ordinance that keeps those things out rather than opting out for want of resources.

48. 1:49:17
    Whether the comprehensive plan gives guidance

    A written question asked whether, given the lack of zoning, the adopted comprehensive plan directs new businesses to areas the town deems appropriate. George, the town planner, answered no: the plan reflects the current policy of allowing businesses anywhere in town through conditional use review, and the only area where it favoured more liberal allowances was agricultural operations, which do not reference marijuana or cannabis.

49. 1:49:17
    Close

    With no further hands or written questions, the chair reminded people the same hearing would be repeated on Saturday morning, October 3, encouraged them to tell neighbours who might not be aware, and repeated that a phone-only option exists for those without a computer or Zoom.

What was decided

• 0:09
  The board's decision, explained at the opening, to put these municipal articles to a referendum ballot on November 3 alongside the national election rather than to a town meeting, and to hold two identical public hearings, one on a weeknight and one on Saturday morning. The reasoning given was an expected turnout of well over 2,000 voters against the 150 or fewer who attend a town meeting.passed
• 0:09
  Rules for the hearing set by the board: three minutes per speaker, each of the four topics opened and closed in turn, and speaking limited to Durham residents and town employees. The chair said explicitly that this was not something requiring a vote.passed
• 16:05
  The planning board declined the request, made at its workshops, that the town pay for a delineation survey so property owners would know where the shoreland lines fall on the ground. Ann Torgrosa (?) said no town in the state does that, that it would be a cost to taxpayers the board was not willing to impose, and that the cost to an individual applicant is unchanged by the article. The applicant, Jane Rice, disputed the account, saying the proposal discussed had been a survey of the whole town rather than of her land.failed

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

• 5:46
  Durham was one of about 40 Maine municipalities that never adopted its own shoreland zoning ordinance, so in 1994 the Board of Environmental Protection imposed an ordinance and a map on the town. The code enforcement officer now works from two sets of rules that do not line up, and the town's lack of an approved local ordinance limited what the selectmen could do about the asphalt pile on Route 136 beside the river.
• 37:46
  The town manager would replace the town administrator rather than being added, at a salary difference of about $35,000, a little under 1 percent of a municipal budget of just over $3.5 million, plus a one-time $8,000 for executive search services. A resident pressed that the figure is salary only; MainePERS is a percentage of salary, put at around 7 percent, adding just under $2,500, and she asked that the full package be shown to voters.
• 49:37
  Several residents objected that a Zoom hearing and a referendum ballot are the wrong way to decide changes of this size, because there is no back and forth and no chance to hear opposing views. Thirty-seven people attended. Jeffrey Wakeman calculated that with a similar turnout on Saturday, roughly 80 people, about 4 percent of the expected 2,000 voters, would have heard the case, and that all the material circulating is in favour.
• 1:16:57
  Opting in to marijuana businesses would bring the town essentially no revenue: the legislature removed the sharing of sales and excise tax with host communities, leaving only marginal property and personal property tax and possibly a local licence fee. The budget committee recommended the $5,000 to draft ordinances but asked strongly that this not be read as support, and the chair said his own hope was that the town votes no.

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