Planning Board Meeting ~ September 4, 2024

2024-09-04 · Planning Board · 2:02:54 · watch on YouTube →

The planning board met on 4 September 2024 with all five members present. It ruled the preliminary plan for phase two of the Bowie Hill subdivision incomplete and directed a letter to the applicant listing nine deficiencies, including unpaid application and escrow fees. Most of the meeting was given to two items heading for the select board on 24 September: a draft moratorium ordinance on battery energy storage systems, and the resource protection working group's recommendations. On the moratorium the board could not settle where to draw the exemption for household batteries and deferred that to October, pending advice from the code officer and the State Fire Marshal's office. On resource protection the board supported removing areas mapped solely on beginning with habitat six-plus co-occurrence and putting a 100-foot development buffer around existing buildings, and set a tentative joint public information meeting for 13 November.

What was discussed

1. 0:06
   Quorum, agenda and minutes

   All five members were present. The agenda was corrected so that the minutes being accepted were those of 7 August rather than 5 June and 10 July, and those minutes were accepted.

2. 0:06
   Community centre facilities steering committee

   George Thebarge reported that the committee first met on 26 August to develop a long-term vision for the town offices, the Eureka Center, the fire station and the ball field, facilitated by the Greater Portland Council of Governments and aiming to finish by February. He said management of these buildings has been crisis-driven for the six years he has worked here and that a plan would put the town in a position to apply for facility grants. Possible outcomes include putting a foundation under the Eureka Center, moving it away from the corner, and asking the Department of Transportation to realign the Route 9 and 136 intersection.

3. 5:13
   Public engagement on the facilities plan

   Stakeholder groups identified include town office staff, Eureka volunteers, the fire department, civic groups and neighbours, and the planning board was named as one of them. The plan is for one daytime and one evening session plus an online survey; a member suggested live streaming or recording the daytime session so people are not excluded.

4. 10:42
   Land use ordinance codification

   The consultants have proposed a new outline and numbering for the land use ordinance and have begun the legal review, flagging areas such as article 16 on expanding non-conforming buildings, which George Thebarge said probably does not comply with state law. The review began on 6 August and takes 180 days, which puts delivery at the end of January and makes the April 2025 town meeting tight but possible. Members asked to see the contract and its deliverables; the town meeting earmarked around $12,000 for the work.

5. 16:21
   Conservation Commission on solar siting

   Michael Friendly said the commission will not bring anything to a town vote until 2026. It is mapping resources it wants to protect and where solar should be sited, including farmland and intact forests, and has charted where three-phase electrical service exists in Durham, which is limited. It is still discussing whether to use a fee structure as an incentive to steer projects to less sensitive areas.

6. 21:55
   Bowie Hill phase two completeness review

   The board found nothing had been submitted in the month since it granted the applicant an extension. George Thebarge listed the deficiencies in the draft letter: no application or escrow fees paid; an incomplete and inaccurate form; no location map; the plan not labelled as a preliminary subdivision plan with a complete title block and map and lot number; no survey plan by a registered surveyor; no septic system logs for the outlying lot 26 on Bowie Hill Road; no names and addresses of abutting landowners; no existing buildings shown on the phase one lots; and no cleared areas indicated.

7. 27:20
   Vote on the incomplete determination

   The motion was amended to reference the draft letter in the packet and the specific items listed, and carried. The chair noted an incomplete determination carries no timing penalty and the applicant can return the following month.

8. 27:20
   Draft battery storage moratorium

   George Thebarge presented a draft moratorium ordinance for the select board to put to the April 2025 town meeting, based on a Maine Municipal Association model which itself cites a Durham moratorium from around 2000. It would run six months with a further six months available at the select board's discretion, the first period to be used to study whether such facilities could be accommodated and what an ordinance would need to require. The concerns are drawn from a New York interagency working group report of January 2024, prompted by three major fires at such facilities, and from the town's limited capacity to review a project of the scale recently approved in Gorham, five acres of battery containers.

9. 33:13
   Where to set the exemption for small systems

   The draft exempts systems up to 20 kilowatts, taken from a New York example. Members noted a Tesla Powerwall is 12 to 13 kilowatts and that 20 would be limiting, and discussed whether to define the exemption by size, by residential use, or by whether the system is behind or in front of the meter. New York's tiers divide at 600 kilowatts, which one member said serves roughly 30 to 35 homes.

10. 44:35
    Whether the definition already excludes home systems

    Allan Purinton pointed out that the ordinance's own definition of a battery energy storage system, as an interconnected facility of self-contained storage units, already excludes a household power wall, so the kilowatt threshold may be unnecessary. Members agreed but wanted certainty that adding a second unit at a house would not trigger the definition, and George Thebarge cautioned that the legal wording needs care. The item was deferred to the October meeting, with advice to be sought from the code enforcement officer and the State Fire Marshal's office.

11. 54:50
    Water supply and fire response

    Brian Lanoie questioned including water supply among the concerns, saying these facilities carry their own suppression and water is not used on battery fires. Others said water matters for containing spread to abutting properties, since the New York report describes explosions throwing flammable fragments. The report also recommends experts available around the clock, activated within 15 minutes and on scene within four hours, which George Thebarge said is beyond the Durham fire department; members said such requirements and any special equipment would be written into an ordinance at the applicant's expense.

12. 54:50
    Timing gap in the moratorium

    The chair raised that a moratorium adopted at the April 2025 town meeting and running twelve months would lapse a few days before the April 2026 meeting, leaving a window for an application. George Thebarge said a replacement ordinance can be made retroactive under Maine law to a date before its enactment, which would close the gap, and that the town attorney will confirm the wording.

13. 1:00:22
    Resource protection working group report

    The chair said the working group, made up of Juliet Caplinger, Allan Purinton and himself with three Conservation Commission members, has met three or four times and reviewed each affected property individually. George Thebarge presented a draft report finished that day, covering the 2023 revisions, the new state data, the buildings caught in resource protection, and the options considered.

14. 1:05:54
    The revised beginning with habitat data

    After residents challenged the state data, Inland Fisheries and Wildlife carried out a customised analysis for Durham and confirmed its co-occurrence map was inaccurate; the only areas now meeting the six-plus threshold are a few small circles, all of which fall inside land already protected for other reasons. The recommendation is that any area which is resource protection solely because of six-plus co-occurrence comes off the map, about 1,500 acres, while the criterion stays in the ordinance text in case future studies identify new areas.

15. 1:16:39
    Relief for buildings in resource protection

    Removing the six-plus areas takes 18 buildings out of resource protection. A further 34 buildings on 26 properties remain in, and currently must go to the planning board or board of appeals for any expansion. Three options were examined and, after the select board directed the group not to pursue option one, it recommended option three: a 100-foot development buffer around existing structures, with flood plain and large forested wetland cases treated as buffers around the building and stream and waterfowl and wading bird buffer cases handled by pulling the boundary off the building so expansion can only go away from the resource.

16. 1:22:16
    Whether to show six-plus areas on the map

    A member argued the beginning with habitat six-plus areas should still appear on the final map, perhaps as a red dot, since the criterion remains in the ordinance. The chair and George Thebarge said the areas are already resource protection for other reasons, that a multi-coloured map would be unreadable, and that showing it invites a controversy about a criterion which has attracted most of the public objection. The board left it off the map.

17. 1:32:41
    Public participation and messaging

    George Thebarge is cataloguing every affected property and will send each owner a postcard about two weeks before a public information meeting, directing them to the website and offering to explain their property individually, as was done last time. Members discussed how difficult the change is to explain and agreed on the need for consistent messaging that the proposal gives relief to affected owners and adds nobody to resource protection.

18. 1:37:45
    The chair's personal position

    John Talbot said he personally favours option one, the wider development buffer, and would say so as an individual at the public information meeting or at town meeting but not as chair of the planning board. Other members cautioned about the distinction, and he said he would present the working group's recommendation as the board's position.

19. 1:43:31
    Board of appeals precedent

    Members discussed a property owner who paid for an expert study which found no Blanding's turtle habitat, and another case turning on a wetland delineation, and got relief from the board of appeals. George Thebarge said some landowners argue the town should pay for such studies, but that towns which have surveyed properties have spent hundreds of thousands of dollars and that owners generally do not want surveyors identifying restrictions on their land. The board agreed to keep the present approach, with delineations paid for by the applicant at the time of development.

20. 1:49:07
    Sticking to the charge

    George Thebarge advised that when residents raise resource protection issues outside the scope of the work, the answer should be that the select board's charge to the working group was limited to the changed data and to giving relief to owners whose buildings were placed in resource protection. Members added that telling people to vote against the article if they disagree is not a good message. The board agreed to send the recommendation forward to the select board on 24 September with the support of both the planning board and the Conservation Commission.

21. 1:54:35
    Public information meeting set

    A joint public information meeting was tentatively set for Wednesday 13 November at 6.30 at the fire station, with the resource protection working group leading and the planning board following on battery storage. Members also agreed to put up a display at the November election, as was done for affordable housing, and to volunteer in shifts to explain it, with the format to be settled at the October meeting.

What was decided

• 0:06
  Accept the meeting minutes for 7 August; moved by Juliet Caplinger, seconded by Allan Purinton, carried 5-0passed
• 27:20
  Rule the Bowie Hill phase two preliminary plan application incomplete and send the applicant a letter setting out the deficiencies; moved by Juliet Caplinger, seconded by Marc Derr, carried 5-0passed
• 44:35
  Defer the exemption threshold for small battery storage systems to the October meeting, pending advice from the code enforcement officer and the State Fire Marshal's office; agreed without a votepassed
• 1:00:22
  Have the town planner prepare a memo recommending a battery energy storage moratorium, with the draft ordinance and the New York fire study, for the select board on 24 September; agreed without a votepassed
• 1:22:16
  Leave beginning with habitat six-plus areas off the revised resource protection map while keeping the criterion in the ordinance text; agreed without a vote after discussionpassed
• 1:49:07
  Send the resource protection working group's recommendation, the removal of six-plus areas and a 100-foot development buffer around existing buildings, to the select board on 24 September with the support of the planning board and the Conservation Commission; agreed without a votepassed
• 1:54:35
  Tentatively set a joint public information meeting on resource protection and battery storage for 13 November at 6.30, with postcards to affected property owners about two weeks beforehandpassed
• 1:59:52
  Adjourn; moved by Allan Purinton, seconded by Juliet Caplinger, carried 5-0passed

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.

Motions the minutes record

The town's own written account of what was decided, taken from pb_minutes_09_04_24.txt. It owes nothing to the recording or to a model: the clerk typed it, with the vote. Where the summary above claims a decision this list does not carry, the summary is the part to doubt.

• accept the meeting minutes for August 7thcarried 5-0

  Moved by Juliet Caplinger, seconded by Allan Purinton

• rule the application as incomplete and to provide the applicant with a letter explaining the decisioncarried 5-0

  Moved by Juliet Caplinger, seconded by Marc Derr

• adjourn the meetingcarried 5-0

  Moved by Allan Purinton, seconded by Juliet Caplinger

Worth knowing

• 21:55
  Nothing had been submitted on the Bowie Hill phase two subdivision in the month since the board granted an extension, and the applicant had not paid any application or escrow fees. Nine separate deficiencies were listed in the letter.
• 33:13
  The facility recently approved in Gorham is five acres of battery containers. The New York report the draft relies on recommends experts reachable within 15 minutes and on scene within four hours, which the town planner said is beyond the Durham fire department; any future ordinance would put that cost on the applicant.
• 1:05:54
  The state's revised analysis means about 1,500 acres come out of the resource protection district. Eighteen buildings come out with it, and a further 34 buildings on 26 properties would get a 100-foot development buffer so owners can expand without going to the planning board or board of appeals.
• 1:54:35
  A joint public information meeting on resource protection and battery storage was tentatively set for 13 November at 6.30 at the fire station, with postcards going to every affected property owner about two weeks before and a display at the November election.

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 8 decisions summarised.

Elsewhere

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