Planning Board Meeting ~ February 4, 2015

2015-02-04 · Planning Board · 2:22:50 · watch on YouTube →

The Planning Board met on February 4, 2015 to continue Robert and Kelly Burnham's conditional use application for a vehicle repair business run out of their existing garage, to take a first look at a new application for a home horseback riding lesson business, and to review a back lot division. The Burnham hearing took more than half the meeting and turned on the landscape buffer between the applicants' garage and an abutting neighbor, who appeared with attorney Mike Feldman. The board reconsidered and then re-adopted its groundwater finding, this time imposing it as a condition of the permit, and tabled the application until March 4 pending a written planting plan with dimensions. Ariel Clair's riding lesson application and Earl Kandle's (?) back lot plan were also tabled, hers because the scale of the business and the location of a proposed pasture were undefined, his because the acreage figures on the surveyed plan do not add up. The code enforcement officer then asked the board to consider adopting state forestry standards, which would have to go to town meeting, and the board closed by approving the January 7, 2015 minutes with corrections. Nominations for chairman and vice chairman were raised at the very end but the recording stops before anything is settled.

What was discussed

1. 0:02
   Call to order, quorum and order of business

   The chair opened the Planning Board meeting of February 4, 2015, noted a quorum with three members present, and led the Pledge of Allegiance; the members' names are garbled in the recording. A member then moved that the minutes and other routine business be held to the end so the residents waiting could be heard first, and because Earl Kandle (?) had not yet arrived his back lot item was moved back as well.

2. 0:02
   Burnham conditional use application resumed

   Robert and Kelly Burnham came forward with a copy of the deed and a larger format map, continuing an application heard at earlier meetings. The board worked from a written checklist of items still outstanding.

3. 5:58
   Resource protection, flood line and outstanding submissions

   The board confirmed that the zoning map, not the tax map, controls, and that although the flood line crosses the property the area to be built on is not in resource protection. The deed copy was accepted, parking was shown on the map as four spaces, and the applicants confirmed the parking area will be gravel rather than paved.

4. 10:59
   Proposed buffer plantings and site photographs

   Kelly Burnham (?) showed before and after photographs of the cutting on the property and identified a roughly 20 foot strip between the two houses as the only thin section of the tree line, which she proposed to fill with spruce and pine. She said impervious surfaces come to about 5,000 square feet of the more than 51,000 square feet on the lot.

5. 16:16
   Impervious surface, sign locations and flood elevations

   The impervious figure was explained as covering the barn, garage, house, sheds, decks and porches but not the dirt and gravel drive. Sign locations were on the map, the flood zone was identified as a 100 year zone, and elevations were given as 168 for the land, 177 at the house and 171.8 at the garage against a flood stage of 167.

6. 21:21
   Landscaping plan lacks dimensions; 20 foot buffer settled on

   A board member said the plan showed where trees would be planted but not how wide the buffer would be or how much would be maintained, which matters because the buffer becomes a condition of approval. After discussion the board and applicants settled on a 20 foot maintained buffer running the length of the lot line.

7. 26:40
   Replacement requirement for plantings and parking screen

   The board explained that the ordinance requires a percentage of new plantings to survive the first year, with a one year review and replacement of anything that does not make it. The applicants also described 12 arborvitae planted along a 52 foot area to screen the parking from the road, and noted the garage itself has been in place for four years.

8. 31:47
   Attorney Mike Feldman appears for the abutting neighbor

   Mike Feldman introduced himself as an attorney from Brunswick appearing for the abutting neighbor, Mr. Sunberg (?). He said he was not asking the board to deny the application but wanted time to get professional input on odor, noise, soils and the adequacy of the planting buffer, including from a landscape architect.

9. 37:11
   Criteria already decided; how noise is enforced

   The board told Feldman that noise, odor and hazardous materials had been decided at the January meeting, when the neighbor was represented, that the only outstanding issue was the landscaping and buffer, and that the revised plan was filed on Monday the 26th and available at the town hall from that date. Members explained that Durham has no zoning and no standalone noise ordinance, so the noise standard was imposed as a condition of the conditional use permit and any breach becomes a code enforcement matter. The applicants had testified that work would be done inside the enclosed garage and that they do not use pneumatic tire equipment.

10. 42:30
    Hours of operation and vehicle limits

    Reading from page 49 of the ordinance, the board gave the restricted hours as 9:00 p.m. to 6:30 a.m. Feldman pressed on the vehicle count and members confirmed the approval was being considered on the basis of four parking spaces with a maximum of six vehicles outside the garage, whether cars, snowmobiles or similar.

11. 47:55
    Whether a landscape architect is required

    Feldman argued that screening is a technical question and the applicants should bring someone experienced in plantings to satisfy the board. Kelly Burnham said she had spoken with Chad at Skillins, who was to draw a plan but had surgery, and the exchange between the attorney and a board member became short tempered.

12. 47:55
    Neighbor's shallow well

    The neighbor said he is not an expert but is worried about toxic chemicals reaching his shallow well, which he put at about 300 feet from the garage and lower in elevation, with wetlands draining between the two properties. The board replied that it had already made a finding on groundwater based on testimony that no oil would be stored outside and that leaking vehicles would be kept inside.

13. 53:10
    Groundwater finding reconsidered and made a condition

    To address the well concern a member moved to reconsider the board's decision on criterion L, then moved to find the criterion met while also imposing it as a condition of the permit. Members noted that if the neighbor's water is later affected it becomes a code enforcement investigation.

14. 58:26
    Written planting plan required; Burnham application tabled

    The board asked the applicants to bring back a formal plan showing distances, what is already growing and what will be planted where, and said a drawing from Skillins would do rather than a landscape architect. The application was tabled to the March meeting, the applicants agreed to extend the time for a decision, and the board urged the two neighbours to talk in the meantime.

15. 1:03:44
    Ariel Clair heard out of order

    Ariel Clair (?) asked to be taken next because she had a child at home with a fever, and the board agreed. She said she recently moved to 12 Pound Road, has taught horseback riding for most of her adult life, and wants to teach her existing 11 students at her own home, with boarding possible much later once a barn is built.

16. 1:08:45
    Scale of the horse operation

    The board explained it can only approve what she asks it to consider and needs numbers, and she settled on five commercial horses over the next five years with no barn for now. Existing features are a run-in shed, a temporary hay storage shelter, a garden shed, two chicken coops and a fenced pasture; the riding ring is proposed, as is a second run-in shed.

17. 1:14:00
    Missing dimensions for the proposed pasture and shed

    Members said they cannot judge screening or impact without knowing how far a new pasture or run-in shed would extend toward the lot line, and warned that five ponies would not fit in the one existing shed. Clair agreed to map the maximum pasture and shed she might have in five years and to return with distances and tree counts.

18. 1:19:02
    Abutter Faith Baker on traffic and privacy

    Faith Baker of 20 Pound Road, co-owner with her fiance Robert Smith, said the letter she received mentioned one to four boarders and 10 to 20 lessons weekly. Her concern is not the riding itself but the traffic passing close to her house on the shared driveway, plus water quality in a small stream and manure handling.

19. 1:19:02
    Board declines to run the checklist without a plan

    Clair (?) asked whether the board could work through the checklist now and take up only the pasture question next month, and was told that would not work because a revised application has to be reviewed as a whole. She said she had hoped to start teaching in the spring and was concerned about going another month, and a member replied that how quickly it goes depends on the detail she brings.

20. 1:24:24
    Fencing, abutter notice, private road costs; application tabled

    Baker suggested a stockade fence or similar buffer as a possible condition, and the board asked Clair to consider it in her application. Because Pound Road is private and not maintained by the town, abutters share grading and plowing costs and the board asked for any road maintenance agreement; Bob Libby was named as the person to ask. The application was tabled to March and both parties were asked to talk.

21. 1:24:24
    Whether riding lessons count as agriculture

    A member recalled a decision in another town upholding a board's finding that riding lessons and boarding were animal husbandry, and raised whether the pasture area is part of the business application at all as opposed to the riding ring. It was left as something to consider when the application returns.

22. 1:29:39
    Earl Kandle (?) back lot application

    The applicant returned on a back lot division, for which the board has no printed checklist and works straight from the ordinance. A 2003 approval had already created a front lot and a back lot; he now wants to create a second back lot out of his 20 acres while keeping a buildable lot at the rear.

23. 1:34:54
    Right of way ownership and deed history

    The front lot owner holds the road frontage and part of the right of way, which the applicant had to deed over on his lawyer's advice, and the ordinance excludes right of way land from lot acreage. He described buying two 10 acre lots in 1975 and later buying his former wife's 10 acres, and the board asked him to check that his deeds reserve and reference the right of way.

24. 1:40:10
    Plan dimensions and the word subdivision

    The right of way frontage was read off the plan as 348.99 feet and the board checked that a 300 by 200 foot buildable area fits within the proposed lot. Members noted the surveyor had labelled the plan a subdivision, which is technically how any division is described but is unfortunate wording here.

25. 1:45:25
    Acreage on the plan does not add up

    The lot areas shown on the plan together with the 1.94 acre right of way total roughly 22 acres while a note says the entire parcel contains 20.24 acres, so the board concluded there is a math mistake. The back lot has to be a full five acres excluding the right of way, and the surveyor will need to relocate a pin; the item was held to March.

26. 1:50:32
    What the back lot plan still needs

    The board listed changes for the surveyor: the plan must be titled as a plan of private way, carry a signature block, show a drainage plan and meet the road standard, since the way must be planned even though it need not be built. A road maintenance agreement is also required; the sample the applicant supplied was drafted for Wisconsin.

27. 1:55:43
    Easement mechanics and who signs the maintenance agreement

    Members walked through how the right of way should be accepted and reserved when the next piece is deeded out, with an easement granted over the front piece, and asked to see the right of way deed. They debated whether the front lot owner must sign the maintenance agreement given that the way crosses his land but he has no obligation to maintain it.

28. 1:55:43
    Forestry and legislative handouts from the code enforcement officer

    The code enforcement officer introduced material on state forestry standards and a legislative update allowing appeals of setback encroachment for ADA access ramps. He explained that because Durham has not adopted the state forestry guidelines he cannot call in a state forester to review logging jobs, and all he can check is whether a notice of intent to harvest has been posted.

29. 2:00:59
    Three forestry options and the shoreland zoning gap

    Of turning enforcement over to the state, a joint enforcement agreement, or continuing as now, the code enforcement officer recommended the joint agreement so the town keeps a say and stays in the loop through his office. He noted Durham has no shoreland zoning ordinance of its own, so the state imposes it and anyone building in the shoreland zone must first obtain a DEP permit by rule.

30. 2:00:59
    Kandle's (?) request not to re-notify abutters

    The applicant asked whether he had to notify abutters a third time for a continued application, saying he had gone door to door and used registered mail already. Members said they saw nothing in the ordinance requiring re-notice for a continued hearing but did not vote on it, and he offered to come back next month and be told then.

31. 2:06:09
    Forestry standards to go to town meeting; road committee wording

    The board agreed any adoption of state forestry standards would have to go to town meeting, so it would make a recommendation to the selectmen for the warrant, and asked the code enforcement officer to bring proposed wording. He also flagged that the land use ordinance and the subdivision ordinance describe the road committee differently, three members in one and four in the other, and that state law requires road acceptance by the legislative body rather than the committee.

32. 2:11:12
    January minutes: wording of the noise condition

    Reviewing the January 7 minutes, the board rewrote the recorded motion so it reads that the criterion is met and that the permit be granted conditional on continuing to meet the noise standards in the ordinance. Members wanted it clear in writing that these are conditions of the permit and not merely findings.

33. 2:16:26
    Burden of proof on noise and odor complaints

    The code enforcement officer said a complainant must back up an accusation with something demonstrable, such as decibel readings, rather than a phone call saying there is too much noise. A member countered that investigating land use violations is his job and compared it to reporting a crime, and the discussion was left open so the meeting could end.

34. 2:16:26
    Corrections to the January minutes and approval

    Corrections included a typo in a reference to Robert Burnham's garage, which has one lift and two bays, a missing letter in an item heading, and adding that at the January meeting Mike Sunberg (?) was heard through his attorney, Elizabeth Bopple (?) of Lambert Coffin (?) in Portland. The minutes were then moved for approval as amended and the board turned to adjournment.

35. 2:21:50
    Chairman and vice chairman; adjournment

    Before adjourning the board turned to nominating a chairman and vice chairman, and members discussed whether to wait for an absent member and noted an open seat on the board. The recording ends mid sentence with the officer nominations unresolved.

What was decided

• 0:02
  Move the minutes and other routine business to the end of the meeting so the residents and applicants present could be heard first.passed
• 26:40
  Motion to find the Burnham conditional use application complete. Seconded and the vote called; no tally is audible, but the board went straight on to work through the criteria, which follows a finding of completeness.passed
• 53:10
  Motion to reconsider the board's earlier decision on criterion L, the groundwater criterion, in the Burnham application. Seconded and the vote called; no tally is audible, but the mover proceeded immediately to the substituted motion on criterion L.passed
• 53:10
  Motion to find criterion L met, that is, that the use will not alone or in conjunction with existing activities adversely affect the quality or quantity of groundwater, and to make that same requirement a condition of the permit. Seconded and the vote called; no tally is audible, and the chair then checked the objecting member was satisfied and moved on.passed
• 58:26
  Motion to table the Burnham application one more time and to require a written planting plan showing distances, existing trees and proposed plantings, submitted nine days before the next meeting.tabled
• 58:26
  The applicants agreed to extend the time for the board to decide their application until the March meeting.passed
• 1:24:24
  Table Ariel Clair's conditional use application for riding lessons at 12 Pound Road until she returns with a plan showing the proposed pasture, run-in shed, distances and screening.tabled
• 1:45:25
  Motion to table the back lot plan until March so the surveyor can correct the acreage figures and relocate the pin for the five acre lot.tabled
• 2:16:26
  Motion to approve the January 7, 2015 minutes with the changes discussed. Seconded and the vote called; no tally is audible, and the chair then asked for another motion.passed
• 2:21:50
  Motion to adjourn, seconded by Mike (?); the recording ends before any result is stated and before the chairman and vice chairman nominations were taken up.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.

Motions the minutes record

The town's own written account of what was decided, taken from feb_4th_2015.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.

• find that the application checklist is completecarried

  Moved by Anne Torregrossa, seconded by Todd Beaulieu

• reconsider “L” on the Application Approval Criteria which is “Will not, along or in conjunction with existing activities, adversely affect the quality or quantity of ground water.” Mike

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick; no outcome recorded

• find criteria in “L” is met so it “will not, alone or in conjunction with existing activities, adversely affect the quality or quantity of ground water”, however proposes to make “will not, alone or in conjunction with e…

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick; no outcome recorded

• find that the applicants submit a formal plan showing distances and additional plantings of what and where additional items will be planted. Mikecarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• Table based on receipt of a further detailed landscape plan. Mikecarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• table until next month pending receipt of the proper survey, which will include the signature block for the Board members to sign in order that it be recorded. Mikecarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• Approve the January 7th 2015 Minutes with changes as discussed. Mikecarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• Adjourn at 9:25 p.mcarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

Worth knowing

• 42:30
  The terms the board is working from for the Burnham repair business are four parking spaces with a maximum of six vehicles outside the garage, and no operation between 9:00 p.m. and 6:30 a.m. under page 49 of the ordinance. Because Durham has no noise ordinance, the noise standard only binds as a condition of the conditional use permit.
• 58:26
  Material for a hearing must be filed nine days before the meeting, and the town does not mail it out: abutters were told it is their responsibility to come to the town hall and ask for whatever has been filed, and anything not there nine days ahead will not go before the board.
• 1:19:02
  Abutter Faith Baker worked the traffic out loud: at up to 20 lessons a week, with a car going in and out for each, she put it at about 80 trips a week past her house, before boarders and ordinary household traffic, on a private way the abutters pay to grade and plow themselves.
• 2:00:59
  Durham has no shoreland zoning ordinance of its own and is one of 28 Maine towns that never adopted one, so the state imposes it: anyone building in the shoreland zone must get a DEP permit by rule before the code officer can issue a building permit. The board was asked to consider adopting state forestry standards, which would have to go to town meeting.

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: 6 passages of motion language, against 10 decisions summarised.

Elsewhere

2015-03-04 Planning Board →All meetings