Planning Board Meeting ~ April 1, 2026

2026-04-01 · Planning Board · 2:28:51 · watch on YouTube →

A long Planning Board meeting covering three applications and two ordinance amendments. The board adopted a meeting continuation policy drafted by George Thebarge, then spent most of the evening on the substantive review of the Durham Heights cluster subdivision, now 19 lots with 67.2 acres of open space after the applicant bought the land the previous owner had been retaining. Much of that discussion was about tree clearing already done on the site without an approved plan, about the absence of erosion controls on the cleared ground, and about a town attorney opinion received that morning on what counts as contiguous buildable area. The board accepted a set of conditions for Durham Heights, including peer review by Gorrill Palmer, development pads for eight named lots and erosion controls with a report within 30 days. It then granted conditional use approval to reactivate the Jackson gravel pit on Cushing Road, adding a wetland delineation as a condition, and approved the Alder Way maintenance agreement. Ivy Ridge was pushed to a special meeting on April 8 under the new continuation rule, and the board approved the tree clearing and cannabis land use ordinance amendments.

What was discussed

1. 0:40
   Opening and the draft meeting continuation policy

   Brian Lanoie opened the April 1, 2026 meeting with all members present. George Thebarge presented a draft continuation policy modelled on Falmouth and other towns with long agendas: at a set point the board reviews where it is and decides whether to take up any new items after a cut-off time, so applicants paying consultants to sit and wait know whether they will be heard. He said that in his seven years the board had not reached that point but that the current agenda was approaching it, and that an item can be carried over or a special meeting scheduled, with the applicant asked to agree if a 30 or 60 day decision deadline is affected.

2. 6:23
   Town planner's report and ordinance timetable

   George Thebarge said his monthly report summarising the board's actions goes to the select board and the town through the town manager. The land use ordinance amendments go to the select board on the 28th, with a public comment meeting in May before the June town meeting.

3. 6:23
   Public comment on accessory dwelling units

   A resident of 52 Shiloh Road, who is selling a house on Hallowell Road with an accessory dwelling on the property, asked whether the ordinance amendments bring accessory dwelling unit provisions into line with state law. She was told they do.

4. 6:23
   Durham Heights: changes since the last meeting

   The applicant's civil engineer, from Site Lines (?), said the applicant had come to terms with the previous owner to acquire the section that was to be retained, so the plan goes from 18 to 19 numbered lots and the open space from 44.9 to 67.2 acres. Lots were redesigned so steep slopes and wetlands sit at the sides rather than bisecting building areas, stone walls were mapped, and a soils map shows only one very poorly drained soil type on the property, entirely within the open space. A letter and plan were sent to Casella about serving the private road roughly two weeks earlier and no written response has come back.

5. 16:42
   Plan changes in detail

   The area beside lot one was carved off into open space, lots were pulled back from the abutting subdivisions to create separation, and lots five and seven were reconfigured from three lots to give room for a driveway, building and septic. A new lot 17 was created and the previous lot renumbered 19. The stormwater pond at the end was shifted and converted from a grass underdrain soil filter, which had grown too large to work well, to a wet pond.

6. 22:24
   Test pits, soils and the hydrogeologic study

   The engineer explained that because the project needs a DEP permit, lots with a lower soil classification require multiple test pits a set distance apart to confirm a septic system will fit. The septic designer, Alex (?), had been back out; ten test pits were done for an earlier 14-lot concept, four or five more for the 18-lot version, and secondary pits were then required for certain lots. The hydrogeologic study required by DEP is under way.

7. 27:43
   Tree clearing already done on the site

   The board pressed on what had been cleared and why. Max Stoney, owner of Stone Arch, said clearing was done months ago and has stopped, that pockets were cleared to get an excavator in for test pits, and that the entrance and road area were cut. A member said clearing trees to get equipment in for test pits is one thing and clearing for the project before a permit is another, and asked whether much more clearing would be needed; the engineer said yes on the individual lots, though the road is largely in.

8. 32:44
   Whether the clearing was a violation

   Heather Roy, of the project's administrative team, said the message the applicant took from earlier meetings was that clearing in frozen conditions and within the bat window was best. A member clarified that the timing is right but the permit has to come first. The chair said there is a lot of clearing out there that probably should not have happened without an approved plan, pointed to ordinance section 6.13, and noted the town attorney's view that clearing done for the purposes of the development could be a violation.

9. 32:44
   The road alignment and the retained land

   Heather Roy (?) argued that before the retained land became an issue, the first house was to be built for the previous owner on that back lot, that the applicant held an entrance permit, and that the driveway was going in on that alignment regardless. The chair said a back lot would have been a different situation that might not have met the back lot requirement, and moved the discussion on.

10. 38:01
    Inland Fisheries and Wildlife consultation and vernal pools

    A member said the ordinance requires consultation with the Maine Department of Inland Fisheries and Wildlife and that the department had seen only partial clearing limits, not the full plan, with bats the concern. The engineer said the full plan goes to the department through the DEP review and that whatever comes back will be provided. On vernal pools, he said the wetland biologist found none on the property, so there are no data sheets to send.

11. 38:01
    Forestry permit and a missing stone wall

    A member asked about a permit tagged to a tree at the end of the road; the applicant said it is the state forestry notification loggers file when cutting above a threshold. A member then said a stone wall running north to south through the lots and across the road does not appear on the existing conditions plan, having been walked over during the site visit, and asked for it to be added.

12. 43:01
    Stormwater easements and pond types

    The drainage easements would run between the homeowners association and future lot owners; members considered making the town a third party and decided against it. The engineer explained the difference between a grass underdrain soil filter, dry most of the time and draining within 24 to 48 hours, and a wet pond with a permanent pool 6 to 12 feet deep, lined with PVC or clay, with a flat safety bench around the perimeter so anyone falling in can climb out.

13. 48:12
    Fire pond

    The wet pond's permanent pool was oversized to provide storage for fire protection. The board said it needs to know whether the fire chief accepts that solution, and told the applicant it is up to him to meet the chief; the alternative would be a separate fire pond in front of the wet pond.

14. 48:12
    Wooded stormwater buffers

    The engineer said DEP best management practice for these soils and slopes gives a 54-foot wooded buffer, deed restricted and marked in the field with no-clearing signs, and that these buffers need no maintenance and remove pollutants more effectively than a structural alternative. A member said the buffers are restrictive and worried that owners would expand into them. The engineer said that because the project is DEP qualified, DEP enforces the buffers, and described a case where an owner who cleared was given the choice of a fine of about $85,000 or replanting about 80 trees, and replanted.

15. 53:37
    Rural character and the cluster layout

    Heather Roy (?) said she sells this type of home and that at Deer Creek Crossing every buyer cited the natural wooded buffer, with the subdivision selling out in nine weeks apart from spec houses. She said the road was moved away from the abutting neighbours to avoid the complaint heard repeatedly about Deer Creek, and that the cluster format preserves 67.2 acres permanently, including developable land rather than only wetland. The chair said the board is implementing road buffers in the pending ordinance updates.

16. 58:54
    Transformers, and erosion control on the cleared ground

    Four to five transformers are shown along the road, with service running underground from a single pole; the engineer noted CMP will produce its own plan once there is an approval. A member said there are no erosion control measures on the cleared ground now and the site may sit for up to a year while state permits are obtained. The applicant agreed to walk the site with the engineer and install silt fence or erosion control mix berms, and the board decided to make it a condition with a time frame rather than wait for permitting.

17. 1:04:08
    Acreage and the project description

    The board noted the project description still refers to land retained by the owner, which the engineer said is erroneous. The purchase and sale covers 76 acres with a further 17 acres under contract, making 94 acres in total, and the previous owner would have to buy a lot like anyone else.

18. 1:04:08
    Town attorney opinion on buildable area

    George Thebarge reported an opinion received that morning that each building site must contain 40,000 contiguous square feet excluding wetlands, steep slopes and very poorly drained soils, and that only the exclusions specifically stated in section 4.1.1A may be deducted by the board. Lot three has about 43,000 square feet of minimum contiguous buildable area, and lot eight is the smallest. Members and the applicant discussed whether setbacks apply to driveways, with George Thebarge saying setbacks generally do not, though buffers may be different and DEP may look at it.

19. 1:14:24
    How much lot detail to require

    George Thebarge said the attorney's opinion allows the board to require detailed site plans for lots whose suitability concerns it. Max Stoney and Heather Roy (?) argued that fixing house locations and orientation is too prescriptive for Durham and would prevent buyers positioning houses for solar. The board settled on requiring a development pad, a driveway entrance and the first stretch of driveway, plus test pit, well and septic locations, rather than a building footprint, with minor shifts during construction reviewed at staff level.

20. 1:20:07
    Timeline and the draft conditions of approval

    The ordinance allows six months from preliminary to final approval, extendable on written request, which George Thebarge said exists to stop an applicant returning years later under superseded ordinances. He explained that the draft conditions line up with the Article 6 standards, and that a preliminary approval says the board is confident the project can meet them, with each item to be addressed at final.

21. 1:25:18
    Scope of the Gorrill Palmer peer review

    The board added peer review of the building envelope calculations and of the hydrogeologic report to the existing review of road engineering, utilities, stormwater and cost estimates. The engineer suggested delegating stormwater to DEP to avoid conflicting reviewers; members said the town has the same standards and wanted to be consistent across applications, and kept it in. George Thebarge said Gorrill Palmer does not do general wetland reviews and is used where a boundary is in dispute, as on Day Road.

22. 1:36:02
    Conditions of approval as amended

    George Thebarge read the sixteen conditions: peer review, infrastructure cost estimates, detailed development pads for lots 1, 3, 4, 6, 8, 10, 15 and 19, the six-month final submission deadline, DEP permits, the erosion and sedimentation plan, clearing limits on the final plan, road name and street addressing, road engineering, cost estimates, the DEP stormwater plan and easements, homeowners association documents, cluster concept approval, a performance guarantee, and erosion control measures implemented with an engineer's report within 30 days. The board added verification of the missing stone wall, a meeting with the fire chief on the fire pond, the updated Inland Fisheries and Wildlife consultation, and the Casella letter.

23. 1:41:24
    Jackson gravel pit: conditional use application

    Brett Fossy, VP of operations, presented with a colleague addressed as Dean (?) for the company the recording renders as Crooker (?). The application is to resume gravel and sand operations within an area grandfathered through DEP before the 1970s, entered across from 80 Cushing Road, which has not been worked in more than 20 years. The intent is to mine only within that boundary and its setbacks, including a south-eastern section that is part of the pit but was never cleared, and possibly to file a notice of intent with DEP later to reach the back corner.

24. 1:52:23
    Wetland delineation and groundwater

    A member asked whether a wetland delineation had been done for the never-mined eastern area, near a pond and wetlands to the north-east; the applicant said no and agreed one would be needed. On groundwater, the standard is 5 feet above the water table and the applicant has not established where it is; the board asked for test pits wherever excavation will occur, and a member noted the pit sits above an aquifer.

25. 1:57:55
    Recusal, site visit and findings of fact

    A member said he is friends with Justin Johnson and asked whether he should recuse himself; George Thebarge explained the test is whether there is a financial interest and whether the member can review without bias, and that with no financial interest and the board and parties accepting, recusal is not required. The board agreed no site visit was needed. It then took the conditional use criteria one at a time, moving and voting separately on each of the eight findings.

26. 2:03:01
    Abutter notification and whether to hold a public hearing

    A member questioned how much the neighbourhood knew, given the pit has been dormant for 20 years. George Thebarge said DEP grandfathering does not exempt the applicant from the town's conditional use permit requirement, and the applicant produced the abutter notification receipts. With no abutters present to object, the board did not hold a public hearing.

27. 2:08:16
    Gravel pit conditions and approval

    George Thebarge said the conditions mirror the Article 14 gravel pit provisions: water supply setbacks including wetlands, boundary and road setbacks, buffer strips to state specification, erosion and sedimentation controls, groundwater protection established by competent technical data, bank slope steepness, hours of operation, inspections and records available to the code officer, access control for safety, annual registration, reclamation and compliance with state law. The board added a wetland delineation as a further condition, to be submitted to staff and shown on the site plan, and then moved to grant conditional use approval for the reactivation of the Jackson gravel pit on Cushing Road.

28. 2:13:36
    Continuation rule applied, and Ivy Ridge rescheduled

    With the agenda running long, the board used the continuation rule it had adopted at the start of the meeting. It polled availability and set a special meeting for Wednesday April 8 to take Ivy Ridge, keeping the Alder Way maintenance agreement and the ordinance items for that night.

29. 2:19:14
    Alder Way maintenance agreement

    George Thebarge explained that the way was established before the current standards, and that the town attorney advised the code officer that making lot 15E buildable required the existing deeded easement to be upgraded. The owner worked with the code officer and the road commissioner to improve the driveway serving lot 15C, and a draft maintenance agreement addressing the required component parts was submitted. Sue Linick (?), the realtor for the owner, who is her son, presented; members said the code enforcement officer's three issues had been met and moved approval.

30. 2:24:27
    Cannabis and tree clearing ordinance amendments

    The board reviewed revised cannabis language following comments from local growers and an amendment on violation and enforcement for tree clearing in subdivisions, section 6.13. George Thebarge said the town attorney found that clearing before approval is not a waivable standard and cannot be handled as a procedural waiver either, because the procedural waiver provision only allows combining preliminary and final review. Members discussed where the line falls between access for test pits and clearing for development, noting that at Greystone the test pits were done with no road and very little clearing, and then moved to approve both amendments.

What was decided

• 6:23
  Adopt the Durham Planning Board meeting continuation policy drafted by George Thebarge.passed
• 1:36:02
  Accept the conditions of approval for Durham Heights as read by the town planner and as amended, adding verification of the missing stone wall, a meeting with the fire chief on the fire pond, the updated Inland Fisheries and Wildlife consultation and the Casella letter. The transcript records the motion and a second but no call for a vote.outcome unclear
• 1:57:55
  A member who raised a friendship with Justin Johnson need not recuse himself from the gravel pit application, there being no financial interest. Reached in discussion; no vote is recorded.outcome unclear
• 1:57:55
  Hold no site visit for the Jackson gravel pit application. Agreed in discussion; no vote is recorded.outcome unclear
• 1:57:55
  Eight separate findings that the applicant satisfied the burden of proof on each conditional use criterion: public health, traffic safety, public safety, environmental impacts, scale and intensity of use, noise and hours of operation, right title or interest, and financial and technical ability. Each was moved and seconded, and the transcript records a call for the vote on most of them.passed
• 2:08:16
  Add a wetland delineation of the site as a further condition of approval for the gravel pit, to be submitted to staff and reflected on the site plan.passed
• 2:08:16
  Grant conditional use approval for the reactivation of the Jackson gravel pit on Cushing Road, subject to the adopted conditions of approval.passed
• 2:13:36
  Under the new continuation rule, hold the Ivy Ridge item over to a special meeting on Wednesday April 8. Agreed after polling members' availability; no vote is recorded.outcome unclear
• 2:19:14
  Approve the Alder Way maintenance agreement.passed
• 2:24:27
  Approve the tree clearing in subdivisions administrative change to section 6.13 and the added cannabis language in the land use ordinance amendments.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

• 27:43
  A substantial amount of tree clearing, including the road, had already been done at Durham Heights without an approved plan. The chair said much of it probably should not have happened, and George Thebarge reported the town attorney's view that clearing done for the purposes of the development could be treated as a violation under section 6.13.
• 58:54
  There are no erosion control measures on the cleared ground, and the site may sit for up to a year while state permits are obtained. The board made installing them a condition, with the consulting engineer to submit a report within 30 days.
• 1:04:08
  A town attorney opinion received the morning of the meeting states that each building site must contain 40,000 contiguous square feet excluding wetlands, steep slopes and very poorly drained soils, and that the board may deduct only the exclusions specifically listed in section 4.1.1A.
• 1:41:24
  The Jackson gravel pit on Cushing Road has not been worked in more than 20 years. George Thebarge told the board that the pit's DEP grandfathering does not exempt the operator from needing a town conditional use permit, which is why the application came before the board.

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

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