Planning Board Meeting ~ January 8, 2025

2025-01-08 · Planning Board · 2:47:18 · watch on YouTube →

The planning board opened its year by electing officers and then spent the meeting on two land use articles the town wants to bring to town meeting: an amendment allowing contract zoning, and performance standards for battery energy storage systems. Town attorney Kristen Collins gave an introduction to contract zoning, covering how it differs from a waiver and from an overlay zone, what a town may and may not ask a developer for, and the fact that any agreement would have to be approved by a town meeting vote. Town planner George Thebarge then presented a draft set of battery storage standards built from a Carver, Massachusetts ordinance and New York state fire safety recommendations, and the board worked through the draft section by section without finishing it. The size threshold that would trigger mandatory contract zoning for solar and battery projects was left undecided, with the board leaning towards square footage to match the existing solar ordinance rather than the megawatt figure in the draft. The board moved to meet again on January 15 at 6:30 pm at the fire station to continue the standards discussion and take public input.

What was discussed

1. 0:24
   Call to order and election of officers

   The meeting began at about 6:30 pm with five members present and the Pledge of Allegiance. John Talbot was nominated and seconded for chair and stepped aside while Vice Chair Juliet Caplinger took the vote; he said afterwards that he abstained. Juliet Caplinger was then nominated for vice chair.

2. 0:24
   Correction to the previous meeting's minutes

   Allan Purinton raised one change on page nine, item six: a motion by John Talbot was written as a motion not to deny the waiver request to allow the access road to remain gravel, when the board had in fact denied it and a letter had been sent to the applicant. There were no amendments to the agenda.

3. 5:49
   Town facilities focus group and public workshop

   George Thebarge announced a focus group meeting in the fire station room on Monday the 13th at 6:00 pm, limited to invited representatives of the groups that use the fire station meeting room, the Eureka Center and the town offices. A charrette-style event open to the community follows on Tuesday the 21st at 6:00 pm at the Eureka Center, working from a citizen survey and the focus group results. Neither was expected to be televised.

4. 5:49
   Public comment and business items

   No residents or non-residents came forward for public comment, and there was no continuing or new business.

5. 5:49
   Two land use articles for town meeting

   Chair John Talbot laid out that two possible articles are in progress: contract zoning, which the select board is leading and which the town attorney would introduce, and the battery storage standards, which are the planning board's responsibility. He said he did not expect the standards to be finished and had already reserved the hall for a continued meeting a week later.

6. 10:53
   Town attorney's overview of contract zoning

   Kristen Collins introduced herself as town attorney since the summer and said she had circulated a draft amendment ahead of a select board workshop the following week. She described contract zoning as a tool that gives a town the ability to ask more of an applicant in exchange for flexibility, and gave examples of public access, road improvements and utility extensions obtained that way. She noted that because it amends the land use ordinance, the statutory public hearing must be held by the planning board even if the select board initiated the change.

7. 16:26
   Waivers, and three ways a town can use contract zoning

   Asked how contract zoning differs from a planning board waiver, Collins said a waiver is limited to operational hardship and is much narrower. She described three uses: available generally to any applicant, restricted to particular parcels, or mandated for certain uses, citing Brunswick, which requires it for industrial and some renewable energy facilities. Her draft would make it available townwide for any parcel, with final approval by the voters at town meeting.

8. 22:10
   Residential vesting and concern about overriding the ordinance

   Collins said that under law changes last year, a development including even one residential unit is vested under the ordinance in place on the day the application is filed, while commercial and industrial standards can still be applied retroactively up to 45 days after site plan approval. A board member said it was concerning that contract zoning could override requirements such as lot size that the board had worked to put in the ordinance.

9. 27:35
   Timing, dual-track review and overlay zones

   Collins said an applicant could pursue site plan review and the contract zoning process on dual tracks at their own risk, but that the board could also require the contract zoning approval first. Asked by Brian Lanoie (?) how this differs from an overlay zone, she said an overlay applies fixed standards to named parcels while contract zoning adds the negotiation, and that a project would still be subject to the comprehensive plan.

10. 32:47
    What the town can ask for, and payments in lieu of taxes

    Collins said requests must have a rational connection to the development and be about physical development, giving sidewalks, a traffic light or fire protection equipment as examples, and that the town could not simply ask for cash to offset taxes. On payments in lieu of taxes she said Maine does not allow them to be mandated as a land use standard, though developers often offer them.

11. 38:05
    Why the town is looking at contract zoning

    George Thebarge said the impetus was the prospect of a large-scale industrial battery energy storage system, and that the town attorney's opinion is that such a system is a permitted use as essential services through most of the town, including anywhere along the power line. He said the ordinance already allows commercial and light industrial use nearly anywhere, leaving only the conditional use criteria as leverage, and Collins added that those criteria are subjective and vulnerable to legal challenge.

12. 43:38
    Whether contract zoning should be limited to battery storage

    A board member said the select board had asked that this be looked at strictly for battery storage and that limiting it that way is a mistake, citing Scarborough's residential contract zoning ordinance and Cumberland's commercial one. Collins said the framework, once in place, can later be made mandatory for other categories of use without going back to town meeting for the framework itself. It was also noted that if contract zoning passes while the moratorium is still in effect, an applicant could seek to use it.

13. 48:44
    Table of uses: solar drawn into mandatory contract zoning

    A member noted that the draft table of uses in the packet would require both solar farms and battery systems above a certain size to go through contract zoning. Collins said the proposal as it stands would mandate contract zoning for solar projects of one and a half megawatts and up; a lower figure of one megawatt was given later in the meeting, and the two do not agree.

14. 54:26
    Solar threshold questions and a renewable energy definition

    A member said she had not realised solar was being pulled into the mandate and asked why the board could not focus on batteries first, given the solar ordinance is already adopted. George Thebarge said the Conservation Commission had been working on where solar is and is not appropriate, that the current solar ordinance sets no limit on project size, and referred to a 500-acre solar farm proposed in Greene. Collins offered a definition of a renewable energy generating facility covering wind, solar, geothermal and biomass that could replace the solar-specific entry, and the chair held the wind, geothermal and biogas discussion for later.

15. 1:00:15
    Draft battery energy storage standards presented

    George Thebarge presented slides prepared for the meeting, describing the work as an extension of the solar standards developed with the Conservation Commission. He showed the project under construction in Gorham, which he put at 5 acres and 175 megawatts, and said the Gorham planning board had only site plan review standards to apply. He said he used a Carver, Massachusetts ordinance as a template because it reflected the New York governor's task force recommendations on fire safety, that he is not an expert, and that the town has not funded a consultant, though the fire chief and code officer have given input.

16. 1:06:01
    Moratorium term and the size of these systems

    A member said the town is under a 12-month moratorium with a possible six-month extension; George Thebarge disagreed, saying it is a six-month moratorium enacted at the November 19 special town meeting, extendable by the select board for six more months without returning to town meeting, for a total of one year, which is the statutory limit. He then went through relative sizes, from a residential unit to a container-sized box of about 300 square feet holding roughly one megawatt hour, and the codes that apply to each part of an installation.

17. 1:11:42
    Order of contract zoning, standards and site plan review

    The board worked through the sequence: the town would first approve the contract zoning framework and the standards, then a specific project's contract zoning at town meeting, and only then could the planning board approve a site plan. It was confirmed that a project approved through contract zoning could still be denied at site plan review if it fails the performance standards.

18. 1:16:43
    Standards before the moratorium, and code officer capacity

    George Thebarge said that regardless of what happens with contract zoning, the town needs standards in place before the moratorium expires, and that the warrant is being laid out with the battery standards first and contract zoning after. He said the code enforcement officer reviews residential work and is not in a position to review electrical standards of this type, but that under the peer review system the developer pays for a consultant, and state inspectors are called in at construction.

19. 1:22:04
    Applicability and battery technologies (section 5.7.2)

    The chair said item six of the applicability section, covering other battery technologies, reads as contradictory, and members were not satisfied it captures a technology not yet invented. George Thebarge agreed to look at the wording again before the next meeting.

20. 1:28:00
    Tier thresholds and access road width

    Under the draft, a tier one system of about half a megawatt hour or less would not be subject to the decommissioning plan, fencing, buffering and similar requirements, while tiers two and three are treated largely the same. On general standards, the fire chief had questioned whether the proposed access road width and surfacing are adequate for the weight of fire apparatus; members said the road should be built to a town standard and asked for the chief's specifications before the next meeting.

21. 1:33:34
    Access around the units and Knox box wording

    Members said the requirement for access to all four sides of each enclosure should not be qualified by "where practical", and that the draft should use the Knox box terminology already used in the solar standards. George Thebarge said the fire chief would have attended but expected contract zoning to take the evening, and would be available on the 15th; he also noted that whether or not contract zoning passes, a peer review escrow would let the board hire a fire safety expert.

22. 1:38:53
    Clearance, height and visibility

    Juliet Caplinger asked whether the draft covers ongoing maintenance of vegetation and screening, which was taken from the current solar ordinance. The board discussed the 30-foot clearance around units against a 100-foot setback and a 50-foot buffer, and the height of the units, given as about 9 feet and possibly stacked. Members moved towards requiring that the units not be visible from the road or adjoining properties rather than fixing a height limit.

23. 1:44:34
    Setbacks, fencing and the wildlife gap

    A member said his concern is that Gorham and Rumford sited these in industrial parks next to a power plant, a paper mill and a dam, and Durham has nothing comparable; limits of a half-mile setback or a one-acre cap were floated and not pursued. On fencing, the solar ordinance's six-inch gap at the bottom for wildlife was questioned on the grounds that a battery site is an industrial yard rather than a vegetated field.

24. 1:49:56
    Fence gap, buffer width and landscape design

    The board settled on leaving the wildlife gap out of the battery standards and letting an applicant propose it. On screening, the draft carries the solar ordinance's 50-foot landscape strip, and members discussed raising the 8-foot planting height given units of about 9 feet, with George Thebarge noting that buffers are planted in mixed heights and grow about a foot a year. Members supported requiring a landscape architect and a view analysis, as in the solar standards.

25. 1:55:08
    Noise limit wording and decommissioning notice

    Members read the phrase limiting any increase to less than 55 decibels as possibly allowing 55 above an ambient level of about 30, and agreed to strike the words so that the 55 and 45 decibel limits in section 5.20 apply as caps. On decommissioning, the draft gives 20 days to notify the code officer; members asked what penalty applies, and George Thebarge said enforcement would be a land use violation with penalties set by the court up to the statutory limit.

26. 2:00:29
    Decommissioning fund and inflation

    Members asked whether the requirement to maintain a decommissioning fund is strong enough over a 25-year life, and pointed to the escalator in the solar ordinance, recalled as revisited every five years, as a model. They also linked the required list of contingencies for removing an intact system to the funding amount.

27. 2:05:58
    Operations manual and emergency operations plan

    The board discussed who should hold the operation and maintenance manual and in what form, and agreed to ask the fire chief and the code officer what they want. The emergency operations plan was flagged as significant because it requires a 24-hour contact and someone able to reach the site within two hours.

28. 2:11:28
    Escrow, change of ownership and UL standards

    It was confirmed that the peer review escrow comes through the existing site plan review process and that the select board can set a different escrow amount for these projects in the fee schedule. Members were satisfied with 14 days to notify the code officer of a change of ownership, and discussed what happens as UL standards such as 1741 and 1642 are revised, concluding that a peer reviewer would catch it.

29. 2:16:34
    When a system counts as abandoned

    The draft treats a system that ceases to operate for more than 90 days as abandoned. Marc Derr argued that a site being repaired after a fire or having units replaced is still in operation, and the board agreed abandonment should mean the owner has walked away, while keeping a short window because of the safety risk.

30. 2:21:39
    Next steps and the January 15 meeting

    George Thebarge will make the changes discussed and post a revised draft and the presentation on the town website, with material circulated to members ahead of time. The chair moved to meet on January 15 at 6:30 pm at the fire station to continue the discussion and take public input, written or in person. It was noted that the Deer Creek (?) applicant missed the deadline for a January review and would be heard on February 5.

31. 2:26:47
    Thresholds for solar and battery in the table of uses

    The board reviewed the proposed table of uses, which would require contract zoning for large-scale solar and for battery systems in the districts where they are allowed, with the select board and planning board reviewing against the comprehensive plan before it goes to town meeting. Members said one megawatt is probably too small a trigger for solar and that the draft's megawatt figure does not line up with the solar ordinance, which uses 20,000 square feet of panel surface for large scale.

32. 2:32:37
    Square feet against megawatts

    At Juliet Caplinger's suggestion the chair invited people in the audience to speak. Someone who had worked on the solar ordinance explained that square footage was chosen so that a more efficient project on less land is not penalized, and because acreage is easier for voters to picture than megawatts. Members then leaned towards keeping square footage for consistency, and towards defining a tier threshold rather than a behind-the-meter or front-of-the-meter test for battery systems.

33. 2:43:37
    Schedule for reaching town meeting

    The chair set out the timing: public input on the 15th, a revised draft, a final draft voted on February 5, then to the select board, with the formal public hearing not possible until about the 5th or 7th of March because of the 30-day requirement. He said the standards would have to be with the select board by March to reach town meeting this year.

What was decided

• 0:24
  Nomination of John Talbot as chair, moved and seconded, with a show of hands taken by the vice chair; Talbot said he abstainedoutcome unclear
• 0:24
  Nomination of Juliet Caplinger as vice chair; the chair recorded four in favor and one abstentionpassed
• 5:49
  Motion to accept the meeting minutes as amended by Allan Purinton, correcting page nine item six to read that the motion was to deny the waiver request for the gravel access roadoutcome unclear
• 54:26
  Request to take up whether solar should stay in the contract zoning mandate, jointly with the Conservation Commission; the chair said that was not the discussion before the board tonighttabled
• 1:55:08
  Agreement, by discussion rather than a formal vote, to strike the words about limiting any increase from the noise provision so that the 55 and 45 decibel limits in section 5.20 read as capspassed
• 2:21:39
  Motion to hold a meeting on January 15 at 6:30 pm at the fire station to continue the battery storage standards discussion and take public input, written or in person; moved, seconded and a show of hands calledoutcome unclear
• 2:38:14
  Size threshold that would trigger mandatory contract zoning for solar and for battery systems left for the next meeting, with members asked to come back with a figuretabled

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

• 38:05
  The town attorney has advised that a utility-scale battery energy storage system is currently a permitted use in Durham as an essential service, in most of the town and anywhere along the power line, and is a conditional use in the shoreland and resource protection zones. That opinion is the reason for the moratorium and the contract zoning proposal.
• 1:06:01
  The moratorium's length was disputed at the table. A member said the town is under a 12-month moratorium with a possible six-month extension; George Thebarge said it is six months from the November 19 special town meeting, extendable six months by the select board, one year being the statutory maximum.
• 48:44
  Two different solar thresholds were quoted for the table of uses, one and a half megawatts and one megawatt, and they do not agree. The board also noted that either figure conflicts with the adopted solar ordinance, which measures large scale as 20,000 square feet of panel surface, and leaned towards square footage.
• 2:43:37
  To reach town meeting this year the standards would have to be voted in final draft on February 5 and be with the select board by March, because the formal public hearing needs 30 days' notice and could not be held before about March 5.

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: 4 passages of motion language, against 7 decisions summarised.

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