Planning Board Meeting ~ July 5, 2023

2023-07-05 · Planning Board · 2:14:39 · watch on YouTube →

The board met to finish its substantive review of the final plan application for the Deer Creek Crossing subdivision, Map 7 Lot 32A, which it had tabled on June 7. Town planner George Thebarge reported that the Army Corps permit for the stream crossing had been issued, that peer reviewer Will Haskell considered his comments satisfied including the hydraulic calculations, and that the fire chief accepted the fire pond design. The board worked through the planner's outstanding items first, covering Army Corps and DEP documentation, the spillway detail on the underdrain soil filter, easements for the fire pond and for the off-site stormwater basin, the homeowners association documents, and the grading and erosion control plans for individual lots. It then made a separate motion and vote on each of the twenty statutory approval criteria, and ended by approving the final plan with conditions, 4-0, after adding two further conditions. Public comment was not taken on the application. The approval does not take effect until the board signs the recording plan.

What was discussed

1. 0:11
   Quorum, minutes and non-agenda items

   John Talbot confirmed a quorum with Tyler Hutchison, Juliet Caplinger, Allan Purinton and himself, plus alternate Brian Lanoie. The board accepted the minutes of the June 7, 2023 meeting. George Thebarge had nothing to report under informational exchange and no residents spoke.

2. 0:11
   Deer Creek Crossing final plan: town planner's summary

   Thebarge said the applicant had received the Army Corps permit for the stream crossing and that peer reviewer Will Haskell (?) reported all peer review comments satisfied, including the hydraulic calculations. The fire chief accepted the fire pond design and expects water in it year round. Thebarge said the stormwater treatment basin sits on land to be retained by Dean Smith and needs an easement so the homeowners association can go on to that land to maintain it.

3. 5:22
   Conditional agreement in lieu of a performance guarantee

   Thebarge explained that rather than an irrevocable letter of credit for the full cost of infrastructure, the applicant proposes to agree that no lots are sold and no building permits issued until the work is built and certified by the road commissioner and the town's inspector, or until the board later accepts a performance guarantee for the remaining work. He said that restriction has to be a condition on the plan recorded in the registry of deeds. He also said the fire pond easement gives the town the right to use and repair the pond but leaves maintenance with the homeowners association, not the fire department.

4. 10:51
   Voting eligibility and the planner's remaining comments

   Tyler Hutchison said he had watched the videos of the meetings he missed and was comfortable voting; Brian Lanoie, an alternate who joined a few months ago, could take part in discussion but not vote. Thebarge listed the items still outstanding: grading plans for lots 6 and 7, the updated homeowners association document, a spillway modification the peer reviewer had asked for that he could not find in the plans, and the individual lot erosion control plan.

5. 15:59
   Order of business

   The board agreed to settle the planner's outstanding questions first and then work through the approval criteria, on the view that there was no point starting the findings if the questions were unanswered.

6. 21:19
   Army Corps of Engineers documentation

   The board asked Charles Burnham for copies of what he sent the Army Corps and what came back, including General Permits 8 and 22, so that the file is complete for whoever does code enforcement rather than relying on a website. Burnham said the general permit runs to 51 pages and he had never printed it, but agreed to email the correspondence and the permit document to Thebarge. Thebarge added that unless a requirement is part of the board's approval the town has no authority to enforce it.

7. 32:06
   Spillway detail on the underdrain soil filter

   Burnham said he had removed a leader arrow that caused confusion and set the water quality volume elevation at the top of the impermeable liner, rather than adding the buried pressure-treated timber the peer reviewer described. Board members said they did not want to referee engineer against engineer and would follow the peer reviewer's recommendation, which allowed either pressure-treated lumber or concrete.

8. 37:17
   Spillway resolved, and the DEP stormwater question

   Burnham agreed to build the spillway as the peer reviewer recommended, and the board said that would be written into the conditions of approval. On stormwater, Burnham said he holds a DEP permit by rule and that a full DEP stormwater permit applies above thresholds the project stays under, the earlier five acres of disturbance having come from showing grading on all the lots.

9. 42:31
   DEP permit by rule and the stream crossing

   Burnham said the stream crossing, the removal of the existing crossing and the underdrain soil filter are all covered by one DEP permit by rule, which DEP updated with no additional fee. The board asked to see what was submitted and what came back for the record.

10. 48:02
    Removal of the existing crossing and enforceability of conditions

    The board could not find a note on the plans directing removal of the existing unpermitted stream crossing. Thebarge handed out an excerpt from the Maine Municipal Association planning board manual stating that conditions must be in the decision and on the face of any plan to be recorded to be enforceable, and the board made removal a condition to appear on the recorded plan.

11. 53:48
    Fire pond and stormwater easements

    The fire pond easement is surveyed, pinned and shown with bearings on the plan; maintenance sits with the homeowners association under its bylaws, while the town holds an easement to get in and use the pond. Both pond outlets sheet flow to a stream at the back of the site rather than on to house lots. The stormwater maintenance easement on Dean Smith's land was not in the plan set the board was given, and would need to be recorded separately as well as shown.

12. 59:41
    Conditional agreement and easement labels confirmed

    The board said it was content with the conditional agreement provided the note goes on the revised plan, and considered the stormwater permit question settled. It asked that the word 'proposed' come off the fire pond easement when the plan is recorded, since a recorded easement has to be the real thing.

13. 1:05:03
    Homeowners association documents

    Thebarge said the town worked with town attorney Jack Conway on a template declaration; the applicant first submitted his own version and later the town's, and the approval should reference the updated document rather than the earlier one. The board also asked for the lot 6 and 7 grading plans and the lot erosion and sedimentation control plan to be put in the packet, because material somewhere in the record but not referenced in the decision is not enforceable.

14. 1:10:46
    Setback lines, and the documents the decision rests on

    A dashed line that looked like an open space boundary was identified as the 100-foot stream setback; each lot has a building envelope and the code enforcement officer checks that building stays inside it. Thebarge then set out the decision document: part A describes the project and part B lists the submissions it is based on, and he read the number and revision date of each plan sheet.

15. 1:16:10
    When the conditions get confirmed

    Thebarge said the applicant would have to bring the corrected plan for the board to sign, possibly at the workshop meeting the following Monday, with a letter listing what had been done to meet each condition. The board then began the findings of fact, agreeing that anything still outstanding would be carried as a condition.

16. 1:21:16
    Findings of fact: pollution, water supply, erosion

    The board took the first three criteria in turn, each by motion, second, discussion and a show of hands. On erosion Thebarge reminded the board that the record includes the preliminary stage, when neighbours complained about drainage off the new road and the peer reviewer was asked to look at it.

17. 1:26:49
    Traffic and driveways

    Sight distance on Hallowell Road was described as about 700 feet and flat and straight, and the Department of Transportation accepted the intersection offset with Patriot Way; the new road is shown shifted toward the Timber Oaks property. A note on the recorded plan requires a 15-inch culvert in every driveway and a permit from the road commissioner. The board then took the sewage waste disposal criterion, supported by test pits for each lot.

18. 1:32:08
    Findings: solid waste, aesthetic and natural values, conformity, capacity

    Solid waste collection will be private and handled within the homeowners association. On natural values Thebarge reminded the applicant of the Army Corps requirement to notify if Native American remains are found. On conformity the board confirmed the project must comply with the current land use ordinance, and heard that the resource protection district change at April town meeting had pulled the feeder stream out of resource protection.

19. 1:37:53
    Findings: financial and technical capacity, surface water, groundwater

    The capacity motion referenced engineering cost estimates, the conditional agreement, peer-reviewed drawings and an inspection escrow fund. On surface water the board noted the project is not in the Runaround Pond watershed and not subject to mandatory shoreland zoning, and that the stream crossing work was reviewed by DEP and the Army Corps rather than by the town's peer reviewer. Discussion of the groundwater finding covered the well exclusion zones and septic locations shown on the plan, which are conceptual and can shift at building permit stage.

20. 1:43:31
    Findings: flood areas, wetlands, farmland, streams

    No development is proposed in mapped floodplain. The wetlands, farmland and stream findings rested on the delineation and mapping submitted with the application, with the board recording no active farmland or prime farmland of five or more acres on the site.

21. 1:48:52
    Findings: stormwater, spaghetti lots, phosphorus, adjoining towns

    The stormwater motion was amended to record that the applicant agreed to follow the peer reviewer's recommendation in their letter dated March 1, 2023, which had been the point of disagreement over the spillway. On phosphorus the board noted the site is not in the Runaround Pond watershed. Some discussion questioned whether the adjoining-municipality criterion applied at all, since the subdivision does not cross a town line.

22. 1:54:22
    Findings: timber harvesting and cluster subdivision

    The timber motion relied on a certification of compliance with Maine forestry rules, and Burnham said he had put the road in the existing logging road location where he could. The cluster finding covered open space, density and the design standards of the cluster provisions.

23. 2:00:13
    Conditions of approval read out

    The chair read the draft conditions: recording within 90 days of signing, construction to start within 12 months and be substantially complete within 36 months, five days written notice to the road commissioner before construction, a performance guarantee for erosion controls and site stabilisation, road commissioner certification before release, replenishment of the peer review escrow, a deposit of two percent of the engineer's construction cost estimate for inspection, the trail to be built before any certificate of occupancy, compliance with the homeowners association documents submitted November 22, 2022, removal of the existing unpermitted stream crossing with the necessary state and federal permits, and the stormwater basin easement on Dean Smith's land added to the plan.

24. 2:05:49
    Discussion of the conditions

    The board added that the Dean Smith easement should also be included in any deed of transfer, since Smith has not yet sold the land and a title search might otherwise miss it. Conditions three and five were read together: the erosion control guarantee runs through construction, and if the applicant returns to lift the restriction on lot sales it must either finish the work or post a guarantee for the remainder. A twelfth condition was added requiring all DEP and Army Corps documentation, including the general permits and the grading plan, to be submitted.

25. 2:10:52
    Final vote, and next Monday's workshop

    Thebarge re-read conditions 11 and 12 as amended, the motion was amended and the board voted on the final plan application. Members noted the plan is not officially approved until they sign it, which they hoped to do at Monday's workshop, otherwise it slips to August. The chair said the board would take up the draft land use ordinance articles at that workshop and that a packet was ready, and mentioned a further Bowie Hill application coming back.

What was decided

• 0:11
  Accept the minutes of the June 7, 2023 meeting as presented, moved by Juliet Caplinger and seconded by Tyler Hutchison.passed
• 1:21:16
  Finding that the proposed subdivision will not result in undue water or air pollution, citing the performance standards for floodplain management, soils and wastewater disposal, erosion control and stormwater management, health rules, water supply, sewage disposal and groundwater quality. Recorded as unanimous.passed
• 1:21:16
  Finding that the subdivision has sufficient water, being served by individual wells, and that fire protection water supply has been reviewed and approved by the fire chief. Recorded as 4-0.passed
• 1:21:16
  Finding that the subdivision will not cause unreasonable soil erosion, through the erosion and sedimentation control plan as determined by the town's peer review engineer, with topsoil retained and used on site. Recorded as 4-0.passed
• 1:26:49
  Finding on traffic, moved by John Talbot: sight distances on Hallowell Road are adequate, the intersection offset with Patriot Way does not constitute a safety hazard, and road construction will meet the engineering standards of appendix one as determined by the peer reviewer. Recorded as 4-0.passed
• 1:26:49
  Finding that the subdivision provides for adequate sewage waste disposal, soil test pits having been submitted showing each lot can site a septic system without a variance or off-site easement. Recorded as four to nothing.passed
• 1:32:08
  Finding that solid waste generated can be accommodated within the capacity of the town's services, collection being private within the homeowners association. Recorded as 4-0.passed
• 1:32:08
  Finding, moved by Allan Purinton, of no undue adverse effect on aesthetic, cultural and natural values, the project limiting clearing to areas shown on the plan, maintaining a 50-foot vegetative buffer along existing roadways, and available data indicating no such resources on or adjacent to the site. Recorded as 4-0.passed
• 1:32:08
  Finding, moved by John Talbot, of conformance with the land use ordinance and comprehensive plan, the code enforcement officer having found no current violations on the site and the aquifer protection district standards being met by the proposed road construction. Recorded as four to nothing.passed
• 1:37:53
  Finding, moved by Tyler Hutchison, that the applicant has demonstrated financial capacity through engineering cost estimates and the conditional agreement, and technical capacity through peer-reviewed drawings and studies and an inspection escrow fund. A vote was called; the transcript does not record the result.outcome unclear
• 1:37:53
  Finding on surface water: the subdivision is not in the Runaround Pond watershed or subject to mandatory shoreland zoning, the new crossing and removal of the existing crossing have been approved by DEP and the Army Corps, and stormwater treatment has been moved away from the stream. Recorded as four to zero.passed
• 1:43:31
  Finding on groundwater: septic systems and wells must meet state rules, well exclusion zones are shown on the plan, and there are no documented problems obtaining potable water in the area. A vote was called; the transcript does not record the result.outcome unclear
• 1:43:31
  Finding on flood areas: no development is proposed within areas mapped as floodplain. A vote was called; the transcript does not record the result.outcome unclear
• 1:43:31
  Finding, moved by Tyler Hutchison, that all freshwater wetlands within the subdivision have been mapped by qualified professionals. Recorded as 4-0.passed
• 1:43:31
  Finding, moved by Juliet Caplinger, that there is no active farmland or prime farmland of five or more acres within the project area. Recorded as unanimous.passed
• 1:43:31
  Finding that all streams meeting the definition of a regulated stream under the Natural Resources Protection Act have been identified on the maps and appropriate stream setbacks shown on the plan. Recorded as 4-0.passed
• 1:48:52
  Finding on stormwater management, amended during discussion to record that the applicant will follow the peer reviewer's recommendations in their letter dated March 1, 2023 concerning the spillway. The amended motion was seconded; the transcript does not record the result of the vote.outcome unclear
• 1:48:52
  Finding, moved by Tyler Hutchison, that no lots are proposed within an area regulated by mandatory shoreland zoning that would violate the spaghetti lot rule. A vote was called; the transcript does not record the result.outcome unclear
• 1:48:52
  Finding, moved by Juliet Caplinger, on great pond phosphorus concentration, the site not being in the Runaround Pond watershed. A vote was called; the transcript does not record the result.outcome unclear
• 1:48:52
  Finding that the subdivision will not generate traffic causing unreasonable congestion in Durham or an adjoining municipality. A vote was called; the transcript does not record the result.outcome unclear
• 1:54:22
  Finding that the applicant has submitted certification by a licensed forester that timber harvesting on the site complied with Maine forestry rules. Recorded as four to zero.passed
• 1:54:22
  Finding, moved by Tyler Hutchison, that the subdivision meets the intent of clustering and complies with the density limitations and design standards for cluster developments. Recorded as 4-0.passed
• 2:10:52
  Amend the motion of approval to revise condition 11, adding that the stormwater basin easement on Dean Smith's land be included in any deed of transfer, and to add condition 12 requiring submission of all documentation related to the DEP and Army Corps permitting.passed
• 2:10:52
  Approve the final subdivision plan application for Deer Creek Crossing with the conditions as read and amended. Recorded as 4-0.passed
• 2:10:52
  Adjourn, moved by Allan Purinton and seconded by Tyler Hutchison.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.

Motions the minutes record

The town's own written account of what was decided, taken from pbminutes_07_05_2023.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 minutes from the June 7, 2023 meeting as presentedcarried 4-0

  Moved by Juliet Caplinger, seconded by Tyler Hutchison

• adjourncarried 4-0

  Moved by Allan Purinton, seconded by Tyler Hutchison

Worth knowing

• 5:22
  In place of a letter of credit for the full cost of the infrastructure, the applicant asked for a conditional agreement: no lot may be sold and no building permit issued until the roads, utilities and stormwater work are built and certified, unless the applicant returns to the board and posts a performance guarantee for what is left. Thebarge said that restriction has to appear on the plan recorded in the registry of deeds so a title attorney will see it.
• 32:06
  The peer reviewer asked for buried pressure-treated timber or concrete to set the spillway elevation on the underdrain soil filter; Burnham said he had used the impermeable liner instead and had never used timber in three dozen such filters. The board declined to choose between engineers, required the peer reviewer's recommendation, and wrote it into the conditions.
• 1:26:49
  Sight distance at the entrance on Hallowell Road was put at about 700 feet. A note on the recorded plan requires a 15-inch culvert in every driveway and a permit from the road commissioner before a driveway is built.
• 2:10:52
  The approval is not official until the board signs the plan, which members hoped to do at the following Monday's workshop; miss that and it slips to August. The conditions require the plan to be recorded within 90 days of signing, though one exchange in the meeting said nine days.

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: 3 passages of motion language, against 25 decisions summarised.

Elsewhere

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