Select Board Meeting ~ November 28, 2023

2023-11-28 · Select Board · 1:30:58 · watch on YouTube →

Regular Select Board meeting of November 28, 2023, with Richard George excused. The board heard winter readiness and department reports from the road commissioner and the fire chief, then spent most of the meeting on a request for a letter of no action over a garage at 12 Rabbit Road built within the 20-foot setback. After the board of appeals had denied a variance the previous week, the owners' attorney asked the board to confirm the town would not take enforcement action so the sale could close. The board voted to issue a no-action letter conditioned on the town reserving the right to act if the nature, use or expansion of the building changes, together with a $2,000 fine, with the letter withheld until the fine is paid. The board also approved the consent agenda, heard that the solid waste contract was going out to bid, and adopted a new practice of board member reports at the end of meetings.

What was discussed

1. 14:57
   Call to order and opening business

   Joe Tomm called the meeting to order, noted a quorum with Richard George excused, and led the Pledge of Allegiance. There were no amendments to the agenda and no public comment on items not on the agenda.

2. 14:57
   Road commissioner's report

   Calvin (?) reported that plows and wings were on the trucks, trial runs had been made and the trucks calibrated, and that three winter events had now been worked. He also reported attending a roadway fundamentals class in Saco run by the MDOT local roads division, that public works is fully staffed with on-call winter drivers, fall cleanup of town properties and cemeteries, work with the Maine Municipal Association's loss mitigation department on deficiencies found in its summer inspection, and continued work on the 2024 budget and the CIP committee's 2024 capital requests.

3. 14:57
   Stop sign and safety at the Runaround Pond and Route 9 intersection

   Heather Roy reported a stop sign down at the Runaround Pond and Route 9 intersection with a makeshift replacement. Calvin (?) said it is the state's responsibility, that he had called them and had put up the temporary sign himself on a Sunday, and that he would call again. She also asked about safety for a group using a lot at that intersection and whether people can get off the road there; the transcript does not render the group's name intelligibly.

4. 14:57
   Fire chief on the lot at the intersection

   The fire chief said he had stopped one night when he saw several cars with hazards on, and that those using the lot are working out a driveway so they can get fully off the road, sharing the property with the owner. He said the fire department has no concern and that it would be a matter for Calvin.

5. 20:41
   Fire department report

   The fire chief said commendations would be presented at a later meeting to three members who responded to the Lewiston shooting and were on scene for three hours. He reported that Ken Scrier had retired at 75 after decades of service, having held almost every rank including deputy chief and senior engineer, and that the day after his last shift he was first in at a reported structure fire at the Get and Go. He also reported a $20,000 grant from Androscoggin County EMA for radios, training with Freeport fire at LL Bean's new headquarters, the Durham Fire honour guard posting the colours at the Maine Mariners game on December 16 at 6 pm with discounted tickets on the town website, and at least three members upgrading to advanced EMS licences.

6. 20:41
   Recognition of Ken Scrier in the town report

   Heather Roy suggested that Ken Scrier's retirement be memorialised in the town report if the deadline had not passed, and the town manager said he could take care of it. Members put his service at somewhere between 30 and over 40 years; the transcript gives both figures in the same exchange.

7. 20:41
   12 Rabbit Road setback violation: the request

   Michael Malloy, a lawyer in Auburn representing Eileen and Terry Free, asked the board to authorise town staff to issue a letter of no action over a garage, a corner of which sits within six feet of the property boundary against a 20-foot setback requirement. He said the board of appeals had denied a variance the previous week and that without such a letter the sellers cannot pass clear title and the buyers cannot obtain title insurance for their acquisition loan.

8. 26:12
   Attorney's account of the board of appeals findings

   Michael Malloy said the board of appeals found no other code violations at the property, no pending enforcement action, and that the setback constitutes a hardship on the owners and on the buyers. He said the sticking point was whether the owners bore responsibility, and that their position is a past town employee told them where to put the garage.

9. 26:12
   Terry Free's account of the road commissioner's instruction

   Terry Free said he spoke to the then road commissioner about the driveway, who wanted it on the high side of the land for water runoff and said the garage had to be 90 feet from the centre of the road. He said that instruction pushed the garage 15 feet further back and put its rear corner into the setback zone, which he and his wife did not realise at the time, and that no new plan was drawn.

10. 31:24
    Question of precedent

    A board member said his concern was setting a precedent. Michael Malloy answered that the case turns on its own facts, specifically a representation by a town official that the owners relied on, and that they were not asking the board to cure the violation but only to say it would not prosecute. He said a land swap with the abutter was not practical because the abutter was not interested and resurveying would cost several thousand dollars the parties do not have.

11. 31:24
    Challenge to the timeline

    Joe Roy said he had watched the board of appeals meeting in full and that the permit was applied for in July 2019 and approved in early August 2019, with a sketch already showing a 90-foot setback from the centre line, while the conversation with the town official was said to have taken place in September 2019. He argued that being told in September to sit 90 feet back would not have been new information, and that the sketch was not drawn to scale, since a 90-foot setback from the road plus 50-foot rear setbacks would not fit the lot. Terry Free said he could not remember the date and that his recollection concerned the driveway.

12. 36:33
    Whether a no-action letter runs with the property

    A board member asked what a no-action letter would mean for future owners, noting that a granted variance stays with the property. Michael Malloy declined to give legal advice but said his assumption was similar, and the member asked to return to the point when the board came to frame its decision.

13. 42:05
    Board of appeals chair on the variance criteria

    Paul First, acting chair of the appeals board, of Chesley Hill Road, asked why the variance was refused when the board had reached a consensus that the property could not yield a reasonable return without one. The answer given was that an applicant must meet all of the criteria and that four of five were met. Joe Tomm noted that the board of appeals decision is a separate step and is not under review by the select board.

14. 42:05
    Motion to move into discussion, and the case for a fine

    Joe Roy moved, seconded by Heather Roy, that the board discuss the consideration of recommending the request. A board member said the town has granted no-action letters before and that a fine, which he read as capping at $5,000, would address the precedent concern; he said counsel had recommended a lower figure earlier that week.

15. 42:05
    Support for a no-action letter with a fine

    Joe Roy said the sketch submitted with the permit was clearly not to scale, with the 24 by 24 building, the property lines and the setbacks all drawn wrongly, that there is a violation, and that he generally favours a fine where there is one. He said he supported issuing the no-action letter so the sale could close.

16. 47:20
    Condition on change of use

    Heather Roy said she would want any no-action letter to state that the use cannot change, and that the no action would not follow a change of use. Joe Tomm (?) and Josh Klein-Golden said the coming affordable housing changes could mean a future owner seeking an accessory dwelling over the garage, which would put a non-conforming structure to a different use, and that the town's rule of thumb is not to make something more non-conforming than it already is.

17. 53:06
    Buyers (?) asked whether the condition is acceptable

    Joe Tomm said the parties should be given the chance to object before the board imposed a condition. Michael Malloy said the title insurance company would write the policy and the closing could happen so long as the town takes no enforcement action against what is there today. Benjamin Roach, one of the two buyers, said he is a mechanic by trade, intends to use the garage as a garage, has no intention of putting an apartment in it, and that the condition does not change their position on buying.

18. 53:06
    Joe Roy's (?) proposed motion

    Joe Roy proposed accepting the recommendation of a no-action letter with the condition that the use of the garage cannot change from its current use, together with a fine for the violation. The board discussed whether the letter and the fine should be one vote or two, and Josh Klein-Golden said they should be a single vote because the size of the fine bears on whether the letter is worth anything to the applicants.

19. 58:42
    Discussion of the amount of the fine

    The town manager said the town attorney's recommendation was that the amount is at the board's discretion. A board member proposed $2,000, against a maximum he gave as $5,000 for this type of violation and $10,000 for shoreland; the transcript renders his figure as both $22,000 and $2,000, and the motion that followed says $2,000. Members argued against the maximum because the owners had come forward themselves, and said the fine should at least cover the town's costs, which the town manager put at about a day and a half of his own time plus a couple of days of another staff member's.

20. 58:42
    Motion for a no-action letter with conditions and a fine

    Josh Klein-Golden moved that the town issue a letter of no action subject to the town reserving its right to take action should the nature or use of the building change from what it is today, with a $2,000 fine levied and issuance of the letter stayed until the fine is paid in full. Heather Roy seconded.

21. 1:04:18
    Amendment and vote

    Heather Roy offered a friendly amendment to add the word expansion, so that the town also reserves the right to act if the building is expanded. A member noted for the record that he was comfortable with less than the maximum because the structure is not a dwelling. The letter is to be signed once the town receives the payment.

22. 1:04:18
    Town manager's report: solid waste contract

    Jerry Douglass said the solid waste contract was ready and would be mailed out that week, with bids due at 3:00 pm on Thursday December 21 and a bid period of close to three weeks. The existing contract ends June 30. Bids are advertised through the Maine Municipal Association and posted on the town website.

23. 1:09:18
    Conservation Commission resolution and meeting spaces

    Heather Roy asked that the resolution the board signed be posted on the Conservation Commission section of the town website and included in the news blast. On meeting space, the town manager said his plan was to use the fire station and that he did not want to take the town's issues to the school, and the board agreed to leave it there and take up a larger plan later.

24. 1:09:18
    Consent agenda

    Joe Tomm moved to accept the consent agenda and the meeting minutes as presented, covering minutes from November 14, October 24 and October 10 and the payroll warrant. Joe Roy seconded.

25. 1:09:18
    Introduction of board member reports

    Jerry Douglass proposed adding a standing item at the end of meetings for board members to report what they are hearing from residents, as councils he has worked with do, kept short and without discussion. Members supported it, with Joe Roy (?) noting the board should be careful to use it for statements rather than as a place to open discussions that belong on an agenda.

26. 1:14:19
    Heather Roy's report

    Heather Roy raised safety concerns about access to the lot near the intersection, saying there have been multiple car accidents and multiple fatalities there. She also raised how a staff member was treated at the public hearing on the land use ordinance changes; the board agreed to hold that for the next meeting, in executive session, when Richard George is back.

27. 1:14:19
    Josh Klein-Golden's report on sheriff patrols

    Josh Klein-Golden said the county had decided to dedicate a patrol to Route 4 in the Livermore, Livermore Falls and Turner area, and that Durham has long had a response time problem with growing population and traffic. He said law enforcement had told him they have stopped drivers going over 90 miles an hour on Route 136 and that it happens often, and he wants the board to press the sheriff to commit more time to Durham. He noted Poland has its own dedicated deputy paid for by its residents and asked to see the documentation of how the Route 4 decision was made before the item comes back on an agenda.

28. 1:19:35
    Automated lights at the Route 125 bridge

    Joe Roy (?) relayed a resident's concern, and his own observation, about drivers running the automated signals where the Route 125 bridge is being replaced, describing a near head-on collision. He asked whether the lights could be operated by a person at high traffic times, particularly through the winter.

29. 1:19:35
    Upcoming meetings

    CIP committee on November 30 at 6 pm at the town office; select board on December 12 and December 26 at 6:30; planning board on December 6 at 6:30. The CIP meeting is recorded and posted afterwards rather than livestreamed, and the solar ordinance committee meets the following day with its public hearing on the 7th.

30. 1:24:49
    Josh Klein-Golden speaking as a Conservation Commission member

    Josh Klein-Golden said he stepped down as chair of the Conservation Commission on joining the select board but remains a member, and asked whether the board was comfortable with him leading the explanation at the December 7 meeting. Members said that was fine so long as he made clear he was speaking as a commission member and not for the select board.

31. 1:24:49
    Adjournment

    There was no executive session. Joe Roy moved to adjourn and Heather Roy seconded.

What was decided

• 42:05
  Have the board discuss the consideration of recommending the request for a no-action letter at 12 Rabbit Road. Moved by Joe Roy, seconded by Heather Roy.outcome unclear
• 53:06
  Accept the recommendation of a no-action letter with the condition that the use of the garage cannot change from its current use, plus a fine. Moved by Joe Roy. This wording was folded into the later motion and the transcript does not record a separate vote on it.outcome unclear
• 58:42
  Issue a letter of no action for the garage at 12 Rabbit Road subject to the town reserving its right to take action should the nature, use or expansion of the building change from what it is today; levy a fine of $2,000; and stay issuance of the letter until the fine is paid in full. Moved by Josh Klein-Golden, seconded by Heather Roy, with Heather Roy's amendment adding expansion. The chair announced the motion carried with none opposed.passed
• 1:09:18
  Accept the consent agenda and the meeting minutes as presented, covering the November 14, October 24 and October 10 minutes and the payroll warrant. Moved by Joe Tomm, seconded by Joe Roy; carried 4-0.passed
• 1:24:49
  Adjourn the meeting. Moved by Joe Roy, seconded by Heather Roy; carried 4-0.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 sb_meeting_minutes_11_28_23.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.

• have the Board discuss the consideration of recommending the request

  Moved by Joe Roy, seconded by Heather Roy; no outcome recorded

• accept the recommendation of a no action letter with the condition that the use of the garage cannot change from its current use and to assess a fine for the current violation. Joe Roy withdraws his motion so the Board c…

  Moved by Joe Roy, no seconder recorded; no outcome recorded

• accept the recommendation of a no action letter subject to the condition that the town reserves the right to take action should the nature of the use of the building change from what it currently is today and in addition…

  Moved by Josh Klein-Golden, seconded by Heather Roy; no outcome recorded

• amend that the word expansion be added - that the town reserves the right to take action should the nature of the use or expansion of the building change from what it is today

  Moved by Heather Roy, no seconder recorded; no outcome recorded

• accept the consent agenda and the meeting minutes as presentedcarried 4-0

  Moved by Joe Tomm, seconded by Joe Roy

• adjourn the meetingcarried 4-0

  Moved by Joe Roy, seconded by Heather Roy

Worth knowing

• 58:42
  The $2,000 fine must be paid before the no-action letter is issued. The maximum for this type of violation was given as $5,000, and $10,000 for shoreland. The town manager estimated the town had already spent about a day and a half of his time and a couple of days of another staff member's time on the matter, on top of the volunteer time of the appeals board.
• 20:41
  Durham Fire was awarded a $20,000 grant from Androscoggin County EMA for radios, but the town must buy the radios up front and be reimbursed, and the fire chief said the money is not in his budget. He said it would cover about four or five portables and a truck radio.
• 1:04:18
  The solid waste contract went out to bid with bids due at 3:00 pm on Thursday December 21. The existing contract ends June 30.
• 1:14:19
  Josh Klein-Golden said law enforcement has stopped drivers travelling over 90 miles an hour on Route 136 and that it is not a one-off. Heather Roy said there have been multiple accidents and multiple fatalities at the intersection near the lot she raised. The county has dedicated a patrol to Route 4 in three other towns, which Durham helps pay for without dedicated coverage of its own.

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 5 decisions summarised.

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