Board of Appeals Meeting ~ February 28, 2024

2024-02-28 · Board of Appeals · 1:52:36 · watch on YouTube →

Board of Appeals meeting of February 28, 2024, called to hear a zoning boundary clarification requested by Howard and Sandra Hagar for their property and business at 292 Runaround Pond Road. Almost the whole parcel had been placed in the Resource Protection District under the 2023 land use ordinance because it scored six or more on the state's co-occurrence mapping: three points for sitting in a large undeveloped habitat block and three for Blanding's turtle habitat based on a single sighting in May 2000. Inland Fisheries and Wildlife has since written that the habitat block data was wrong and excludes the developed part of the property, and a consultant's field assessment found no habitat consistent with Blanding's turtle. After a public hearing at which every speaker but one supported the applicants, the board voted 4-0 to relocate the Resource Protection District boundary on the property to 250 feet from the wetlands associated with Chandler Brook, as shown in figure five of the consultant's report. The board also approved its January minutes and seated an associate member as a full voting member for the evening to make a quorum.

No written minutes could be matched to this meeting. The transcript records that the speaker changed but never who was speaking, so any name attached to a statement below is inferred from context and is marked (?).

What was discussed

1. 6:00
   Opening, roll call and quorum

   The meeting opened at 6:30. Present were Terry Kirk, Neil Barry, Byron Filb (?) and Paul First (?); Milt Simon was absent. The board has no alternates and there are open seats.

2. 11:22
   Approval of the January 22 minutes

   The chair thanked Neil Barry for preparing the minutes and offered two suggestions for future ones: in the record of evidence, at least point to the application package so a later reader knows a substantial packet exists on file, and where the board rules on variance criteria, capture a statement of why it ruled as it did. He said the January minutes should be approved as written.

3. 11:22
   Appointments and the vacancy letter

   The select board had not yet moved Byron Filb (?) from associate to regular member, so the chair asked him to serve as a full voting member for the evening, which the ordinance allows. The board also agreed the secretary should write to the selectmen about the vacancies, noting the ordinance gives them 60 days to appoint after receiving such a letter; the two asks are to make Byron Filb (?) a regular member and to appoint two new associates.

4. 17:06
   The Hagar appeal and the board's jurisdiction

   The application was dated November 9, 2023; Alan Plumber (?), the code enforcement officer, explained that the applicant asked in a letter of November 16 to postpone it indefinitely and only recently asked to bring it back. Because no code enforcement decision was being appealed, the chair asked the code enforcement officer to formally request a boundary determination, which he did, so the board would be acting squarely within the ordinance.

5. 23:15
   Record of evidence and notice

   The record includes the applicants' application package with correspondence to and from Inland Fisheries and Wildlife and the Beginning with Habitat program, correspondence with the town planner, and a natural resources assessment of 292 Runaround Pond Road by LaBella. Notice was published in the newspaper, posted at the town office, the Get and Go and the elementary school, and put on the town website and Facebook page; abutters were notified except the State of Maine, which has no mailing address.

6. 29:05
   The town planner on the board's authority and the IF&W letter

   George, the town planner, cited section 2.3.8.6 of the land use ordinance, under which the board of appeals interprets district boundaries where features on the ground are at variance with the official zoning map, and section 17.3(d), which allows boundary interpretation as part of an appeal or at the request of the selectmen, planning board or code enforcement officer. He said townwide zoning maps are accurate to perhaps a hundred feet while setbacks need accuracy within a foot, and that in most towns this authority sits with the planning board. He then walked the board through a January 29, 2024 letter from the Beginning with Habitat program, which says the undeveloped habitat block was updated in early 2023 with better land cover data, now excludes the developed portions of the property, and that this portion of the property has a co-occurrence value of less than six.

7. 35:04
   The LaBella assessment and the three options

   The consultant's report, dated January 23, states that the study area was included in the state's rare, threatened and endangered animal habitat layer because of a Blanding's turtle documented on May 13, 2000 on Chesley Hill Road, but that the data collected on the ground is not consistent with Blanding's turtle habitat. The distance from that sighting to the property is read out on the recording as approximately 65 miles, which cannot be right, since a board member said the sighting was at his own property line next to the Hagars. Three possible boundaries emerged: take out only the developed area; take out the developed area plus a 250-foot buffer as IF&W recommends; or, per the consultant, take out the whole property except 250-foot buffers around the wetland resources.

8. 40:38
   When the zoning map itself gets fixed

   Members asked what happens to other properties whose habitat data has also changed. George (?) said the zoning map can only be changed at town meeting, that he had proposed carving out clearly developed areas using aerial photography, that the Conservation Commission was comfortable with it but planning board members wanted something more accurate, and that after the coming town meeting the leaders of all the land use boards will meet to discuss ordinance changes, including updating the map to the latest Beginning with Habitat data. In the meantime, he said, any owner can seek an interpretation from this board and get immediate relief rather than waiting another year.

9. 40:38
   Statement by the applicants

   Sandra Hagar (?) said they have lived in Durham 40 years and their daughter lives at 290 Runaround Pond Road, and asked for relief from the 2023 ordinance, saying resource protection boundaries were measured from 30,000 feet and that they were told the boundaries could not be challenged without a qualified biologist's data. She said the March 2023 warrant had been drafted as a two-tiered vote, with 320 of 480 properties to come out of redefined flood zones and 30 properties to go into resource protection, and was changed at the last minute into a single vote; that residents told to seek tax abatements have met a hard no; that the town planner acknowledged on March 27, 2023 that he did not know where their residence physically was, confusing it with their daughter's; and that the GIS mapping was corrected on December 12, 2023. She said the January 29, 2024 letter from Justin Sloan (?) of Beginning with Habitat proves a mapping error meant their property does not abut an undeveloped habitat block of over 1,200 acres, and that this correction alone drops their score below six. The cost of the consultant's report is stated on the recording in a form the transcript garbles, rendered as "the 35 thousand report".

10. 51:36
    The relief requested

    The applicants asked that the resource protection boundaries on their land be returned to where they were before April 1, 2023, with a fallback of recognising their developed area without restrictions as described in the January 29 letter. Sandra Hagar (?) said Justin Sloan (?) had told her by phone that day that a new co-occurrence map for Durham is being drafted for release in early April and that the state's position on the Blanding's turtle in Durham and at Runaround Pond will change. Howard Hagar (?) said waiting until the 2025 town meeting would put a wrench in plans they have been trying to act on for a long time.

11. 57:11
    Board questions on what each option would change

    Members worked through the maps to establish that under the third option only small fringe areas of the parcel would remain in resource protection, and that the board can only alter the boundary on the property under appeal. A member summarised that the parcel scored three points for supposedly sitting in a 1,200-acre undeveloped tract and three for falling inside a large circle drawn around the 2000 turtle sighting, and observed that a significant developed business could not sensibly sit inside a 1,200-acre undeveloped tract.

12. 1:03:03
    The planner's five diagrams

    George handed out five diagrams showing the property, its developed portion, and the current Resource Protection District. He said that if the Beginning with Habitat six-plus layer is removed, what remains is resource protection based on the state mandatory shoreland zone along Runaround Brook, ten-acre-plus wetlands, the floodplain and a stream buffer, which in his view shows the only reason the bulk of the property is in the district is the Blanding's turtle habitat layer.

13. 1:08:59
    Public hearing

    The public hearing opened at 7:32. John Benedict of Runaround Pond Road, whose own property is affected, said Derek Yorks, the state's turtle and reptile specialist, had visited his property and found no Blanding's turtle habitat, and quoted him as saying the department typically does not consider one occurrence sufficient to warrant research, would possibly investigate after two and definitely after three, and that after 23 years without another report he is not optimistic about an outlying population. Another resident said he had reached the same conclusion for far less money.

14. 1:15:08
    Further public comment and an objection

    Linda Callenbach (?) of Runaround Pond Road supported the relief. Ray Bowden (?), whose land adjoins the Hagars', said he heats his house with wood cut in that area and was concerned that granting the relief would leave him worse off under resource protection; the chair told him to take the forestry question to the code enforcement officer and the town planner, who would need to check the ordinance and the forest service. Another Runaround Pond Road resident asked the board to be precise that options one and two mean the developed area rather than the business, and recommended the third option as the one based on boots-on-the-ground data.

15. 1:15:08
    Letter from Lois Kilby-Chesley

    Alan Plumber (?) read a letter from Lois Kilby-Chesley of 31 Runaround Pond Road, who could not attend, supporting the change to map 8 lot 62. She cited a FOAA response from Becky Orff (?) in the commissioner's office at MDIFW quoting Derek Yorks on the single 2000 sighting, reported with one photograph, and his lack of optimism about a population; the town manager describing the town maps to her on or about December 7, 2023 as a 30,000-foot view; and her position that where an ordinance is based on inaccurate information the town is obliged to find a remedy.

16. 1:20:44
    Close of hearing and board deliberation

    The public hearing closed at 7:45 after Howard Hagar (?) said he hoped the effort would help other residents whose homes are in resource protection and limited to a 30 percent addition. Terry Kirk favoured the third option. Neil Barry (?) read the standard for administrative appeals, that the board may reverse only on finding the action clearly contrary to the ordinance or that the record of evidence compels a different conclusion, and said the record compels a different conclusion. The chair said he would have liked to hear from a wildlife biologist living in town and was initially wary that the third option could open a can of worms, but concluded the evidence was compelling.

17. 1:36:25
    Drafting the motion

    George drafted motion language granting the relief under sections 2.3.8.6 and 17.3(d), determining that the accurate boundary of the Resource Protection District on the property lies 250 feet from the edge of the National Wetland Inventory wetlands associated with Chandler Brook, as illustrated in figure five of the LaBella natural resource assessment dated January 23. A friendly amendment added the January 29, 2024 Beginning with Habitat letter on the corrected undeveloped habitat block data as further support. Members confirmed the existing wetland and stream buffers stay in resource protection and that only this property is affected.

18. 1:46:36
    Clarification for the applicants and the vote

    Howard Hagar (?) asked about a wetland nearer his daughter's house and was assured her house is not in resource protection now and is not proposed to be, and that the motion follows the wetlands associated with Chandler Brook and not those across the road. The chair told the applicants that if the written decision does not match what was discussed they should come back rather than hire another consultant. The board then voted and said the written decision would follow within seven business days.

19. 1:52:04
    Adjournment

    The board adjourned.

What was decided

• 11:22
  Approve the minutes of the January 22 meetingpassed
• 17:06
  Seat Byron Filb (?), currently an associate, as a full voting member for this meeting; the chair noted the ordinance lets him do this without a vote but the board voted anyway, three in favour with one abstentionpassed
• 1:46:36
  Grant the Hagars the requested boundary interpretation under sections 2.3.8.6 and 17.3(d), determining that the Resource Protection District boundary on their property lies 250 feet from the edge of the National Wetland Inventory wetlands associated with Chandler Brook as shown in figure five of the LaBella natural resource assessment of January 23, supported by the January 29, 2024 Beginning with Habitat letter. Vote called as 4-0; written decision due within seven business dayspassed

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

• 35:04
  The property was put in resource protection on two three-point criteria, both now disputed. Inland Fisheries and Wildlife has written that the undeveloped habitat block data was wrong and excludes the developed part of the property, and the state's own turtle specialist is quoted saying a single sighting would not normally warrant research and that after 23 years without another report he is not optimistic there is a population. The whole Blanding's turtle score rests on one turtle photographed crossing a road in May 2000.
• 40:38
  Sandra Hagar (?) said the March 2023 resource protection warrant was originally drafted as a two-tiered vote, 320 of 480 properties coming out of redefined flood zones and 30 going into resource protection, and was changed at the last minute into a single vote. She also said residents told by town officials to seek a tax abatement have found it a hard no.
• 40:38
  Beginning with Habitat is drafting a new co-occurrence map for Durham, expected early April, and the applicants were told the state's position on the Blanding's turtle in Durham will change. The zoning map itself can only be amended at town meeting; the town planner said the land use boards will meet after this year's town meeting to discuss updating it, which points at the 2025 town meeting at the earliest.
• 1:15:08
  The one objection came from Ray Bowden (?), whose land adjoins the Hagars'. He heats his house with wood cut in the affected area, said he would be left worse off if his neighbours came out of resource protection and he did not, and was told nobody could tell him that evening what the ordinance allows him to cut.

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

Elsewhere

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