Board of Appeals ~ July 19, 2022

2022-07-19 · Board of Appeals · 1:19:08 · watch on YouTube →

The Board of Appeals met on July 19, 2022 on a single application, from Birdie and Jonah Fertig-Bird of 125 Bowie Hill Road, home of Celebration Tree Farm. Filed as a variance, it was really a request that the board reinterpret where the resource protection district boundary runs on their land, on the ground that newer FEMA floodplain mapping shows the half-acre around their house and barn is high ground rather than floodplain. The town planner explained the ordinance provision and the precedent set a year earlier at the Wildflower Equestrian Center on Royalsborough Road. Members turned repeatedly to a different problem: voters had declined to accept changes to the resource protection zone at the last town meeting, and amendments are being prepared for April, so several felt granting this would put the board ahead of the legislative body on a town-wide question. The discussion then established that what the applicants actually want, a yurt used as a small non-residential educational facility and a single RV site, appears to be permitted in resource protection already, so no boundary change is needed. A motion was framed and seconded declining to reinterpret the boundary; the recording does not capture the result of the vote.

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. 0:09
   Call to order and the pledge

   Barbara Schneider opened the meeting and called for the pledge of allegiance, saying she did so in deference to a member who has retired and always reminded her to.

2. 0:09
   Introductions

   Alan Plummer (?) introduced himself as the town's new code enforcement officer, saying he came from Mechanic Falls, lives in Chelsea and is moving to Litchfield. Heather Roy (?) introduced herself as the alternate member, expecting to vote in place of Gary Perry; Barbara Schneider of Rough Rider Road as chair; Milt Simon of Stackpole Road as a member; and a fifth member as a former associate recently appointed a regular member.

3. 0:09
   Alternate seated to vote

   Because the board had not met for a while and a member was absent, the chair asked for a motion to let the alternate vote, giving five voting members.

4. 0:09
   Who was in the audience

   Elizabeth Fertig-Bird, who goes by Birdie, and Jonah Fertig-Bird (?) said they live at 125 Bowie Hill Road, where their tree farm and wellness center are, and have been there seven years. Thomas Proll (?) of Freeport (?) said he is a worker-owner with them in Celebration Tree Farm. Jane Rice (?) said she was there because she has property in resource protection.

5. 0:09
   How the chair framed the application

   Schneider (?) said the application had been submitted as a request for a variance but was really a request for a district boundary line interpretation. She read the board's powers from section 17.3(d) on page 159 of the ordinance, which lets the board interpret zone boundaries as part of an appeal hearing. The issue, as she put it, is that the state's floodplain mapping differs from the town's.

6. 0:09
   The former code officer's stop order

   A member asked whether there was a copy of the stop order the former code enforcement officer had issued. There was none in the file. The chair said it was not pertinent to this request; a member replied that if the letter had asked the applicants to stop using the RV for glamping then it was relevant. The applicants said the letter does not mention the resource protection zone at all, and that the zone only came up in conversation afterwards.

7. 5:47
   The applicants' case

   Jonah Fertig-Bird (?) said they simply want the property to reflect the accurate state information, which matches what they see on the ground: the land now mapped as floodplain is high ground well above the brook, and drops steeply to it. The area at issue is roughly 23,000 square feet, just over half an acre, around the house and barn. He said they are a certified organic farm practising ecological forestry and are not seeking to degrade anything, and that a conditional use permit application would follow separately.

8. 5:47
   The ordinance provision that applies

   George, the town planner, said the general authority the chair had read is carried out under section 2.3.6 on page 3 of the land use ordinance, which directs that where physical or cultural features on the ground are at variance with the official zoning map, or the other criteria are unclear, the board of appeals shall interpret the district boundaries. He described the usual bases for drawing boundaries: road centre lines, established lot lines, town lines confirmed by perambulation every ten years, shorelines, and lines a set distance parallel to a feature.

9. 11:29
   Two meanings of variance

   The planner flagged a confusion in the paperwork: the application is filed as a variance, but the ordinance phrase 'at variance' means only that the features differ. A variance in the legal sense is relief from a regulation, a different thing entirely.

10. 11:29
    The Wildflower Equestrian Center precedent

    About a year earlier the owners of the Wildflower Equestrian Center on Royalsborough Road wanted a conditional use permit for a summer camp and were told they could not even apply because the land was in resource protection. The board of appeals found the mapped boundary inaccurate and unfairly restrictive, but went further and required a field professional to shoot elevations and fix the actual line, which the owners obtained before the permit issued.

11. 11:29
    The maps in the application

    The planner had prepared three views using the town GIS he built: the existing resource protection boundary from the official zoning map over an air photo, the same area against the FEMA floodplain, and the stream itself. He noted the property lines do not follow the hydrology, that 100 feet either side of the brook is resource protection in its own right, and that the topography there is narrow and steep so there is little expansive wetland along the stream.

12. 11:29
    Why not shoreland zoning

    A member asked why the board was not dealing with the shoreland zoning overlay, since the ordinance defines those boundaries as land within 100 feet of a stream's normal high water line, and any zone change would have to go to DEP. The planner said mandatory shoreland zoning in Durham covers land within 250 feet of the Androscoggin River and of the normal high water mark of Runaround Pond, plus certain stream segments below the convergence of two perennial streams. There was some confusion at the map over which brook was which.

13. 17:20
    Town rules go beyond the state's

    Durham has extended protection along streams further than DEP requires. Both sets of rules apply, but DEP's only within DEP's areas, which the planner said has confused previous code officers. Members agreed the practical effect on this parcel is the same whichever label is used, but wanted the terminology right if they were going to act.

14. 17:20
    Getting ahead of the town meeting

    A member, Paul, said his concern was going too far ahead of the legislative body. At the last town meeting voters did not accept the proposed changes to the resource protection area, and the sentiment he heard was that people wanted new conservation areas approved at the same time old ones were removed. He said the planner had been encouraged to take the question to town meeting, had done so, and had been told the town was not ready.

15. 17:20
    How this differs from Wildflower

    Members drew the distinction that the Wildflower decision came before the town meeting, when the board had no sense of the body, and now it has one. Several said that on this evidence the board would in effect be making a decision for the town about whether the boundary is the floodplain or the shoreland line.

16. 22:44
    Whether a decision here binds other properties

    The planner said any relief granted applies only to this property; no other owner could suddenly get permits without going through the same appeal with their own mapping. A member pressed him and he agreed that it nonetheless has precedential value, which is what raised the question of whether to open what several members called Pandora's box.

17. 22:44
    What goes to town meeting in April

    Asked whether the issue returns to the town in April, the planner said the select board has directed staff to prepare amendments correcting the inaccurate mapping within the existing district, and, as a separate warrant article, adding new resource protection on the same criteria. No warrant articles have been drafted yet, but he expected them to be ready for April.

18. 22:44
    The evidentiary burden on any future applicant

    Against the precedent worry, members noted that anyone else would still have to submit an evidentiary basis for redrawing a line and could not simply point at this case. The counter-question was what physical or cultural feature on the ground the new line would actually be, since a boundary is supposed to be discernible.

19. 27:48
    What the ordinance says resource protection is

    A member observed that the ordinance defines the resource protection zone as the lines drawn on the map and nowhere says that floodplain equals resource protection, and that the town has resource protection areas outside the shoreland zone. The planner replied that the 2002 comprehensive plan's floodplain map is virtually identical to the mapped district and was carried onto the zoning map adopted in 2004, so there is a public record basis for reading the boundary as floodplain, even though the ordinance itself says only that the lines are as drawn.

20. 27:48
    The applicant's reply on conservation

    Jonah Fertig-Bird (?) said they lease 110 acres now owned by a land trust and held in perpetuity, that their own practices are ecological, and that the land at issue is about half an acre. He argued the board can decide each application on its merits, and that anyone else would have to schedule a hearing and bring information, so this would not open the floodgates.

21. 27:48
    Jane Rice questions taking the applicant's word

    Jane Rice (?) said that as she understood it the board was being asked to accept the applicant's own knowledge of the land as evidence that it is high ground.

22. 33:06
    Whether a delineation would be required

    It was clarified that at Wildflower the board made its decision first and required the field documentation as a condition before a building permit issued, and that this applicant's plan involves no building, so the condition might not bite. Jane Rice (?) said that if this were approved without a paid delineation she would be next in line asking for her own land to come out. Members said that if they approved, they would want a survey marking the line on the ground.

23. 33:06
    The other reasons land is in resource protection

    A member asked why land is put in the district at all. The answers given were floodplain, deer wintering area, threatened or endangered wildlife habitat, and others, none of which this application addresses. The point was made that the map before the board has only the 100-foot stream buffer and the 100-year floodplain marked, with the other criteria unchecked, so the board cannot tell from it whether the land qualifies on some other ground.

24. 33:06
    Deciding on a proposal that was voted down

    A member said he could not see how the board could hear an appeal based on a proposed map when the town had voted that proposal down, and that a decision has to rest on what exists. He said the applicants were jumping the gun on something likely to come back in April.

25. 38:24
    One floodplain map substituted for another

    The board settled on a description of what was being asked: substituting one floodplain map for another, with no information before them about whether some other basis put the land in the district in the first place. It was noted the original determination was made more than 20 years ago.

26. 38:24
    The shoreland ordinance was never state-approved

    A member said that on moving to town he had run a GIS analysis and found the town's shoreland ordinance was never approved by the state but imposed on Durham, around 2006 as he recalled.

27. 38:24
    Waterfowl habitat as a criterion

    Asked which criteria the mapping had tested, the planner said moderate to high value waterfowl and wading bird habitat is a criterion in the ordinance now, that there are five such areas in town, all large emergent wetlands, and that he had checked off on the application map the criteria that touch this property; the unchecked ones do not.

28. 43:41
    Locating the five habitat areas

    Working across two maps the planner placed the waterfowl breeding areas: one near Bowie Hill, one along Meadow Brook, another elsewhere, and a couple around Runaround Pond.

29. 43:41
    Whether this is the appeals board's question at all

    A member said deciding what belongs in resource protection looks like a town-wide question on a town-wide timeline, not one for the appeals board. Jonah Fertig-Bird answered that he would agree if it were a large parcel, spoke about farmland being lost to subdivisions and his own work on farmland protection and land trusts, and said the land at issue is not endangered species, deer, waterfowl habitat or floodplain. He said they would go ahead with a survey and had not done one in advance only to avoid spending money before knowing what the board wanted to see.

30. 43:41
    What actually stands in the way

    The chair turned the discussion by asking the planner and the code officer what, under the current zoning, prevents the applicants from doing what they want.

31. 49:00
    Campground versus one site

    The ordinance defines a campground as an area used for temporary overnight accommodation by two or more parties. The applicants want one campsite, not a campground. Primitive recreation is allowed in the district; the planner's reading was that an RV on wheels used for glamping could fit, though the code officer makes that call. Alan Plummer (?) disagreed that it must be registered, since registration is only needed to be on the road, but agreed it would need wheels, which it has.

32. 49:00
    Home-based business

    Heather Roy (?) asked whether the operation would be a home-based business, which is not allowed in resource protection. The planner argued a specific land use trumps a general one, so a use covered by the campground and primitive recreation provisions is not pushed into the home-based business category. A Maine guide taking people hunting on his own land was offered as the test case.

33. 49:00
    Structures on a primitive site

    Primitive recreation covers uses that do not require buildings or structures, which raised the question of a composting toilet and wash station. The applicants said the wash station and outdoor shower can sit outside the zone and the toilet could be a temporary structure. A member asked whether there is any equivalent of a wetland delineation for the other resource protection criteria.

34. 54:09
    No adopted criteria for the district

    The answer on delineating other criteria was that it is expensive and requires a wildlife scientist. From that came the broader point that the town has never defined resource protection in ordinance criteria at all, only drawn a map, and the criteria that exist sit in the comprehensive plan, which does not have the force of ordinance.

35. 54:09
    The code officer's position

    Alan Plummer (?) said that as a new code officer he was not going to reverse a predecessor's cease and desist order within his first three months. He had spoken with Jonah and been to the site, and said that before the operation restarted he would need to see underground electricity to NEC code, where the septic will be disposed of, and carbon monoxide or smoke detection for sleeping areas.

36. 54:09
    Other permitted uses in the district

    It was established that public and private parks and recreation with minimal structural development, and small non-residential facilities for educational, scientific or nature interpretation purposes, are both permitted in resource protection and in the shoreland overlay. If the only reason to move the boundary is one RV, the board suggested, no interpretation is needed. Another route mentioned was asking the selectmen to put a zone change on the town meeting warrant.

37. 1:00:08
    Is the RV primitive recreation

    The definition of primitive recreation excludes all-terrain vehicles, motorised bikes and other motorised vehicles, which prompted a question about the RV. The applicants said it is a converted bus, so it has a motor, but the motor does not run. The chair said the discussion was going beyond the scope of the evening and that the board need not decide anything if the applicants can proceed by conditional use permit.

38. 1:00:08
    The code officer's view of the operation

    Asked directly, Alan Plummer (?) said he thought they were operating it as a business, citing wreath makers, local staff and the farm's Facebook presence. Members responded that this does not settle it, because the conditional use permit they need is for a small non-residential educational facility, which is specifically permitted in the district, and a specific use governs over the general home-based business category.

39. 1:00:08
    The applicants' next step

    Jonah Fertig-Bird (?) said their conditional use permit application was ready to submit the following day and they had been waiting on this meeting. On what they had heard, they would go forward with the yurt as a small non-residential educational facility with the single site as a component of it.

40. 1:06:07
    No definition, no performance standards

    Members noted the land use they were pointing the applicants toward, small non-residential facilities for educational, scientific or nature interpretation purposes, is not defined anywhere in the code and has no performance standards attached. Whatever it covers is allowed in resource protection and in the shoreland overlay, with the RV limited to one party.

41. 1:06:07
    A warning about commercial standards

    A member spoke from her own experience of running a business on her property, warning the applicants to check buffering requirements before the planning board, because if the use is deemed commercial a different set of standards applies.

42. 1:06:07
    Drafting the findings

    The chair said she would write the decision up so the planning board understands the board's rationale. The findings she sketched were that voters at the last town meeting did not accept the proposed changes to the resource protection zone, that the town is still working out how the zone will be defined, and that on the information before the board the use appears to be allowed already, citing the educational facility use and primitive recreation given that one site is not a campground.

43. 1:06:07
    Deny or take no action

    Asked whether to deny the request or simply take no action, the chair said the board had to deny it, but as a denial on the ground that no action is needed given the use as presented. Milt Simon (?) objected that the proposed use is not what is before the board, which was asked about the existing zone rather than what the applicants plan to do in it.

44. 1:12:23
    Framing the motion

    A first attempt at wording, that there are no physical or cultural features on the ground at variance with the zoning map, was challenged on the ground that a mapped floodplain location is not itself a feature on the ground. The motion was reframed to rest on the board choosing not to exercise its authority rather than lacking it. Members also discussed why the board should offer guidance at all rather than a bare denial, one recalling that Gary always tried to help people solve the problem.

45. 1:18:06
    The vote

    The chair asked to hold the vote and said she would write it up. The recording carries the motion being moved, a second and the call for those in favour, and then cuts to members discussing which day of the week they were available. No result is announced.

What was decided

• 0:09
  Allow Heather Roy, the alternate member, to sit and vote in place of an absent member, giving the board five voting members for the evening. Moved and seconded; the chair called for those in favour and then told her she was in.passed
• 0:09
  The chair ruled that the stop order issued by the former code enforcement officer was not pertinent to the boundary interpretation before the board. A member disagreed, saying it was relevant if the letter had told the applicants to stop using the RV. No copy was available and the point was not resolved on the record before the discussion moved on.outcome unclear
• 1:12:23
  A motion was made and seconded that, in light of the sentiment the legislative body expressed at town meeting, the board would decline to reinterpret the boundary of the resource protection zone for the purposes of this request, and that there appear to be other ways for the applicants to attain their goals. The board was explicit that this is a refusal to exercise the authority rather than a finding that it lacks it. The result of the vote is not in the recording: at the point the chair calls for those in favour the audio becomes unintelligible and then cuts to scheduling, so it cannot be reported here.outcome unclear

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

• 1:18:06
  The outcome of the meeting's only substantive vote is not on the recording. The motion is moved and seconded and the chair calls for those in favour, then the audio becomes unintelligible and the next audible exchange is about which day members were free. Nothing in the recording states whether the motion carried.
• 17:20
  Voters declined the proposed changes to the resource protection zone at the last town meeting. Members understood the sentiment as wanting the new conservation areas approved at the same time the old ones are removed, and that concern, rather than the merits of this half-acre, is what drove the board's answer. The select board has since directed staff to prepare both pieces as separate warrant articles for April.
• 27:48
  Durham's ordinance defines the resource protection zone only as the lines drawn on the map. Nothing in the ordinance says what puts land there. The 2002 comprehensive plan's floodplain map matches the mapped district and was carried onto the 2004 zoning map, but the comprehensive plan has no force of ordinance, which left the board with no written standard to interpret the boundary against.
• 54:09
  Alan Plummer, in his first months as code enforcement officer, said he would not reverse his predecessor's cease and desist order. Before the operation restarted he would want to see underground electricity to NEC code, a plan for septic disposal, and carbon monoxide or smoke detection for the sleeping areas.

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 3 decisions summarised.

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