Durham Select Board Public Hearing 3-15-22

2022-03-15 · Select Board · 1:38:05 · watch on YouTube →

A select board public hearing on March 15, 2022 on four proposed land use ordinance changes headed for the April 2 town meeting. The chair explained that the select board puts these questions on the ballot without attaching a recommendation, and turned the presentation over to the town planner, George, with Al Burnson (?) present from the planning board. Most of the evening went to the resource protection changes, which would remove from the district land that meets none of the six criteria set in the 2018 comprehensive plan, correcting boundaries drawn in 2002 from mapping decades older still; nothing would be added this year, with any additions left to a second phase in 2023. The second item was the road ordinance, covering back lot driveways, private ways for family development, and road standards keyed to the number of lots served rather than to whether a road is public or private. A resident proposed an amendment so that a private way would never have to be paved; the chair took an informal show of hands, found roughly two thirds of the room in favour, and said the board would take it up at its meeting the following Tuesday. The recording ends during comments on the road ordinance wording, before the remaining proposals were reached.

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. 0:02
   How the hearing would run

   The chair explained the four proposed land use ordinance changes would be taken one at a time, starting with resource protection, with hands raised rather than a podium. He noted that unlike budget articles, which carry select board and budget committee recommendations, these carry none: the board's role is to put them out for a public vote.

2. 0:02
   Background: the 2002 growth cap and the 2018 comprehensive plan

   George (?) said he began working for the town in 2018 on an update to the comprehensive plan last done in 2002, when Durham, like much of southern Maine, was in a building boom and adopted a limit of 45 new housing starts a year. The cap was reached only in its first year, when it caused a run on permits, and the town has averaged about 15 new homes a year for the past decade, so the plan was judged unworkable under state guidelines.

3. 0:02
   What the new plan does instead

   The 2018 plan rests on guiding principles including agriculture and balancing property rights with the public interest, and relies on rural zoning with a two-acre minimum lot size and 300 feet of road frontage, resource protection zoning, and clustering within subdivisions that allows one-acre lots with dedicated open space. An addendum provides that if more than 45 units are built in a year, or the planning board approves more than 100 subdivision lots, a special town meeting would be called to consider a moratorium and whether the town needs a growth management plan.

4. 5:40
   Why the resource protection map is out of date

   Durham has far more land in resource protection than most towns, drawn in 2002 from floodplain mapping of the 1970s and 1980s; one criterion still refers to the Androscoggin floodplain as defined by Army Corps of Engineers flood records from 1936. Much better topographic and flood mapping has become available since, and the comprehensive plan directs the town to update the zoning map so that restrictions rest on accurate data.

5. 5:40
   The six criteria for resource protection

   George set out the criteria: the 100-year floodplain on the FEMA maps, state shoreland zoning within 100 feet of streams and along the Androscoggin including its floodplain, forested and emergent wetlands in place of the swamps shown on the old tax maps, land within 250 feet of waterfowl and wading bird habitat rated moderate or high value by Inland Fisheries and Wildlife, and one criterion new in the comprehensive plan covering areas where several of these overlap. His analysis used mapping tools and data supplied by the Greater Portland Council of Governments.

6. 5:40
   The two-phase approach

   The select board agreed the approach in October. Phase one, on this year's warrant, removes from resource protection any land that meets none of the criteria and puts it in the rural agricultural zone. Phase two, to be worked up next year with the planning board and conservation commission, would apply the same criteria to land outside the current district that does meet them. Letters and maps were sent to every property owner whose land would come out.

7. 11:34
   Nothing is added this year

   George (?) offered to send detailed air photo maps from the town's new GIS to anyone who wanted a clearer picture than the small map mailed out. Both he and the chair stressed that no property will be added to resource protection in this round, and that when additions are proposed next year owners will have mechanisms to dispute them.

8. 11:34
   Whether new FEMA maps apply automatically

   Asked whether the town automatically accepts a revised federal map, George (?) said no: any change to the zoning map, including these removals, requires a town meeting vote. The phrase 'as shown on the zoning map' is being added for that reason, and a questioner pointed out one criterion where it was missing.

9. 11:34
   Why some farm fields are in shoreland zoning

   DEP imposed shoreland zoning on Durham in 1994 because the town's own zoning did not meet state criteria. To get the town's ordinance approved, several drained farm fields that qualify as emergent wetlands, off Bowie Hill Road, near the Auburn line and elsewhere, had to be included, because under the Clean Water Act they remain wetlands even with the drainage trenches cut through them. George (?) said his report suggests the town might challenge this, since it is hard to argue those fields need the same protection as the river.

10. 17:31
    The farm field areas are not part of this vote

    Asked whether those areas stay or go, George (?) said they stay until changed, that only what is shown on the phase one map is being altered, and that challenging the state designation is a separate matter for a later phase.

11. 17:31
    Perennial and intermittent streams

    George (?) explained the technical definition of a perennial stream, which has water most of the year and a mineral bottom scoured by running water and may still be dry in August, against an intermittent stream. The two carry different setbacks and buffering requirements.

12. 17:31
    Who bears the burden of proving the map wrong

    Asked whether a landowner has to disprove a mapped feature, George (?) said yes, and cited the equestrian centre on Royalsborough Road, whose barn and paddocks fell inside resource protection under the old mapping. The owners took detailed information to the board of appeals and obtained relief, but he said having to do that case by case is why the map should be fixed for everyone.

13. 23:18
    Wetland delineation at the owner's expense

    A resident whose land includes one of the added farm field wetlands objected that the boundary can only be fixed by hiring a soil evaluator to do an on-the-ground wetland delineation before any permit, which costs the owner money. George (?) said the requirement comes from state and federal law rather than the town, and offered to go through the part of his report dealing with that situation.

14. 23:18
    Flood zone designations and abatements

    A resident described discovering on refinancing in 2003 that the property was in a flood zone, hiring engineers to survey from the flood line to the basement, and having FEMA revise the map. On valuation, the chair said an owner who believes a designation has reduced the value of their land should make that case to the assessor, and that the town grants six to twelve abatements a year to people who do.

15. 23:18
    State minimums and going beyond them

    Asked whether the town's resource protection exceeds what the state requires, George (?) said yes on both counts: state law requires floodplain and slopes over 20 percent within 250 feet of the Androscoggin to be in resource protection, and a town may go further if it does so through a comprehensive plan adopted in a public process and backed by good data.

16. 29:22
    What the state actually requires

    Al Burnson (?) and the planning board hired Michael Morse (?), a former DEP shoreland zoning coordinator, to determine what must be in resource protection under state law. His conclusion was that little of it must be, beyond some areas around Runaround Pond and the river which need some form of shoreland zoning but not necessarily resource protection.

17. 29:22
    How the criteria were settled during the comprehensive plan

    Scenarios put to residents ranged from adding substantially to resource protection to rolling it all back to state minimums, and the response was close to evenly split, which is why balancing private property rights against resource protection became one of the plan's principles. The plan settled on criteria based on the habitat data, and the current proposal follows those criteria.

18. 29:22
    Who drove the comprehensive plan process

    Asked who set the choices offered to residents, members explained it was a comprehensive planning committee made up of planning board and select board members and other citizens, with a facilitator hired from the Greater Portland Council of Governments, and that the committee approved the survey and materials that went out.

19. 34:39
    Questions about individual parcels and grandfathering

    A resident dividing land among family members near Meadowbrook (?) asked whether a lot would be grandfathered. George (?) said that if it meets none of the criteria it will be pulled out this year, and that nothing could be added before April of next year at the earliest, so there was a year in hand. He explained the 100-foot setback along streams against the 250-foot shoreland zone around large open wetlands and Runaround Pond.

20. 40:19
    Objections from farm field owners

    A resident described the drainage ditches in the field being dug when he was a child, said the state had never raised the matter with him, and questioned whether any of this was necessary. The chair repeated that a change in value is a matter for the assessor, and George (?) said the former state regulator agreed the farm field treatment makes no sense and might be open to legal challenge.

21. 45:37
    Whether the town or the landowner challenges the state

    Asked whether a landowner has to fight alone, George (?) said his report recommends the town and landowners cooperate, since DEP is more likely to listen to both together, and set out a three-part strategy: persuade DEP staff, appeal to the Board of Environmental Protection, then take it to legislators if the answer is that the law requires it. The chair said the board would at least have a conversation with town counsel about feasibility and the likelihood of success.

22. 45:37
    Existing buildings and additions

    Members explained that what is already on the ground does not change, but adding to it may be affected, so a garage on a lot brought into resource protection in a later phase could be an issue, and that once a designation is in effect there is little leeway.

23. 51:28
    Conservation incentives as an alternative to regulation

    A resident asked who to approach about incentives if more of their land goes into protection in phase two. George (?) described the land acquisition and conservation easement programme he had run in Falmouth over 25 years, funded partly by Land for Maine's Future grants and the Trust for Public Land, and members named the Royal River Conservation Trust as an organisation doing similar work locally.

24. 51:28
    Town meeting date and what happens if it fails

    The chair confirmed town meeting is April 2 at 9 a.m. If the resource protection article fails, the existing boundaries stay in place. Members said phase two would then be unlikely to go forward, and that the board would try to work out whether it was one aspect or the idea of any change that voters objected to. A resident asked the board to explain why passing it matters; the chair said it is a voter decision and that some conservation commission members are not on board with removing protection.

25. 57:07
    Why the phases were separated

    Members explained the two questions were split so that one direction would not be a casualty of the other. Asked why some grey areas remain in the district, George (?) said those areas do meet the criteria; only land meeting none of them is proposed for removal. He added that in 40 years of doing this, his rule is to correct bad information before basing policy on it.

26. 57:07
    Second proposal: the road ordinance

    George (?) explained that after the 2018 plan the first job was a wholesale rewrite of the land use ordinance, which had been patched together and was barely readable, deferring the hard policy questions. The road proposal has three parts: back lot access, private ways for family development, and the road construction standards.

27. 57:07
    Back lot access

    The comprehensive plan recognised that requiring a 20-foot road running 300 to 600 feet to serve a single back lot defeats the purpose of allowing back lots, which most towns serve with a driveway.

28. 1:02:07
    Private ways and family development

    Because state law exempts lots given to family members from subdivision review while the rural zone still demands 300 feet of frontage per lot, towns allow a common road, called a private way here, without the wetland, wildlife and hydrology review a subdivision requires. What is required is an engineered road design built to standard and a maintenance agreement, which matters because family members eventually move on and because public safety vehicles, including the ladder truck, have to get in.

29. 1:02:07
    Simplifying who approves a private way

    A proposal to abolish private ways and send everyone through subdivision review was voted down last year. The provisions currently sit in three places, with the road commissioner and code officer approving the road and the planning board approving the maintenance agreement, and confusion over who has authority. The amendment creates a private way section and makes the road commissioner the only town official involved, which George (?) said the planning board endorsed in February on the ground that it is an engineering review with no public process.

30. 1:02:07
    Road standards by number of lots served

    The existing subdivision road standards rest on the old growth management plan's distinction between roads the town would accept and private roads, but the town has no street acceptance policy and is accepting no roads. The proposal moves to standards based on how many homes a road serves and the traffic generated, with a minor local road up to nine lots and a local road up to 26, and allows gravel construction for the smaller categories.

31. 1:07:38
    Who can use a private way, and existing substandard roads

    Asked whether private ways are only for family, George (?) described the exemptions, including the homestead exemption available after five years' residence, and gave an example in which several lots could be created without subdivision review. On whether extending an existing substandard road requires upgrading the older section, he acknowledged it is a hard question every town struggles with.

32. 1:07:38
    The town would not become responsible for private roads

    Asked directly whether the change would make the town responsible for plowing and maintaining roads such as those named by residents, both George and the chair said nothing in the proposal obliges the town to take on any road, that the town has no acceptance policy, and that accepting roads would be an entirely separate question.

33. 1:12:42
    Frontage and driveway width for back lots

    Members worked through the arithmetic: 300 feet of frontage for the front lot plus a 50-foot right of way for the back lot, so about 350 feet in all. The single back lot driveway requirement drops from 20 feet wide to 16, with the driveway limited to serving one lot, a turnaround required at the end, and the fire chief required to sign off before a building permit issues. George (?) said the fire department had pushed for 20 feet because back lot driveways tend to end up serving several houses.

34. 1:18:06
    Defining an adequate turnaround

    A member asked whether the phrase 'a turnaround adequate to serve public safety vehicles' should carry some guidance so an applicant knows where to start, perhaps capped at the subdivision requirement. George (?) said leaving it to the fire chief allows something smaller where that will do, whereas a prescribed dimension has to be built whether or not it is needed. A resident with a hammerhead already at the end of a road asked whether one turnaround serving several family driveways would satisfy the requirement, and was told it would if the fire chief agreed.

35. 1:18:06
    Cost of a road as a barrier for family lots

    A resident said the point of the back lot provisions is to let families house their children in Durham rather than sell to a developer, and that being told to spend 60 or 70 thousand dollars on a 20-foot road through wooded land is discouraging. He encouraged the board to go further in that direction.

36. 1:23:49
    Aquifer protection district

    George (?) explained the three-acre minimum lot size in the aquifer protection district, which may rise if a groundwater analysis requires it. The mapped sand and gravel aquifers cover three areas and are protected because they could serve as a public water supply.

37. 1:23:49
    Todd's amendment: private ways need not be paved

    Todd (?) proposed amending section 5.2.3(e) so that construction of a private way must meet the construction standards for minor local roads in the appendix except for paving, together with the erosion and sediment control standards, leaving owners free to keep a gravel road under their maintenance agreement. As drafted, the paving requirement follows the subdivision rule that kicks in after the third lot. George (?) said he had offered Todd that language, and the chair said the purpose of the hearing was to take exactly this kind of input.

38. 1:29:41
    Long-term risk of unpaved private ways

    Members and residents discussed the pattern in which a back lot becomes three family lots and, a generation later, land owned by someone else with more lots added, ending as a de facto subdivision on an undersized road the fire department cannot use. A resident with experience of a subdivision built off a private way in Freeport (?) described the maintenance disputes that follow.

39. 1:29:41
    Show of hands on the paving amendment

    The chair asked those in favour of language under which a private way would never have to be paved, whatever the number of lots, to raise their hands, and estimated roughly two thirds of the room did so, calling it a data point rather than anything scientific. He said the board would discuss and vote on the change at its meeting on Tuesday, that any revision would be reposted, and that everything must be posted at least seven days before town meeting, giving until March 26.

40. 1:29:41
    Road and driveway widths

    A resident said a contractor had described 14 feet as a standard road width, and George gave the reference points: a travel lane is typically a minimum of 10 feet, 16 feet is the figure for a driveway, and fire departments would ask for 18. He described a 14-foot private way in Falmouth where two vehicles cannot pass without one leaving the road.

41. 1:34:58
    Driveway grade within the right of way

    A member questioned the change from a maximum 10 percent to 3 percent grade within the right of way, noting 3 percent is close to flat and that no justification was given. George (?) said it is a standard adopted by most towns: a driveway running at 10 percent right to the shoulder can put a vehicle out into the road on a slippery day, and the flatter section creates a landing for one vehicle.

42. 1:34:58
    Wording comments on the driveway review exemption

    A member questioned the last sentence of section 5.2, which exempts driveways and commercial entrances approved by the planning board during subdivision or site plan review from separate review by the public works director. George (?) said the wording is there to make clear the planning board must actually address the standards, with input from the road commissioner or a peer review engineer, for the exemption to apply. The recording ends during this exchange.

What was decided

• 1:29:41
  Todd's (?) proposed amendment to section 5.2.3(e), so that a private way would have to meet the minor local road construction standards except for paving, was referred to the select board's meeting the following Tuesday rather than settled at the hearing. Any revised wording would have to be reposted by March 26 to stand for the April 2 town meeting.tabled
• 45:37
  On challenging the DEP designation of drained farm fields as shoreland wetlands, the chair said the board would at least have a conversation with town counsel, with George consulting, about feasibility and the likelihood of success. No vote was taken and no commitment beyond that was recorded.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

• 5:40
  Durham's resource protection boundaries were drawn in 2002 from mapping made decades earlier, and one criterion still defines the Androscoggin floodplain by Army Corps of Engineers flood records from 1936. The April 2 article only removes land that meets none of the six criteria in the 2018 comprehensive plan; nothing is added to resource protection this year.
• 17:31
  Where the map is wrong, the burden currently falls on the owner. The equestrian centre on Royalsborough Road had its barn and paddocks mapped inside resource protection and had to take its own data to the board of appeals to get relief before it could run a day camp.
• 11:34
  Several drained farm fields are treated as emergent wetlands, so shoreland setbacks apply to them, because DEP required their inclusion in 1994 before it would approve the town's own shoreland zoning. The planner's report suggests challenging that, first with DEP staff, then the Board of Environmental Protection, then the legislature, and residents were told that if the designation lowers their land's value they can ask the assessor for an abatement.
• 1:29:41
  On a show of hands, roughly two thirds of those present favoured language under which a private way would never have to be paved regardless of how many lots it serves. The chair said the board would take it up on Tuesday and that any change must be posted by March 26 to appear at town meeting.

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