Planning Board Meeting ~ October 4, 2023

2023-10-04 · Planning Board · 1:53:35 · watch on YouTube →

Planning Board meeting of October 4, 2023. Two subdivision amendments were approved quickly: a lot line change at the turnaround in Woodland Acres Section Two, conditioned on the plan showing June Cruz Drive rather than Arnold Way and on a quitclaim deed for a triangle of road right of way, and a combination of lots at the Bowie Hill subdivision that takes it from 13 lots to 11. The bulk of the meeting was spent on the draft land use ordinance amendments the board must get to the select board by late January for the April town meeting, chiefly the housing density changes required by the 2022 state law. Anne Torregrossa found that the draft's new definition of housing unit would allow three duplexes on a lot, which was not the intent, and questioned whether the planning board can lawfully approve expansions of non-conforming uses that would amount to variances; George Thebarge agreed to redraft and to seek guidance from MMA. The board set out a timetable of a public information meeting on November 15 for housing density and solar, with the board of appeals item pushed to December after Anne Torregrossa said seeing a technical draft for the first time two weeks before a public meeting is how mistakes get made. The board closed with an update on the stalled GPCOG campus study and a discussion of what happens to developers who do not complete what they were approved to do.

What was discussed

1. 3:41
   Quorum, agenda amendment and minutes

   John Talbot opened with three members present and reminded the board that its rules require three yes votes out of a formal membership of five for any approval, regardless of how many are in the room. Brian Lanoie asked to add an update on the GPCOG Municipal Vision Plan and a discussion of repercussions for developers who do not meet their obligations. The minutes of September 6, 2023 were then accepted.

2. 3:41
   Town planner's report: housing starts and solar standards

   George Thebarge reported 13 new single family starts so far this year and no duplexes, well under the cap of 45 that triggers a review under the comprehensive plan, and attributed the drop from around 30 last year to high interest rates. He and John Talbot had attended the Conservation Commission, which agreed he would draft the solar design and performance standards while the commission spends the next year on wider questions: zoning treatments to protect agricultural land, a conservation mitigation fee on solar farms as Topsham has, and invasive species surveys.

3. 8:53
   Historic preservation and seating a fourth member

   George Thebarge said the town manager had asked him at short notice to brief the select board the following Tuesday on the town's historic preservation regulations and possible next steps, and that he and John Talbot would meet the leaders of the land use groups the following week; he noted the historic district commission currently has no leadership. Anne Torregrossa arrived and the chair raised her to voting membership for the meeting. No residents came forward under public comment.

4. 8:53
   Woodland Acres Section Two lot line amendment, Map 9 Lot 9K1

   Wayne Wood, surveyor, appeared for Kohen Bailey and John Libby. A house at the end of the road was built slightly closer to the turnaround than setbacks allow, creating a title problem, and his solution is to pull the end of the road in at that corner, which requires an amendment to the recorded plan. The plan still carries the old road name Arnold Way and needs to be changed to June Cruz Drive.

5. 14:19
   Review of the Woodland Acres amendment

   George Thebarge said the amendment creates no new lots so it can go straight to final plan review, and that the deeds show Kohen Bailey and John Libby each own half the fee interest in the road. Taking a triangle out of the road right of way and adding it to the Bailey lot would require a quitclaim deed from John Libby, who was not present when the item began. Board members said they needed that in writing rather than a verbal assurance, and that the plan itself, not just note 12, must show the new road name.

6. 19:43
   Vote on the Woodland Acres plat

   The board approved the plat with two conditions and said it will not sign until both are produced, so the pace is up to the applicant. Members confirmed with the planner that taking the slice off the hammerhead does not affect compliance with the turnaround standards.

7. 19:43
   Bowie Hill subdivision lot combination, Map 10 lots 1, 2, 3, 11 and 12

   Charles Burnham explained that a buyer asked for a larger lot and the owner then decided to rework the others, erasing the lot line between 11 and 12 and between 1 and 2 and moving the back corner of lot 3 to a perpendicular angle to redistribute area. The subdivision goes from 13 lots to 11, one extra property pin is added, and there is no change to open space or the perimeter.

8. 25:26
   Vote on the Bowie Hill amendment

   The board accepted the amendment on condition that a note be added to the general notes describing the lot line change and citing the original recorded plat book and page. Members told the applicant not to record the marked-up version with the red bubbles on it.

9. 25:26
   Housing density: background and the state mandate

   George Thebarge explained that for at least 20 years Durham has allowed a single family home plus an accessory unit of no more than half its size on any two acre lot, or a duplex with an extra half acre. A state law passed in April 2022 requires every town to allow two additional housing units wherever an existing unit stands, so Durham has only the third unit to deal with. The proposal is to allow the additional accessory dwelling unit on every two acre lot subject to existing design controls, and to allow the third full size unit but at two acres per full size unit; he said MMA and the Department of Economic and Community Development both thought this would likely comply, subject to the town's own attorney.

10. 36:26
    Problems with the draft definitions

    Anne Torregrossa asked why a new definition of housing unit was added when it overlaps the existing definition of dwelling unit, and showed that because it counts a two family dwelling as one housing unit, the draft's cap of three housing units per lot would permit three duplexes. George Thebarge agreed that was not the intent, and agreed to drop the housing unit definition, settle on either minimum lot size or minimum lot area rather than both, and add a note that accessory units are not counted as separate dwelling units when calculating lot area. The board also agreed to strike the leftover multi-family definition of three to six units, since only a three-family will be allowed. The per-unit lot area figure is garbled on the recording, but the intent stated throughout is two acres per full size unit.

11. 46:34
    Scope of the public participation process

    The board considered whether to use the coming survey and public meetings to reopen wider growth management questions or to stay narrow. Members agreed to keep it narrow, presenting close to the actual warrant language and asking residents whether they would vote yes, and to take up the bigger questions after town meeting. George Thebarge said the 2018 comprehensive plan has a letter of consistency good through 2028, and that a five-year check-in could be done next year.

12. 51:42
    Timetable for the ordinance amendments

    Working backwards from an April town meeting, the board would hold a public information meeting in November, run a survey in December, review results in January, send recommendations to the select board in late January, and hold the formal public hearing on the select board's drafted article no less than seven days before town meeting. Four items are potentially in play: housing density, solar standards, board of appeals treatment of expansions of non-conformity, and possibly historic preservation. Members noted that unlike resource protection, no property owner will get a notice about these changes, so getting word out through Facebook, the quarterly newsletter and election day tabling will matter.

13. 57:10
    Solar standards draft

    George Thebarge described a three-tier approach based on the area the panels occupy rather than kilowatts: up to 2,000 square feet needs only code officer review; from 2,000 square feet up to about half an acre requires planning board site plan review; anything larger requires conditional use review as well. The draft covers applicability, submissions including a decommissioning plan with costs and a mechanism to make sure it happens, and performance standards; he cited a system in Stafford, Virginia where a 400 foot radius to the nearest house was set based on sound studies of inverter noise. Members agreed that where solar may go is next year's question and this year is limited to what the chair called the technical infrastructure standards.

14. 1:08:18
    Board of appeals and expansion of non-conforming uses

    The draft sent to the board of appeals would move zoning boundary determinations to the planning board and give the code officer authority for expansions up to 30 percent of existing floor area, with anything beyond that going to the planning board for conditional use review rather than the board of appeals. Anne Torregrossa said she is not convinced the planning board can lawfully approve an expansion beyond what the ordinance explicitly states, because that is effectively a variance and only the board of appeals can grant those. Members noted the current arrangement is backwards, since conditional use criteria apply to expansions up to 30 percent while the board of appeals reviews only groundwater above that, and agreed George Thebarge would write to MMA setting out what the town does now and what it proposes to delegate.

15. 1:13:19
    Disagreement over the schedule

    Anne Torregrossa objected that the board would see the non-conformity draft for the first time on November 1 and then put it to a public meeting two weeks later, saying that is how mistakes get made on technical material and that the solar draft is in better shape because the Conservation Commission has argued it through. The board settled on looking at solar and the non-conformity draft on November 1, holding the public information meeting on November 15 for housing density and solar, returning to the board of appeals item on December 6, and pencilling in December 13 for a further public meeting. Members also noted that if it cannot be sorted out properly the item can simply wait a year, since residents can still go to the board of appeals as they do now.

16. 1:34:50
    GPCOG Municipal Vision Plan

    George Thebarge said the town has a grant through a town manager initiative to study the town campus, covering the town hall, the ball field now being expanded, the Eureka Center and the fire station, to produce a long range plan instead of repeatedly putting out fires over meeting space, internet and lighting. GPCOG was due to start the work in July and has not begun. GPCOG has also agreed to help with public outreach and has a commercial Survey Monkey licence, which would be an improvement on the uncontrolled Microsoft survey used last year, though members said they must be ready to run it themselves if GPCOG is late again.

17. 1:34:50
    Repercussions for developers who do not complete their obligations

    Brian Lanoie raised the Ruby Lane subdivision, where the road was to be paved after the fourth house and was not. George Thebarge said the board can refuse further approvals until earlier conditions are met, that the planning board itself has no enforcement authority, which rests with the code officer, town manager and select board, and that the town has taken developers to court in recent years. He said past practice accepted personal recognisance instead of guarantees, citing one developer whose subdivision had no performance guarantee at all and went sour when he died, and that the culture has been changing over five years.

18. 1:45:29
    Building permits and performance guarantees

    Members discussed whether the code officer can withhold a building permit from a lot buyer because the developer is out of compliance, and were told that depends on whether the ordinance or the conditions of approval say so. On Ruby Lane the bond covered only the paving, at $60,000, not the road construction. Going forward the board is using conditional approval, with a restriction recorded on the plan against selling lots or issuing building permits until the infrastructure is done, plus a site stabilisation guarantee at the start and a letter of credit that can be reduced as work is completed, as was done at Deer Creek.

19. 1:51:14
    Submission quality and adjournment

    Members complained that applicants use board meetings to be told what to do next and suggested charging a fee for each additional meeting beyond a set number, and that plainly incomplete submissions should be refused rather than heard. The board then adjourned.

What was decided

• 3:41
  Amend the agenda to add the GPCOG Municipal Vision Plan discussion after Item 6(a), moved by Brian Lanoie and seconded by Tyler Hutchison; the minutes record 3-0passed
• 3:41
  Accept the minutes of the September 6, 2023 meetingpassed
• 19:43
  Approve the Woodland Acres Section Two plat amendment with two conditions, that the final version show June Cruz Drive rather than Arnold Way and that a quitclaim deed transfer the triangle of road right of way into the Bailey lot, moved by John Talbot and seconded by Tyler Hutchison; the minutes record 4-0passed
• 25:26
  Accept the Bowie Hill subdivision amendment combining lots, on condition that a note be added to the general notes describing the lot line change and citing the original recorded plat book, moved by Tyler Hutchison and seconded by Brian Lanoie; the minutes record 4-0passed
• 1:13:19
  Set the schedule: solar and the non-conformity draft to be reviewed November 1, public information meeting November 15 on housing density and solar, board of appeals item returning December 6 with a possible public meeting December 13passed
• 1:08:18
  Ask MMA for guidance on the limits of delegating expansions of non-conforming uses to the code officer and the planning board before drafting furtherpassed
• 1:51:14
  Adjourn the meeting, moved by Tyler Hutchison and seconded by Brian Lanoie; the minutes record 4-0passed

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 pb_meeting_minutes_10_4_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.

• amend the agenda to include the discussion for the GPCOG Municipal Vision Plan after Item 6 (a)carried 3-0

  Moved by Brian Lanoie, seconded by Tyler Hutchison

• approve this plat with two (2) conditions, one is that the final version have June Cruz Drive (formerly Arnold Way) and the other is to have a quit claim deed transferring ownership of the small triangular portion out of…carried 4-0

  Moved by John Talbot, seconded by Tyler Hutchison

• accept the amendment, with the condition that the note is added to the general notes on the plan mentioning the change in lot lines and the original book and page number is recordedcarried 4-0

  Moved by Tyler Hutchison, seconded by Brian Lanoie

• adjourn the meetingcarried 4-0

  Moved by Tyler Hutchison, seconded by Brian Lanoie

Worth knowing

• 3:41
  There have been 13 new single family housing starts in Durham so far this year and no duplexes, down from around 30 last year, against a cap of 45 that would trigger a review under the comprehensive plan. The planner attributed the drop to interest rates.
• 36:26
  Anne Torregrossa found that as drafted, the new definition of housing unit counted a duplex as a single unit, so the proposed limit of three housing units per lot would have allowed three duplexes on one lot. The planner agreed that was not the intent and will redraft.
• 1:13:19
  The board disagreed over pace. The board of appeals draft on expansions of non-conforming uses would have gone to a public meeting two weeks after the board saw it for the first time; Anne Torregrossa said that is how mistakes get made on something this technical, and the item was pushed back to December with MMA guidance sought first.
• 1:40:09
  At the Ruby Lane subdivision the road was supposed to be paved after the fourth house and was not, and the bond covered only the paving, at $60,000, rather than the road construction. The planner said the board can refuse further approvals on that subdivision until earlier conditions are met, and that the planning board itself has no enforcement power.

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: 1 passage of motion language, against 7 decisions summarised.

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