Planning Board Meeting ~ April 5, 2023

2023-04-05 · Planning Board · 1:24:23 · watch on YouTube →

The Planning Board met on April 5, 2023 with four voting members and two alternates present, days after town meeting had approved the resource protection and road amendments to the land use ordinance. The only application before the board, Deer Creek Crossing, asked to be tabled again while it waits on an Army Corps of Engineers permit; the board agreed and at the same time extended its own decision deadline from 60 days to six months so the item does not have to be re-tabled every meeting. The rest of the meeting was a working discussion of what ordinance work to take on in the coming year, covering permit fees, the resource protection expansion rules, housing under the new state law, solar and cell tower standards, and the historic district. The board settled on housing, solar and cell towers as its priorities, with housing to be narrowed to specific topics. The town planner also described a proposed ordinance committee of the leadership of the land use boards to set town-wide priorities after each town meeting.

What was discussed

1. 0:06
   Roll call and minutes

   John Talbot opened the meeting and confirmed a quorum with Tyler Hutchison, Juliet Caplinger, Allan Purinton and himself. There were no February minutes because that meeting had no quorum, so the board took up the minutes of March 1. John Talbot later noted he had not recognised Brian Lanoie and Anne Torregrossa, who are alternate members and may take part in everything except voting.

2. 0:06
   Town planner's update

   George Thebarge reported that he had finished updating the land use ordinance and the zoning map with the amendments approved at town meeting and had sent them to Kimberly to post on the website, with hard copies and 11 by 17 maps available to members on request. He confirmed the changes affect no pending application, and that Deer Creek would be vested against the new zoning in any case because it had applied and had substantive review before the amendments took effect. John Talbot thanked George Thebarge, the Conservation Commission and the residents who worked on the two ordinances passed at town meeting.

3. 0:06
   Deer Creek Crossing asks to be tabled

   Charles Burnham and Jack Doughty attended for Deer Creek and asked to be tabled again, saying they are still waiting on the Army Corps permit and it makes no sense to print another full set of plans until the Corps responds, since anything that changes means starting over. They described the contact as an email followed by a three-week wait, repeated. John Talbot said the board had two things to do: vote on the request and set a deadline.

4. 6:06
   Tabling and the decision deadline

   George Thebarge explained that once an application is determined complete a 60-day clock starts for a decision, and that Deer Creek was found complete in March, so going beyond that needs the applicant's agreement to a different time limit. The motion to table was amended to extend the deadline from 60 days to six months from the determination of completeness, which the applicants accepted, so the board would not have to re-table every two months. The applicants said the peer reviewer has signed off on all their changes except one detail to tweak, the survey and subdivision work is done and the fire chief has signed off.

5. 6:06
   How the ordinance got to where it is

   Asked what ordinance work to take on next, George Thebarge recapped: the 2018 comprehensive plan was adopted in April 2019, and the first step was an overhaul of the 2016 land use ordinance, which he described as internally disconnected and carrying 1970s-vintage subdivision regulations. That work pulled the gravel pit, historic preservation, mobile home park and addressing ordinances into the land use ordinance, and brought subdivision and site plan review into line with what most southern Maine towns use. Difficult subjects such as home-based businesses and roads were deliberately left out at that stage.

6. 12:00
   Cell towers and solar as gaps in the ordinance

   George Thebarge said the town still has no cell tower regulations, and that under the federal Telecommunications Act a contested application cannot be denied on the grounds that it is out of scale with the community, so without standards the town is effectively obliged to approve. He said solar farms are proliferating across the state, that one project is being explored in Durham, and that the only tool available would be the conditional use criteria. He also noted the practical limit of how many land use warrant articles can be put before a single town meeting.

7. 17:36
   Permit fees

   A member raised the fee schedule, noting the code enforcement officer had gone to the Select Board with concerns about cell towers and solar arrays but that the ordinance says nothing about either, and asked where the fee schedule now lives. Fees were taken out of the land use ordinance in April 2022 because they were out of date and inconsistent with other towns, and the budget committee had asked that fees cover the code enforcement officer's salary. Members recalled the Select Board being willing to change the customary fees but not to address cell towers and solar because there was no ordinance behind them.

8. 23:04
   What the fee comparison showed

   George Thebarge said the April 2022 amendment provides for fees to be set annually by the Select Board based on comparison with other towns and the actual cost of providing the service, and that the Select Board adopted the existing fees in June. His August report compared Durham with six comparable towns and found Durham mid to low, with some towns charging around $2,000 for a building permit against Durham's roughly $800; building permits rather than subdivisions are the main revenue source. John Talbot said a $1,000 increase would still leave Durham lower than anyone else and would have raised more than $30,000 last year on about 30 permits, a large share of the code enforcement officer's salary and costs. The report was lost in the shuffle during the turnover of town managers.

9. 23:04
   Whether the Select Board can set the new fees

   George Thebarge set out three classes of question going to Maine Municipal Association legal staff: fees that used to be specified in the ordinance, which the Select Board can clearly change; fees for things referenced in the ordinance but never charged for, such as addressing, which is questionable; and fees for activities the town does not regulate at all, such as cell towers and solar, where some towns charge around $8,000 for a review, which is more questionable still. The current cell tower charge was described in the meeting both as $75 and as no fee at all. Members hoped the answer would avoid needing an ordinance amendment and a warrant article.

10. 28:34
    Appeal fees for landowners newly in resource protection

    A member questioned whether the $70 fee to go to the Board of Appeals should apply to landowners newly brought into resource protection by the map change, who may already have spent thousands on a survey to make their case. Others were wary of waiving fees for particular uses and thought the Board of Appeals may already have hardship waivers. George Thebarge said the ordinance gives the Board of Appeals authority and responsibility to review the zoning map where district boundaries are in question, and that such a review can be requested not only by a landowner but by the Select Board, the Planning Board or the code officer.

11. 28:34
    Carving out existing home sites

    George Thebarge explained that the beginning with habitat layer is a rasterized GIS product whose boundary he smoothed, so the actual line on the ground is indeterminate, and that Inland Fisheries and Wildlife could be brought in to establish where it falls on a given property. He said the undeveloped habitat blocks mapping already carves out cleared areas around existing homes, and that he had discussed with Joe Roy after town meeting the idea of doing the same for resource protection so existing home sites would not need to go to the Board of Appeals for expansions. Joe Roy thought it worth looking at.

12. 33:39
    The 30% expansion rule

    Under the ordinance an existing non-conforming residential use in resource protection may be expanded by up to 30% with a Planning Board conditional use permit, and by more than 30% with Board of Appeals approval. George Thebarge said such applications would meet the conditional use criteria almost automatically, so the process serves little purpose, and that many towns let the code officer handle the first 30% through the building permit. Anne Torregrossa suggested doing exactly that, and members discussed what counts as an expansion, since the ordinance language covers expansion of a use and could take in a shed, a swimming pool or a detached accessory dwelling in a new location.

13. 39:14
    Whether the expansion rule is worth the time

    Asked how often a 30% expansion request has come before the board, members said they could not recall one. A member noted the code enforcement officer is now requiring permits for additions he sees being built without them, so numbers could rise. The board agreed to leave it and see what happens rather than make it a priority, while agreeing it should eventually be made simpler.

14. 44:37
    Timing of the housing law and the town's options

    The board discussed the two bills before the legislature: one moving the deadline from July 1, 2023 to July 1, 2025, and one moving it to October 1, 2023 and exempting towns under 10,000 population. Members noted the legislature sits until the end of June and that the exemption bill may have been carried over. The available votes were canvassed: town meeting in April 2024, a November referendum election, a possible separate town vote on two 2022 budget items that overran and were withdrawn, and the June school budget meeting, with articles due this month, which members thought too tight.

15. 49:52
    What happens on July 1

    George Thebarge said the code officer has been advised by the town attorney that from July 1, where the local ordinance contradicts a specific state law, he must follow the state law. He gave a live example: a property owner has applied to tear down an existing single family dwelling whose garage was converted to an apartment and build a duplex, asserting a right under the new law, and has said they will appeal the code officer's refusal to the Board of Appeals; another party wants to build multi-family on the same basis. The town can adopt its own provisions later but only within the state's parameters, and for instance could require two acres per dwelling unit, matching its single family requirement, once town meeting votes it.

16. 55:25
    Housing as the first priority

    Anne Torregrossa argued housing should be the board's first conversation regardless of what the legislature does, saying Durham's ordinances are too restrictive, that she would like to see the downtown development area brought back with a smaller minimum lot size per dwelling unit, and that the current pattern is carving farmland, forest and open space into two-acre chunks without serving housing or preserving rural character. Members agreed to start with housing.

17. 55:25
    Solar against cell towers

    Members thought solar the more likely source of applications and questioned how many cell towers Durham will see, having reviewed one in recent years. George Thebarge maintained the exposure, saying the Telecommunications Act allows about 90 days to decide and the conditional use criteria alone would probably not survive a challenge. A member argued for using model ordinances from other towns rather than starting from scratch; George Thebarge said model ordinances exist for both solar and cell towers, unlike housing, where the town is working from a new and unfinished state law.

18. 1:00:30
    Subdivision review and housing

    Members noted that a duplex plus an accessory dwelling unit is three dwelling units on one lot and triggers subdivision review, and that the new state law specifically does not remove that requirement. Anne Torregrossa said the board should revisit the distinction between minor and major subdivisions, calling it overkill to put three units or three lots through the full process, and that road standards feed into the same question.

19. 1:06:03
    The historic district

    George Thebarge said the Southwest Bend historic district ordinance was copied from communities such as Portland, Castine, Thomaston and Yarmouth that have entire historic neighbourhoods, and does not fit Durham's situation or its capacity to do the reviews. Ten buildings have been determined by the Maine Historic Preservation Commission to be listed or eligible: the Bagley house, the Osgood house, the West Durham Methodist Union Church and Shiloh Temple are listed, and the Friends house, the house next to the Union Church, the house on the corner across from the gazebo and two further homes are eligible. Only three of the ten are inside the district, and the ordinance requires the code officer and Planning Board to review any project within a quarter mile of any of them, which George Thebarge said has never been done.

20. 1:06:03
    The commission's reversal

    George Thebarge said the ordinance calls for commission members with expertise in architecture, engineering, historic preservation or urban planning and that no one on the commission has had those qualifications. After a year and a half of work he recommended eliminating the Southwest Bend district, focusing on the ten individual sites, narrowing review from a quarter mile to abutting properties, and having the code officer administer it with advisory opinions from a historic district committee and the state. The commission voted to go forward and then reversed itself two meetings later, wanting to keep the commission and extend its jurisdiction to all ten sites, which he described as an impasse.

21. 1:11:30
    A proposed ordinance committee

    George Thebarge described an idea he has outlined for the town manager and Select Board: a committee of the leadership of the Planning Board, Board of Appeals, Conservation Commission, Select Board and Historic District Commission, meeting after town meeting to review what happened, set priorities against the limited time available, delegate each issue to a group over the summer and receive proposals after Labor Day. Members said that if the Historic District Commission wants to expand its district it should lead and make the case to residents, with the Planning Board acting as the impartial body that runs the public hearing.

22. 1:17:05
    Setting the priorities

    John Talbot said the consensus he heard was housing, solar and cell towers. Tyler Hutchison asked that the board be specific about which housing topics rather than simply saying housing, given how many had been raised. Members discussed the practical limits on a higher density downtown district: there is no public water or sewer, half-acre lots would probably need public wells because of the separation required from septic systems, and creating a growth district would likely mean updating the comprehensive plan.

23. 1:22:54
    Workshops and adjournment

    George Thebarge suggested holding a workshop on the second Wednesday of the month when there is a pending application to deal with at the regular meeting, and otherwise doing the ordinance work at the regular meeting. Members raised attendance as a concern if that means two meetings a month, and agreed to settle it at the next meeting. The board adjourned at 7:45 p.m.

What was decided

• 0:06
  Accept the minutes from the March 1, 2023 meeting as presented, moved by Allan Purinton and seconded by Juliet Caplingerpassed
• 6:06
  Accept the Deer Creek applicant's request to table the application, and extend the deadline for a decision from 60 days to six months from the determination that the application was complete, with the applicant's agreement. Moved by Allan Purinton, seconded by Juliet Caplinger, carried 4-0passed
• 39:14
  Leave the resource protection 30% expansion rule alone for now rather than make it a priority, and see whether requests start coming intabled
• 1:17:05
  Agreed, without a formal vote, that the board's ordinance priorities for the coming year are housing, solar and cell towers, with the housing work to be narrowed to specific topicspassed
• 1:22:54
  Settle the workshop schedule at the next meetingtabled
• 1:22:54
  Adjourn at 7:45 p.m., moved by John Talbot and seconded by Juliet Caplingerpassed

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_minutes04_05_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.

• accept the minutes from the March 1, 2023 meeting as presentedcarried 4-0

  Moved by Allan Purinton, seconded by Juliet Caplinger

• accept the request to table the applicationcarried 4-0

  Moved by Allan Purinton, seconded by Juliet Caplinger

• adjourn the meeting at 7:45 p.mcarried 4-0

  Moved by John Talbot, seconded by Juliet Caplinger

Worth knowing

• 23:04
  Durham charges around $800 for a building permit where comparable towns charge up to about $2,000. On roughly 30 permits a year, a $1,000 increase would raise more than $30,000 and still leave Durham the lowest of the towns compared. Whether the Select Board can set fees for activities the ordinance does not regulate, such as cell towers and solar, has gone to Maine Municipal Association legal staff.
• 49:52
  From July 1 the code officer has been advised by the town attorney that where the local ordinance contradicts the new state housing law he must follow the state law. A property owner has already applied to replace a single family house with a duplex on that basis and has said they will appeal the code officer's refusal to the Board of Appeals.
• 1:06:03
  Ten Durham buildings are listed or eligible for listing on the national register, but only three of them are inside the Southwest Bend historic district. The ordinance requires review of any project within a quarter mile of any of the ten, which the town planner said has never been done, and the commission has never had a member with the expertise the ordinance requires.
• 12:00
  The town has no standards for cell towers or solar installations. The town planner said that under the federal Telecommunications Act a contested cell tower application decided without standards is effectively an approval, and that one solar project is already being explored in Durham.

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 6 decisions summarised.

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