Planning Board Meeting ~ June 7, 2023

2023-06-07 · Planning Board · 2:28:24 · watch on YouTube →

Regular Planning Board meeting on June 7, 2023, chaired by John Talbot with six members present. The only application on the agenda, the Deer Creek subdivision, was tabled again to July 5 while the applicant waits on an Army Corps of Engineers report expected in mid-June. Most of the evening went to George Thebarge's research on LD 2003 and the land use ordinance: he set out what the state law will require in Durham, compared the state's definitions with the town's, and the board agreed to bring two options to its July meeting rather than reopen the growth-area question. George also reported that the resource protection amendments were approved by DEP and won the Maine Association of Planners project of the year, and previewed the June 14 summit of the land use boards, where solar, historic district and board of appeals work will be prioritised and assigned. The board set a workshop for Monday July 10.

What was discussed

1. 11:37
   Call to order and minutes

   John Talbot opened the June 7, 2023 meeting with six members present. The minutes of the May 3, 2023 meeting were accepted as presented, moved by Tyler Hutchison and seconded by Juliet Caplinger.

2. 11:37
   Resource protection amendments approved by DEP

   George Thebarge reported that DEP has given written approval of the shoreland zoning amendments and map. Areas shown in red are subject to mandatory shoreland zoning and areas in green are the town's own resource protection district, replacing two shades of green that did not correspond to anything.

3. 11:37
   Maine Association of Planners award

   The resource protection mapping project was named the association's program or project of the year for 2023. George said the committee cited the level of research achieved with Durham's limited resources, the innovative use of Beginning with Habitat data, the extensive public participation process, and the cooperation between the town's boards and committees, and is treating it as a model for other small rural towns. He credited the work as a collaboration between Joe Roy, himself and John Talbot, and said Inland Fisheries and Wildlife wrote that this is the first use of the co-occurrence model in Maine.

4. 11:37
   Deer Creek subdivision request to table

   Deer Creek is the board's only continuing business and the applicant asked to be tabled once more. The developer expects Army Corps of Engineers feedback by the middle of June, and the comments in the packet were unchanged from the previous month apart from the date.

5. 17:19
   Deer Creek: who can vote and the project engineer

   Members discussed which of them had sat through the earlier substantive review and confirmed that the March meeting video is available for anyone catching up. George said he contacted the project engineer, Charlie, about the applicant's intentions and received no reply, so he contacted the developer instead; a member noted the engineer was not copied on the emails and asked whether he is still on the project.

6. 17:19
   Deer Creek tabled to July

   The board voted to table the Deer Creek substantive review until the July 5, 2023 meeting, moved by Allan Purinton and seconded by Juliet Caplinger.

7. 17:19
   Land use amendments: revisiting a growth area

   George opened his update on LD 2003 and the land use ordinance, taking up the question raised earlier of whether Durham should look again at designating a growth area. He used North Yarmouth as a working example of a town that has one and directs its land use policy toward it.

8. 22:52
   The North Yarmouth model

   George showed North Yarmouth's village master plan, with a village core and higher-density village residential around it, mixed single family, two family and multi-family over stores, and sidewalks and bicycle provision. The area is served by the Yarmouth Water District but has no public sewer, so the plan requires pre-treatment on septic systems to support the density; building permits are capped at five a year outside the growth area and unlimited inside it, and a TIF district funds the infrastructure.

9. 22:52
   Why a growth area is difficult in Durham

   George said the state rejected Durham's earlier comprehensive plan because reducing lot sizes from two acres to one and accepting streets is not a growth area. Without public water the well separation requirements are 100 feet from a septic system for a standard well and 300 feet for a shared well, and LD 2003 would still apply on top of any growth area, requiring three or four units on every lot in the high-density area.

10. 22:52
    The moratorium trigger in the comprehensive plan

    George noted the adopted comprehensive plan carries an addendum: if the town issues 45 building permits in a year, or the planning board approves 100 lots, that triggers a select board review of whether to seek a moratorium and put a growth plan to the voters.

11. 28:30
    Higher density without a growth district

    George set out a third approach: adopt a zoning map with higher-density areas at a 20,000 square foot minimum, which is the state plumbing code minimum, and set a minimum lot size per dwelling unit elsewhere so that three units on a lot would require six acres rather than two. That directs growth without the obligations that come with a designated growth district.

12. 28:30
    What the 2018 process showed

    George said something along these lines was put to the public in 2018 and did not carry: roughly a fifth favoured concentrated growth and a similar share favoured reducing everything to state minimum environmental standards, while the rest wanted two-acre lots kept and agricultural and natural resource provisions strengthened, which is what was adopted unanimously at town meeting.

13. 28:30
    Rate of housing growth

    George said the town averaged about 15 new housing starts a year when the 2018 plan was written and is now around 30, with last year about 32, still below the 45 threshold. Members noted there have been more and larger subdivisions in the last three years than at any time they can recall, with more public engagement, and that higher interest rates may slow this year.

14. 33:34
    Reporting on building permits

    A member asked for a monthly or quarterly report on housing permits so the board has figures on the record. George said the code officer already provides that report to the select board through the town manager each month and it can be requested. He added that a rate-of-growth cap has to be set by formula, typically based on the ten-year average, rather than chosen freely.

15. 33:34
    Obligations that come with a growth district

    George said state law requires a town adopting a growth district to commit in its comprehensive plan to directing 75 percent of capital improvements into that district. He explained TIF financing as the usual way growth districts fund infrastructure, and noted the objection that Freeport put a large area into TIF and none of that increment goes to the RSU.

16. 39:34
    LD 2003 timing legislation

    George reported that the Joint Select Committee on Housing has recommended an emergency omnibus bill, supported by eight members and opposed by two, giving town council communities until January 1, 2024 and town meeting communities until July 1, 2024 to implement LD 2003, as an amendment to LD 1706. MMA is urging support for a two-year delay instead. A vote was expected that day or the next, and members had been sent a message from Eli Rubin of MMA.

17. 39:34
    Baseline analysis of LD 2003

    With the final rule issued by the Department of Economic and Community Development and the Attorney General's office, George prepared an analysis of what the law actually changes in Durham as a starting point before the board decides what else it wants to change.

18. 45:00
    What Durham requires now

    The current ordinance requires 2.04 acres, about 90,000 square feet, for a single family dwelling, which may have one accessory apartment by right at no more than 50 percent of the size of the main unit, with anything larger going to the planning board as a conditional use. A two-family dwelling, defined as two units in one structure, requires an additional half acre. A duplex cannot add an accessory apartment.

19. 45:00
    What LD 2003 changes

    On a vacant lot the town must allow up to two dwelling units, and the law states these may be in one structure or two separate structures, so two standalone houses could go on a two-acre lot without the extra half acre. On a lot with one existing dwelling unit the town must allow up to two more, one within or attached to the house and one detached, or one of each, but not three standalone houses.

20. 51:12
    Accessory units versus dwelling units

    George explained the state does not count an accessory dwelling unit as a dwelling unit and treats the two in separate parts of the law, so a lot with a house and an accessory apartment would still have to be allowed a further unit. Towns must allow one accessory unit and up to three dwelling units, and it is left to each town to define which is which, which members identified as work the board will have to do.

21. 57:00
    Sequencing and the effective date

    Asked whether a lot owner who adds an attached unit could later add a detached one, George said the position on the ground at the effective date of the legislation is what governs, so units could be added in sequence. He noted two lawyers might give two different opinions.

22. 57:00
    Purpose of definitions

    George explained definitions clarify terms and set the scope of regulation, and that performance standards should be kept out of them. He pointed to the state's own definition of an accessory dwelling unit, which embeds a 190 square foot minimum and allows towns to set a maximum, as an example of the practice he would avoid.

23. 1:02:23
    Comparison of state and town definitions

    George circulated a document listing the relevant definitions from LD 2003 and its rule alongside Durham's, then a comparison of the terms that appear in both, including accessory dwelling unit, dimensional requirements, dwelling unit, lot, multi-family dwelling, principal structure, setback, single family and structure. Terms the state has and Durham does not include attached, density requirements, existing dwelling unit, building, floor area and non-conforming lot. He noted the LD 1706 amendment under review would prevent denial solely because a lot is non-conforming unless the work increases the non-conformity.

24. 1:02:23
    Three-phase plan to town meeting

    George set out the schedule: research through the summer, a public participation process from Labor Day to mid-December, and from January 1 the official process of preparing for town meeting with the public hearing.

25. 1:07:48
    How many options to take to the public

    John Talbot asked how the board wants to proceed and said the decision on lot sizes needs to be made fairly quickly because it drives George's research. Members discussed whether to carry several options through the public process as in 2018 or to narrow to those with a realistic chance of passing.

26. 1:13:45
    Lot size for the additional units

    Members said the current rules appear to be working, a single family with an accessory unit on two acres and a duplex on two and a half, and leaned toward requiring extra land only for the units LD 2003 forces the town to allow. A member argued for following the comprehensive plan instead, since the public input has already been gathered; the plan recommends reducing the duplex requirement to two acres and considering three or four units townwide subject to design controls to protect rural character.

27. 1:19:22
    Two options for July

    George said he would bring two starting options to the July meeting: Option A, the comprehensive plan recommendation of a two-acre minimum for a single family with two accessory units or a duplex with one accessory unit; and Option B, keeping the status quo except where LD 2003 requires more, with the minimum lot size added for each non-accessory unit beyond that. He said he needs clarification from the Department of Economic and Community Development on what proportional lot size increases means and whether attached and detached units can carry different lot sizes. A member said she would also like the comprehensive plan option looked at again.

28. 1:25:08
    July schedule

    Members expected Deer Creek to take at least a couple of hours on July 5 if it comes back, and agreed to tentatively schedule a separate workshop meeting so the ordinance work is not squeezed out.

29. 1:25:08
    Purpose of the land use summit

    George explained the goal of the June 14 gathering of the planning board, board of appeals, historic district commission and Conservation Commission: identify land use policy needs, set out options, agree priorities, and assign responsibility for each. He said the town's capacity is limited, with him working part-time and no other staff, so only two or three items can realistically reach town meeting, and that the resource protection work succeeded because everyone went into town meeting on the same page.

30. 1:30:35
    Goals for a solar ordinance

    George listed the goals he found common to solar ordinances: promoting alternative energy through clear adopted rules, safety, operation and maintenance, decommissioning backed by a performance guarantee at the end of a 20 to 40 year life, protecting natural and visual resources including agricultural land and habitat, and protecting neighbours from noise, glare and signal interference. He described buffer practice, noting 50 feet is standard in Maine ordinances but is little against a 20-acre field, and that some places require planted screening around the entire perimeter.

31. 1:35:39
    Historic district commission discussion

    George, the town manager and the code officer met the commission's chair, Lois Kilby-Chesley, who sent a memo to the select board on the outcome. There is agreement that the system needs simplifying and that more expertise is needed, but not on how to get there. George's (?) proposed first step is to add the ten properties listed on or eligible for the National Register to the zoning map, and to cut the review radius from 1,500 feet to those properties or those plus abutters.

32. 1:40:48
    Effects of the 1,500 foot radius

    Members recalled the Wingate subdivision, where the planning board required a 25-foot buffer along the entrance road under the historic guidelines, and the schoolhouse on Bowie Hill. George noted a provision saying a school building 100 years old or more cannot be demolished, leaving an owner with only restoration or leaving it alone, which he said goes beyond what the Department of the Interior guidelines require. He also said the list of covered properties that the ordinance requires to be on file at the town office does not appear to exist, which puts the provision's enforceability in question.

33. 1:40:48
    Board of appeals: boundary determinations

    George met Barbara Schneider of the board of appeals. Zoning district boundary line determinations are currently delegated to that board, which has used the power twice, on the Wildflower Equestrian Center and Celebration Tree Farm, and struggled with whether it had the authority. George said most towns give this to the planning board, and Barbara Schneider thought the board of appeals would support the change; planning board members agreed, saying they are the ones used to working with surveyors, engineers and wetland specialists.

34. 1:45:59
    Relief for expansions in resource protection

    A second idea floated with Barbara Schneider is to allow up to a 30 percent expansion of an existing single-family residential property in the resource protection district without going to a board, with anything larger going to the planning board as a conditional use. George tied this to the criticism heard through the public process that residents should not have to appear before a board for a simple addition.

35. 1:45:59
    What the 30 percent applies to

    Members debated whether the 30 percent should be measured against the structure or the residential use, with the example given that 30 percent of a house's square footage as a separate tiny home may be more impactful than an in-law apartment over an existing garage. Barbara Schneider's view, relayed by George, was that it should be limited to structures rather than uses.

36. 1:51:00
    Where the 30 percent figure comes from

    George said the 30 percent expansion rule comes from DEP shoreland zoning, where an expansion may not move a building closer to the water or increase the non-conformity. Members noted an expansion would still have to comply with wetland and floodplain rules regardless.

37. 1:51:00
    Reservations about who leads on solar

    A member said she had reservations about the Conservation Commission taking the lead on solar because it interacts heavily with site plan and conditional use review, which the planning board handles daily. The suggestion was that solar be handled as a set of additional performance standards laid over existing conditional use and site plan review, in the way gravel pits are, and that the planning board can attend the Conservation Commission's meetings and review George's drafts.

38. 1:56:56
    Public involvement on solar

    Members said public involvement will matter on solar because it will take up farmland, and that farmers' own views should be heard. George noted good model ordinances already exist, so the drafting is not starting from nothing.

39. 1:56:56
    Permit fees in the ordinance

    The 2020 town meeting pulled individual permit fees out of the land use ordinance so the select board sets an annual fee schedule, but the ordinance still names a fee for some permits and says nothing for others, which left the select board unsure of its authority until the town attorney confirmed it. Two fixes were discussed: reference the fee schedule everywhere a permit is required, or remove the references everywhere and state the authority once in the administration article. John Talbot proposed the second, though he said he does not think the item belongs on the priority list.

40. 2:02:09
    Level of permit fees

    Members noted the conditional use permit fee has gone from $50 to about $225 and that the new fees are still on the low end, particularly for solar. A member pointed out fees cannot simply be copied from other municipalities and must relate to the town's own cost of administering the program, which is one code officer, one planner and the board.

41. 2:02:09
    Whether to take on cell towers

    Members asked whether cell towers should be deferred another year. George said they are as complicated as solar because the Telecommunications Act limits what towns can do and without specific standards, such as a required visual impact analysis, a denial would be hard to defend. Members suggested a short set of additional standards covering decommissioning, bonding and maximum height layered onto existing conditional use and site plan review; two or three towers exist in town.

42. 2:07:48
    Meeting dates

    The next regular meeting is July 5, the day after the holiday; members checked that those who need to vote on Deer Creek can attend. A workshop was set for Monday July 10 at 6:30 after other days that week proved difficult.

43. 2:07:48
    Signage under section 5.24

    A member raised off-site signage, including directional signs, and the state statute on temporary signs in the public right of way and on private property. Members were concerned the town's ordinance may conflict with state law and First Amendment considerations, and that the code officer may be interpreting it more restrictively than the statute requires.

44. 2:18:23
    Town records and conditional use approvals

    George said going through the town's records has been like a scavenger hunt and that the record keeping is very poor. A legal opinion is that a conditional use runs with the land, so the dozens of home-based businesses approved over the past 40 years remain legal, and it is unclear what conditions were attached to older approvals. StoneX has asked about buying the gravel pit the board approved, and the records for the Leisure Campground are similarly unclear.

45. 2:18:23
    Possible ordinance changes on transfers

    George suggested the board consider adding a provision for abandonment after a year or requiring a transfer of ownership to come back to the planning board. Members said a full conditional use review on transfer would be too much and that any review should be limited to financial and technical capability, which the code officer could handle.

46. 2:18:23
    Adjournment

    The meeting adjourned, moved by Allan Purinton and seconded by Juliet Caplinger, with a closing question about whether board members should attend the June 14 summit.

What was decided

• 11:37
  Accept the minutes from the May 3, 2023 meeting as presented; moved by Tyler Hutchison, seconded by Juliet Caplinger, carried 4-0passed
• 17:19
  Table the Deer Creek subdivision substantive review until the July 5, 2023 Planning Board meeting; moved by Allan Purinton, seconded by Juliet Caplinger, carried 4-0tabled
• 1:19:22
  George Thebarge to bring two options to the July meeting: the comprehensive plan recommendation, and keeping the current standards except where LD 2003 requires more, with additional lot size for non-accessory unitspassed
• 2:07:48
  Schedule a workshop meeting for Monday July 10 at 6:30passed
• 2:18:23
  Adjourn the meeting; moved by Allan Purinton, seconded by Juliet Caplinger, carried 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 pbmeetingminutes6_07_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 May 3, 2023 meeting as presentedcarried 4-0

  Moved by Tyler Hutchison, seconded by Juliet Caplinger

• table the application until the next Planning Board meeting on July 5th, 2023carried 4-0

  Moved by Allan Purinton, seconded by Juliet Caplinger

• adjourn the meetingcarried 4-0

  Moved by Allan Purinton, seconded by Juliet Caplinger

Worth knowing

• 28:30
  New housing starts have roughly doubled since the 2018 comprehensive plan, from about 15 a year to around 30, with last year given as about 32. The comprehensive plan's trigger for a select board review of a moratorium is 45 building permits in a year or planning board approval of 100 lots.
• 39:34
  The legislature's housing committee has recommended an emergency bill, supported 8-2, that would push the LD 2003 deadline for town meeting communities like Durham to July 1, 2024, while MMA is urging a two-year delay. A vote was expected within a day of the meeting.
• 1:40:48
  The historic district provision requires the code officer to review any project within 1,500 feet of ten listed properties against Department of the Interior guidelines, a radius of about a quarter mile. George Thebarge said no official list of those properties has ever been adopted or put on file at the town office as the ordinance requires, which he said makes it questionable whether the provision is enforceable.
• 2:18:23
  George Thebarge said the town's records are in very poor shape. Because a conditional use approval runs with the land, dozens of home-based businesses approved over the past 40 years remain legal, and the conditions attached to older approvals, including the gravel pit StoneX has asked about buying and the Leisure Campground, cannot be established from the records.

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 5 decisions summarised.

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