Planning Board Meeting ~ February 5, 2025

2025-02-05 · Planning Board · 2:19:40 · watch on YouTube →

The planning board met with four members present, Marc Derr excused. It approved two amendments to the Deer Creek Crossing subdivision plan, lifting the restriction on lot sales and building permits in exchange for a $71,500 cash performance guarantee and removing the residential sprinkler requirement now that a fire pond has been built and pump-tested. The rest of the meeting was given to the four land use articles heading for the town meeting: public information sessions were held on contract zoning and on the historic preservation amendments, and the board voted to forward the resource protection amendment and the battery energy storage standards to the select board. On contract zoning the board did not reach a single recommendation on the solar size threshold, and passed on a split view. On the battery standards the board asked that the contract zoning references be struck and the noise standard replaced by a reference to the town's existing noise ordinance. A formal public hearing on all four articles is set for March 12 at 6:30.

What was discussed

1. 0:00
   Roll, minutes and planner's report

   Four members were present and Marc Derr was excused, giving a quorum. The January 8 minutes were approved; the January 15 minutes were not ready. George Thebarge reported that code officer building activity reports will now come monthly, that the January 21 community facility study event at the Eureka Center drew about 24 people alongside more than 300 survey responses, and that GPCOG will report to the select board in mid-April after town meeting.

2. 5:04
   Deer Creek Crossing subdivision amendments

   The subdivision on Hallowell Road was approved with a conditional agreement barring lot sales and building permits until infrastructure was complete, rather than a performance guarantee for the roughly $600,000 of work. The developer is about 95% complete and the town engineer has confirmed the work meets the approved plans. The board considered removing the restriction note in exchange for a $71,500 cash performance guarantee, Gorrill Palmer's estimate for the remaining paving, a utility pole relocation and patching, and removing a note requiring residential sprinklers that had been left on the plan in error when a full-capacity fire pond was built instead.

3. 10:09
   Process for the four land use articles

   John Talbot explained the sequence for resource protection, battery energy storage systems, contract zoning and the historic district commission redesignation. Comments go to the select board, which sets the warrant wording and sends the articles back for a formal public hearing. Because the regular March meeting falls outside the required window of no earlier than 30 and no later than 7 days before town meeting, a special public hearing was tentatively set for March 12.

4. 15:18
   Contract zoning explained

   George Thebarge read the summary: the town attorney determined that large grid-connected battery energy storage systems would meet the definition of essential services and so be a permitted use not subject to conditional use review, and recommended requiring contract zoning for large battery and solar systems instead. Such facilities would be allowed only as a special contract zoning district approved at town meeting. The triggers are one megawatt for battery systems and a solar threshold still under discussion.

5. 20:36
   How the contract zoning process would work

   John Talbot described the sequence: the applicant negotiates with the town manager and staff, the terms go to a joint committee of the select board and planning board with a public hearing, the planning board gives an advisory opinion on comprehensive plan consistency, the select board makes a recommendation, and the final decision is a vote at town meeting. He said this lets the town negotiate siting and additional requirements it cannot impose under current ordinances, and noted there is no appeal from a town meeting vote.

6. 20:36
   Public comment: Jess Costa

   Jess Costa of Brianna Drive (?) said tying solar to battery storage under contract zoning wrongly links solar to battery safety concerns, and asked why storage facilities and gravel pits are not treated the same way. She proposed a mitigation fee structure for all development types based on mapped and ranked habitat value, as Topsham does, and noted the Conservation Commission has started a solar suitability mapping process. She disclosed that she works in solar, had originally suggested 10 acres, and now agrees 20 acres is better.

7. 25:43
   Public comment: Michael (?) of Runaround Pond Road

   He said he sees the benefits of contract zoning but that it puts an obstacle in front of solar that is not applied to anything else, and that solar carries no fire risk and is reversible after 25 years unlike gravel pits. He cited a several-hundred-acre installation in Farmington estimated to produce $17 million in state and local tax benefits over its lifetime, and argued for a 20-acre threshold because anything smaller is usually community solar.

8. 31:26
   Public comment: Russ (?)

   He said the town has not communicated well what contract zoning is, why it is wanted, and why it is preferred over conditional use, and that the video of the town attorney is barely audible because her microphone was not moved closer. He said that on the basis of the information provided so far he would vote against it.

9. 31:26
   Board questions on contract zoning

   Members noted a question about a town council form of government is outside this discussion. George Thebarge said a scan found no nearby towns using contract zoning specifically for solar; most instead put a size cap on solar with nothing allowed above it. It was confirmed there is no appeal from a town meeting vote beyond going to court, and executive session in the negotiation phase is for confidential discussion only, with any decisions announced afterwards.

10. 41:59
    Solar size threshold: acres versus panel area

    The board clarified that acreage figures refer to the whole project area including fencing and access, while the ordinance measures panel surface area because it is unambiguous. The current draft is 175,000 square feet of panels, which translates to just under a 10-acre project; 400,000 square feet would correspond to a 20-acre project. Members noted roughly five to six acres per megawatt, using the 1.5 megawatt project at the Brunswick naval air base as a reference.

11. 47:14
    Board split on the solar threshold

    John Talbot and others argued for keeping the smaller threshold so the town has a mechanism to say a 600-acre project is too big for Durham. Juliet Caplinger argued for 20 acres, citing the state's 4.99 megawatt community solar target and a webinar George Thebarge had circulated that used 20 acres as the point below which projects are usually community solar. No recommendation was made; the board agreed to report that three or four lean smaller and one prefers 20, and left the number to the select board. There was no disagreement on the one megawatt battery threshold.

12. 58:57
    Contract zoning for other uses

    George Thebarge clarified that if adopted, contract zoning would be mandatory only for battery systems of one megawatt hour or more and solar above the chosen threshold. Other large uses such as gravel pits remain conditional uses but could voluntarily apply for a contract zone. Members said applying it to gravel pits and other uses is a future discussion.

13. 1:04:32
    Historic preservation amendments explained

    George Thebarge read the summary: the town attorney found the current historic preservation standards inconsistent with federal and state guidelines and not enforceable. The amendments would focus requirements on individual properties listed or eligible for the National Register, require review by the historic commission, and assign permitting authority to the code officer and planning board. Of the 32 buildings in the Southwest Bend historic district only three are listed or eligible, so the district itself would be repealed, along with the 1,500-foot radius provision, and the commission's certificate of appropriateness power would become advisory.

14. 1:04:32
    Public comment: Heather Roy on buffering

    Heather Roy of Hallowell Road, speaking as a resident, said the draft has no direct language on buffering and screening and that relying on the general land use ordinance is not working. She cited multi-unit buildings put up on Route 136 next to a historic church with no buffer at all. She also asked that training be required for existing historic district commission members who carry over to the new commission.

15. 1:09:45
    Disagreements between the commission and permitting authorities

    Heather Roy (?) asked what happens when the historic commission's recommendation conflicts with the code officer or planning board. George Thebarge said the advisory opinion is mandatory for the eight listed or eligible properties, the planning board must consider it but makes its own quasi-judicial decision, and an aggrieved party can appeal that decision to the board of appeals.

16. 1:15:22
    Buffers next to historic properties

    Allan Purinton (?) recalled the board struggling over a buffer between a subdivision entrance and an adjoining historic house, and recommended a specific buffer requirement where a historic site adjoins. George Thebarge said the amendments would let the planning board require buffering as a condition of subdivision or site plan approval, but that the code officer has no such authority over a standalone house or duplex. Joe Roy of Pinkham Brook Road (?) said the historic district commission has submitted no comments and will meet with the select board and the attorney on February 25.

17. 1:26:53
    District-style language in the draft

    Brian Lanoie said that if the district is being repealed, the visual compatibility language in section C2 still reads like a district ordinance and needs rewriting. George Thebarge replied that these are National Park Service and Department of the Interior standards that courts support, and that they apply only to the individual historic property and any additional buildings on it, not to neighbouring lots.

18. 1:37:46
    Stone walls, maintenance and wording

    Members noted that under the draft, a subdivision altering a stone wall over 100 years old would have to go to the historic commission, which would have 45 days to respond, on top of the existing state review. Allan Purinton asked that the word maintenance be removed or clarified in section 5.14 C1 so that only work requiring a permit triggers historic review, and objected to the phrase 'poor or cheap imitations' in the visual compatibility standards.

19. 1:43:13
    Resource protection amendment

    The board took up the resource protection amendment, developed with the Conservation Commission and already through a public information meeting, with no changes since. It moved to forward it to the select board with a positive recommendation for inclusion in the warrant.

20. 1:43:13
    Battery energy storage standards

    George Thebarge reported the one change since the last meeting: the town attorney clarified that a contract zoning agreement could only require more of an applicant, not less, and added language that tier three minimum requirements shall not be reduced or made less restrictive by a contract zoning agreement. John Talbot objected that this removes a negotiating tool, and also warned that the battery standards now reference contract zoning, which creates a problem if the contract zoning article fails at town meeting.

21. 2:00:11
    Resolution on the battery standards language

    The board agreed to send the prior draft, striking the contract zoning references and the tier three paragraph, and to let the select board and the town attorney decide whether that restriction belongs in the contract zoning article instead. George Thebarge and the attorney will be at the select board's February 25 meeting.

22. 2:05:45
    Late public comments on lighting and ground cover

    A written comment received that day asked for limits on the spectrum of lighting to reduce attraction of insects such as brown-tail moth and disruption of wildlife. The board deferred this to a townwide lighting standards discussion during codification, noting the current draft already limits lighting to what is necessary for security. A second comment noted an inconsistency in the planting provisions between prohibited invasive ground covers and the ivy allowed elsewhere in the draft.

23. 2:11:21
    Noise standard and vote on battery standards

    Members said the noise provision duplicates section 5.19 of the existing ordinance, which already sets 55 decibels by day and 45 at night, and that the draft should simply require compliance with 5.19 rather than restate it. The motion to recommend the battery standards to the select board incorporated that change together with striking the contract zoning references.

24. 2:11:21
    Schedule for the ordinance articles

    The select board will make the final ordinance language decisions, moving its March 11 meeting to March 4 to fit the town report printing turnaround. The language must be written and ready for public review by February 26, when the advertisement for the hearing runs, meaning drafting has to be finished at the February 25 select board meeting with the attorney present. The formal public hearing is March 12.

25. 2:17:04
    Hearing location and publicity

    The board decided to hold the March 12 hearing at 6:30 in the current room rather than the Eureka Center, because the technology there is weaker and more chairs fit here. George Thebarge said all draft amendments and background will go on the town website behind a proposed ordinance amendments banner once the select board approves the language. Heather Roy (?) said she was shocked at how few people attended and suggested using the town text blast, which reaches about 900 numbers, to publicise the hearing.

What was decided

• 0:00
  Accept the minutes of January 8 as presented; approved unanimouslypassed
• 5:04
  Approve amendments to the Deer Creek Crossing subdivision plan: remove Note 21 so the restriction on lot sales and issuance of building permits is lifted, contingent on receipt of a $71,500 cash deposit as a performance guarantee, and remove Note 7 requiring residential sprinkler systems, based on the capacity of the constructed fire pond. Approved 4-0passed
• 1:43:13
  Forward the draft resource protection amendment to the select board with a positive recommendation that it be included in the town meeting warrant. Approved 4-0passed
• 2:11:21
  Recommend the battery energy storage standards to the select board, with the noise provision changed to require compliance with section 5.19 of the existing ordinance and with the contract zoning references and the tier three minimum-requirements paragraph struck, reverting to the prior draft. The chair called the vote and declared it done; no count was announcedpassed

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

• 5:04
  Deer Creek Crossing on Hallowell Road can begin selling lots and drawing building permits once the developer posts a $71,500 cash performance guarantee. The sprinkler requirement was removed because a full-capacity fire pond was built instead, and the fire chief has pump-tested it.
• 47:14
  The board did not agree on the solar size threshold for contract zoning. The published draft is 175,000 square feet of panels, roughly a 10-acre project area; Juliet Caplinger and both public speakers argued for 20 acres, or 400,000 square feet. The board passed on a split view and left the number to the select board.
• 1:04:32
  The Southwest Bend historic district would be repealed. Of its 32 buildings only three are listed or eligible for the National Register, under 10%, and the town attorney considers the district indefensible.
• 2:11:21
  The ordinance language must be finalised at the select board's February 25 meeting so it can be published for public review on February 26. The select board's decision meeting moves to March 4, and the formal public hearing on all four articles is March 12 at 6:30 at the fire station.

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 4 decisions summarised.

Elsewhere

← 2025-01-15 Planning Board2025-03-05 Planning Board →All meetings