Conservation Commission Meeting ~ December 6, 2022

2022-12-06 · Conservation Commission · 1:48:17 · watch on YouTube →

The Conservation Commission held a public information meeting on proposed changes to Durham's Resource Protection District, at the planning board's request and ahead of votes expected at the April 2023 town meeting. Joseph Roy set out the commission's advisory role, and George walked through the mapping: the current district closely tracks 2002 floodplain data that newer FEMA and LiDAR mapping has superseded, and six criteria drawn from the voter-approved 2018 comprehensive plan would define the district instead. Most of the evening was residents pressing on why the change is being split into two warrant questions, one removing land that meets none of the criteria and one adding land that does, after voters turned down the removal question on its own last April. Kevin, for the select board, defended the split on the ground that owners whose land is wrongly mapped should not have their remedy tied to a vote on adding land elsewhere; several residents argued the criteria should be applied to everyone in a single question. Landowners also asked what resource protection would mean for taxes, farming, forestry and building. No vote was taken; by the end Kevin was working through a contingency structure that would put an all-in question first and fall back to separate questions only if it failed.

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. 0:09
   Opening and the commission's role

   Joseph Roy opened and members present introduced themselves, among them Samantha Michaelson and Alberta (?); Jessica had the sign-in sheet. He said the commission is entirely volunteer, has an opening it would like to fill, and has no regulatory authority: it advises the select board and planning board.

2. 0:09
   Why the meeting was called, and the 2018 comprehensive plan

   The planning board asked the commission to help run public discussion of the resource protection changes. Roy (?) described the 2018 comprehensive plan as voter-approved and aimed at keeping Durham rural; its survey found 90 percent support for farming, 75 percent for forestry, and 75 percent for expanding the Resource Protection District.

3. 5:52
   How the current Resource Protection District was drawn

   George (?) said the current district is close to a mirror image of the floodplain mapping in the 2002 comprehensive plan, produced by the regional council of governments. The town had already updated its aquifer protection districts in 2011 when the state issued new sand and gravel aquifer maps.

4. 5:52
   New FEMA and LiDAR mapping

   FEMA's current floodplain mapping covers considerably less land in Durham than the 2002 mapping did. George (?) said LiDAR is detailed enough to pick out gravel pits.

5. 11:36
   The two phases and the criteria behind them

   Phase one would remove land held in resource protection only because of the outdated floodplain mapping, keeping anything that meets another criterion. Phase two would add land meeting the comprehensive plan's criteria: state shoreland zoning areas, land within 100 feet of major streams, wetlands of 10 or more acres, buffers around inland wading bird and waterfowl habitat, and Beginning with Habitat areas scoring six or more co-occurring resources.

6. 11:36
   Last April's rejected question and the select board's position

   George (?) said the voters did not approve phase one at the April town meeting, and that the two-phase approach was criticised there. The select board's position is that removal and addition are separate issues, so two separate questions are planned for the April 2023 warrant, with Kevin present to confirm or correct that account.

7. 16:44
   Example parcels and an offer of per-property maps

   George showed worked examples, including one off Bowie Hill Road where phase one removes more than phase two adds, a net reduction he put at four or five acres. About 440 notices went out; he offered to prepare the same layer-by-layer analysis for any landowner who signs up, saying each takes half an hour to an hour.

8. 16:44
   What this meeting is, and the first challenge to two questions

   Asked how this differed from the meeting held before last spring's town meeting, the commission said this is an informational session it is hosting for the planning board, with a separate planning board meeting to follow on the actual warrant language. A resident said she had understood phase one went alone only because there had not been time to prepare phase two, and asked whether phase two rests on scientific data too.

9. 21:56
   The six criteria and where they come from

   Joe (?) went through each criterion: the 100-year floodplain from the new LiDAR-based mapping, state shoreland zoning, a 100-foot buffer on major perennial streams, forested and emergent wetlands, a 250-foot buffer on inland wading bird and waterfowl habitat, and Beginning with Habitat co-occurrence of six or more. He said the state requires a 75-foot buffer, Inland Fisheries and Wildlife recommends extending it to 100 feet and in some cases 300, and that about 86 percent of Maine wildlife species use those corridors. The commission repeated that it does not write or change warrant language.

10. 27:35
    Kevin's case for keeping the questions separate

    Kevin (?) said the first question is objective (land is under restrictions because the map does not match conditions on the ground) while the second is a subjective policy choice about which criteria to use and at what threshold. If both were one question and it failed, owners whose land is misidentified would keep the restrictions.

11. 27:35
    "Bad data" or changed town values

    A commission member disagreed with Kevin's framing, saying the 2002 layer was not a mislabelling but a record of what the town then thought worth protecting, and the new criteria reflect what the town decided in 2018. It was noted that of the six criteria only shoreland zoning is required by the state; the rest come from the comprehensive plan.

12. 33:14
    What state law actually requires

    George (?) said the planning board's first step was to hire Mike Morse, formerly the DEP shoreland zoning coordinator for the region, to establish what must be resource protection under state law. The answer was the Androscoggin River frontage where there is floodplain or steep slope, about half the frontage of Runaround Pond, and a few emergent wetland and farm field margins. Everything else is a local decision.

13. 33:14
    What a 100-year floodplain means

    Asked to define it, Joe (?) described the area a river or stream would reach over a hundred years of fluctuation once water leaves its channel, and said the mapping can change if a dam or other management is added. It was confirmed that outside the Androscoggin, being in the 100-year floodplain does not by itself require resource protection zoning, though it can drive a lender's flood insurance requirement.

14. 38:46
    Taxes, development potential, and what resource protection restricts

    A landowner said his property had gone almost entirely green on the new map and asked whether he would go on paying taxes on land he could not build on, comparing it to eminent domain. The commission said valuation is handled case by case by the town assessor and the code enforcement officer, and that resource protection chiefly bars buildings, subdivisions and energy development such as solar or wind. It also explained that land shown as coming out of the district for floodplain reasons can still appear green because it meets another criterion.

15. 38:46
    Why the Beginning with Habitat threshold is six

    Heather (?) asked which criteria the 2018 plan listed and noted the maps drawn last time used a level of four. The answer was that the comprehensive plan recommends six or more co-occurring resources for resource protection, and separately recommends four or more for critical rural areas, which is not part of this proposal.

16. 44:39
    What question one would actually remove

    Kevin (?) clarified that question one would remove any property currently in resource protection that meets none of the six criteria, not simply property outside the updated 100-year floodplain, and that nothing removed in question one would be added back in question two. A resident objected that this applies the new criteria to one group of landowners now and to everyone else only if question two passes.

17. 49:41
    "Outdated" rather than "bad" data, and who got a postcard

    A resident asked that the existing mapping be described as outdated rather than bad or inaccurate, and the commission agreed the words were confusing. Postcards went only to owners of land currently in resource protection or that could be added, including where the district touches a back corner.

18. 49:41
    A resident's argument for a floodplain-only question one

    A resident said she supports two questions so that owners wrongly in the district get a remedy, but that question one should be based on the floodplain alone. Her concern was that if question one passes and question two fails, the six criteria would apply to that group of properties and to no one else.

19. 54:51
    More than two questions, and the plan's legal weight

    Kevin (?) raised the possibility of splitting further, asking each criterion as its own question, so voters could accept parts rather than all or nothing. It was also stated that a comprehensive plan is a starting point without the force of an ordinance, while state statute requires ordinance changes to be consistent with the plan.

20. 1:00:08
    Equity, existing conservation arrangements, and allowed uses

    A resident raised her neighbour Dan Fisher's land, already covered by tree growth and farmland tax programs and by wetland rules, and questioned laying blanket resource protection on top of a wetland study requirement. The answer was that applying the criteria uniformly is what makes the process equitable, and that mowing, cutting firewood, planting crops and grazing all continue in resource protection while buildings, solar and wind installations, parking lots and stores do not. Restrictions apply only to the mapped part of a parcel, not the whole property.

21. 1:05:36
    How the added areas were drawn, and a map that omits phase one

    Asked repeatedly how the boundaries of the proposed additions were set, George (?) said they come from state inventory maps overlaid on town property maps, and that the data is public and available from Maine Inland Fisheries and Wildlife. He noted the map showing phase two additions does not show phase one removals, so it depicts the outcome only if phase one failed and phase two passed.

22. 1:05:36
    Whether the commission is overstepping

    A resident said the commission has credibility precisely because it did not propose adding land first and removing later, and asked the room to consider who benefits from the two-question structure. The commission answered that it is not asking anyone to vote either way and is present to explain the data layers and their implications.

23. 1:10:41
    Timeline and the required planning board hearing

    Juliet (?) asked about the schedule. Kevin (?) said an ordinance change needs a public hearing hosted by the planning board, at least seven days and not more than thirty days before the town meeting, which puts it in March, and that warrant wording could still be adjusted after that hearing but not substantially.

24. 1:10:41
    Kevin on why last April's question failed

    Kevin (?) said he does not read the April result as the town declaring it wants a single question. He attributed part of the failure to a procedural objection Joe (?) raised at the time (the public hearing had been hosted by the select board when law required the planning board) and to confusion in the room.

25. 1:16:03
    Whether the two-question structure is itself equitable

    A resident said the board was contradicting itself in saying the criteria should apply equally while proposing to apply them first only to removals. Another pointed to small parcels newly inside the updated floodplain that are not in the district now; the answer was that those fall under question two, since question one only addresses land already shown as resource protection.

26. 1:21:18
    Notice to abutters, and a landowner affected both ways

    A resident recalled objections at the town meeting that abutters had not been notified. George (?) said he looked into it and found no legal requirement to notify by letter; the notices were sent as a courtesy. A landowner whose property both gains and loses resource protection said the new maps match her land, said she wanted both questions to pass, and asked what happens if question one passes and question two fails.

27. 1:26:44
    Private property rights, and the list of permitted uses

    The person who chaired the comprehensive plan committee said the plan had three elements (rural character, farming and forestry, and balancing private property rights against public rights) and that only the first two had been discussed. Joe (?) then read through the land use ordinance list: farming, forest management, hunting, fishing, hiking and motor vehicle use on existing trails and roads are allowed, a private road to reach a back lot needs a permit, and gravel extraction, new homes and additions in the protected area are not allowed.

28. 1:26:44
    Non-conforming lots, open space credit and ponds

    Creating a new lot in resource protection to build on is not permitted, but existing non-conforming properties can be expanded within limits through a permit process. Resource protection land can count toward a subdivision's open space requirement, and building a pond is a Maine DEP permitting question rather than a town one.

29. 1:32:28
    State data is not survey grade

    None of the state GIS data is accurate enough to make development decisions on an individual property; a wetland delineation by surveyors, engineers and wetland scientists is still required. Being outside the town's resource protection zone removes the town's restriction but not state or federal permitting obligations.

30. 1:32:28
    Writing the criteria into the ordinance

    A resident asked whether the ordinance could be written so the criteria apply automatically in future. The answer was that the criteria will go into the ordinance, which does not contain them now, but that mapping them onto specific parcels is a separate step and a policy decision for the legislative body.

31. 1:38:12
    Consistency with the comprehensive plan is settled in court

    Asked whether any state body reviews whether an ordinance is consistent with the comprehensive plan, George (?) said that process was abandoned at the state planning office and consistency is now decided by the courts, citing a Scarborough case that went to the state's high court. He said keeping the warrant language close to the comprehensive plan is the way to avoid litigation.

32. 1:38:12
    Tree growth and tax programs for undeveloped land

    A landowner asked whether resource protection would stop forest management on land in tree growth; the answer was that tree growth requires managing for a commercial forestry product with a plan reviewed every ten years, and resource protection status does not affect that. Heather pointed out there are programs offering tax benefits to owners who do not intend to develop, and the commission named the Open Space Program alongside tree growth.

33. 1:38:12
    A contingency vote is proposed

    A resident proposed asking the all-in question first (approve the map with both the additions and the subtractions) and only going to the separate questions if it fails.

34. 1:43:29
    The contingency structure worked through

    Kevin (?) said contingency questions are possible: if the all-in question passes, the later ones become moot and are skipped. It was clarified that "all in" means the map applying the six criteria evenly across town, phase one and phase two together. Joe (?) said that if it went to individual questions the commission would want another meeting like this one to explain each criterion and show its map.

What was decided

• 1:43:29
  Kevin (?) outlined a contingency structure for the April 2023 warrant: a single all-in question adopting the map that applies all six criteria, with the separate removal and addition questions reached only if the all-in question fails. Wording was still to be worked out with George and the select board.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

• 16:44
  About 440 notices were mailed to affected and abutting landowners, and George (?) offered to produce a layer-by-layer map of any individual property on request, at roughly half an hour to an hour each.
• 33:14
  Only the Androscoggin River frontage where there is floodplain or steep slope, about half the frontage of Runaround Pond, and a few wetland and farm field margins are required by state law to be resource protection. The rest of the district is a local decision.
• 44:39
  Question one would remove land that meets none of the six criteria, not simply land outside the updated 100-year floodplain. This was the main disagreement of the evening: several residents said it applies the new criteria to one group of owners while everyone else is covered only if question two also passes.
• 1:10:41
  An ordinance change requires a public hearing hosted by the planning board, at least seven days and not more than thirty days before the April town meeting, putting it in March. Warrant wording can still be adjusted before then.

Elsewhere

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