Planning Board Meeting ~ September 7, 2022

2022-09-07 · Planning Board · 1:35:40 · watch on YouTube →

Planning board meeting of September 7, 2022, with Tyler Hutchison seated as a voting member for the evening. The Celebration Tree Farm conditional use application was continued to October 5, with a site walk set for 5 p.m. that day. The main business was the preliminary subdivision plan, on which the board had to decide that night because the 60 days from the July 13 completeness finding expired; it dropped the requirement for town peer review of the Patriot Way intersection offset in favour of having MaineDOT address it in its permit, waived the setting of two corner pins until after final approval, settled that the applicant will build a 120,000 gallon fire pond instead of sprinklers in the houses, and approved the preliminary plan 5-0 subject to the amended conditions. The rest of the evening went to ordinance amendments for the April town meeting: George Thebarge presented three options for complying with the new state law requiring towns to allow up to three units where units are allowed, and the board agreed to take all three to a public workshop on October 12. It also agreed not to bring backlot road changes forward this year, given the uncertainty over what the new law means, while still moving the private way provisions into their own article with language confirming that the town accepts a road for public maintenance only by town meeting vote.

What was discussed

1. 0:06
   Seating a voting member and quorum

   The board first voted to seat Tyler Hutchison as a voting member for the evening. Five members were present against a quorum of three.

2. 0:06
   Celebration Tree Farm continued to October

   The applicants asked to be heard at the October meeting instead. The board voted to continue the item to October 5, with one member abstaining because he would not be there, and separately confirmed a site walk at 5 p.m. that day followed by the regular meeting and, if the paperwork is ready, a public hearing at 6:30. Five was chosen because it gets dark just after six.

3. 0:06
   Minutes of August 3

   The minutes of the August 3, 2022 meeting were accepted as presented, 5-0.

4. 0:06
   Town meeting result and public comment

   George Thebarge had nothing beyond the agenda. The chair noted all four articles passed at town meeting, with perhaps one or two negative votes on one or two items. No residents or non-residents offered comment on non-agenda matters.

5. 5:29
   Where the subdivision application stands

   George Thebarge catalogued the board's actions: completeness determined July 13, which gives 60 days and made this the last night for a decision; a public hearing and the start of substantive review on the same date; written comments since then from the town engineer and the school superintendent; and draft conditions of approval worked through on August 3. The certified survey the applicant had promised arrived on the day the packet was posted and was circulated and put on the website as a supplement.

6. 5:29
   The procedural choices

   George Thebarge set out that the board could move to grant preliminary approval with the stated conditions; if that failed it could revisit the conditions, and if a majority still found any standard unmet it would have to move to deny, because a decision had to be made that night unless the applicant agreed to extend.

7. 5:29
   What the survey found

   The surveyor's letter addressed the points raised by the board and by the public. Fragments of fencing that sit off the measured boundary account for 1,145 square feet, which the surveyor said would probably involve transfers on both sides if it ever became a dispute. The Timber Oaks corner discrepancy was calculated at one foot from what the Timber Oaks plan shows and is not considered to affect the project, and an undefined CMP easement serving the abutting lot is now shown on the plan.

8. 5:29
   What the board can and cannot decide about boundaries

   George Thebarge said the board is not a court with jurisdiction to adjudicate boundary disputes, but it does have to decide whether the registered survey submission requirement is met, whether right, title and interest in the land is sufficiently demonstrated, and whether the 50 percent open space requirement is still met despite the 1,145 square foot discrepancy.

9. 11:02
   The Patriot Way offset and condition 1b

   George Thebarge asked the board to confirm his reading that it would be satisfied if the applicant had the MaineDOT engineer specifically address the offset of Patriot Way against the new intersection, without the town's peer review engineer weighing in. On that basis condition 1b could be dropped and condition 9 revised so the applicant must ask MaineDOT to address the offset, which the board would check at the final plan stage when the DOT permit comes back.

10. 11:02
    Vote to drop condition 1b

    The motion to eliminate condition 1b was made and seconded and carried. A member confirmed that if DOT declines to sign off it will not issue the permit and the plans will have to be modified to whatever DOT (?) says is correct.

11. 11:02
    Whether corner pins can be waived at all

    A member questioned whether the corner monuments are on the list of items the board may waive at the preliminary plan stage. The survey itself is not waivable, though the topography and contours are, and George Thebarge said the board has the authority to waive the timing of the corner pins rather than the requirement itself.

12. 16:32
    Which pins are missing and why

    Only two pins are missing, the back corners marking the dividing points along the property now owned by an adjoining owner who is part of the project. Everything else was already pinned, so the surveyor was confirming the boundary rather than setting it, and because the parcels were in the same ownership those two were never set. One of them sits in the middle of ground where a foundation had been backfilled.

13. 16:32
    Argument over the waiver

    Juliet Caplinger was uneasy about the precedent, noting the ordinance calls for monuments at the preliminary stage and that pins on the ground would have helped resolve the Timber Oaks question on a site walk. Others said the line is internal and undisputed, that the applicant will not dispute it, and that a surveyor has to go out and set all the pins after final approval before construction can start anyway. Another member said he would have been less comfortable if those two lines had been more relevant to the actual building lots.

14. 22:01
    Waiver granted

    The board voted to waive the setting of the two pins until after final plan approval, when the other pins are set.

15. 22:01
    Condition 9 wording confirmed

    The board confirmed the wording that the applicant shall ask MaineDOT to address the safety of the intersection offset from Patriot Way, a member noting it matters because of the concerns raised about another subdivision.

16. 22:01
    Fire pond replaces sprinklers

    The applicant had originally proposed no on-site water, relying on sprinklers in individual homes as earlier subdivisions have. George Thebarge said the ordinance calls for a water source of 36,000 gallons in cisterns, or a fire pond of at least 120,000 gallons, the larger figure partly because of drought. The applicant first offered a 36,000 gallon pond in exchange for dropping the sprinklers and has now agreed to a 120,000 gallon pond as the only fire protection measure, striking the sprinkler note from sheet C101 at final.

17. 22:01
    Whether a pond will hold water in a drought

    A member asked whether the town has the resource to maintain 120,000 gallons in a year like this one. George Thebarge said the fire chief had raised the same concern and that the answer is to site the pond where the groundwater supply is adequate, analysed by a hydrologist as part of peer review, with the wetland areas on site indicating high water table. The fire chief has also supplied design standards covering intake height above the bottom so sediment does not clog it, freeboard for ice, and piping that will connect to fire department equipment.

18. 27:04
    Peer review scope and what preliminary approval fixes

    The conditions already refer the engineering designs for road construction, utilities, stormwater management, erosion and sedimentation controls and the proposed fire pond to peer review. George Thebarge confirmed that preliminary approval does not lock everything in and the board can still make changes at final approval, including a reduced pond capacity combined with sprinklers if the fire chief thinks that is a better solution.

19. 27:04
    Pond location still open

    The pond was roughed in at the end of the hammerhead at the smaller size and has not been redrawn at 120,000 gallons. Engineering review will confirm whether that is the right place, given concerns about resource protection and an existing level spreader and buffer nearby. A member noted the fire chief's concern was partly driven by another subdivision in town with a dry hydrant on a dry pond.

20. 27:04
    Right of way to the west and the CMP corridor

    A condition already requires a right of way to be extended from the turnaround, running straight out the end. Whoever eventually extends it, the town or another developer, will have to go through the permitting process for the wet drainage crossing, so no further condition was needed. The undefined CMP right of way, roughly 50 feet, serving poles and a meter, is now noted on the plan.

21. 27:04
    Solid waste collection raised

    Allan Purinton said that a subdivision of six or twelve houses on a main thoroughfare needs a pull-off and a collection area, rather than every household bringing recyclables and waste to the curb on a busy road.

22. 32:41
    Who pays for private collection

    The board had used homeowners association stipulations requiring a private hauler on Bowie Hill. Allan Purinton objected that these will be taxpayers who already have solid waste pickup in their tax bill, and that charging them again for a private contractor is not fair, and would presumably justify an abatement. Others noted that an association already carries upfront costs such as winter plowing on a private road, so residents are on notice.

23. 32:41
    How other subdivisions manage

    A member who lives on Day Road (?) described Truman Day Estates, a twelve-house subdivision with six built, where the town's contractor Casella parks in the middle of the dead end and backs into the subdivision road. The board discussed a pull-off between two driveways, which would need a stable base for plowing and a paved apron, and sizing for perhaps two large containers per household, so roughly 24.

24. 32:41
    Settled through the covenants

    The board concluded it cannot bind the town to pick up or not pick up anywhere, so the answer is a covenant that property owners will not place waste receptacles on the road, as was done on Bowie Hill, leaving enforcement to the association. Members also noted the school bus and queueing implications of thirteen cars at the end of the road.

25. 37:46
    Open space margin and lots 6 and 7

    The open space calculation has about 1,100 square feet to spare and will be checked again at final plan when lot lines are tweaked. A large wetland sits between the buildable areas of lots 6 and 7; condition 20 requires detailed grading plans for those building sites, which become part of the final subdivision approval and can be amended by coming back to the board. All lots were confirmed to meet the net residential acreage calculation under the clustering standards.

26. 37:46
    Preliminary approval granted

    The board moved to accept preliminary approval subject to the draft conditions as amended that night, and it carried 5-0.

27. 37:46
    Ordinance amendments for the next town meeting

    At the June 8 workshop the board decided to limit its land use amendments to affordable housing and parts of the road ordinance. A new state law requires every town to allow up to three dwelling units on lots where units are allowed and two units on vacant lots, in place by next July. Running alongside are the conservation commission's review of the resource protection zoning map and the historic district commission's look at historic preservation, and all three groups want public outreach this autumn ahead of drafting and public hearings in late winter.

28. 43:23
    No guidance from the state or MMA

    The Maine Municipal Association had said guidance for towns would come by the summer and it has not, and George Thebarge is not expecting it soon; everyone is still trying to work out what the law means. The July deadline does not move, and because Durham is locked into an April town meeting it cannot wait as council-form towns can.

29. 43:23
    Option one: follow the comprehensive plan

    The first option implements the comprehensive plan recommendations adopted unanimously at the 2019 town meeting: consider allowing three and four unit multi-family in the rural residential district alongside duplexes with design standards to keep them compatible with typical Durham housing, explore tiny homes as accessory dwelling units or starter homes, which state law now requires and for which the town attorney has already directed the code officer to issue permits at up to 400 square feet, and allow duplexes on a standard two-acre lot unless there is an objective basis for a larger lot such as on-site wastewater disposal or aquifer protection.

30. 43:23
    Option two: minimum compliance

    The second option simply lifts the language of the legislation into the ordinance: up to three dwelling units on properties that currently have one or two, in any combination of accessory or full units, a maximum of two on vacant properties, and no change to the existing minimum lot sizes of two acres for a single family and 2.5 acres for a duplex or the three units. It follows the comprehensive plan only partly and gives different landowners different treatment depending on whether their lot is built on.

31. 43:23
    Option three: maximum restriction

    The third option uses the provision allowing increased lot sizes for additional units so long as the increase is no greater than what is required for the single family, so the town could require two acres per unit: four acres for a duplex and six for three units. George Thebarge, who checked his reading with another planner, said some would see that as offsetting the increases the law forces on the town.

32. 49:24
    Board's reaction to the options

    Members observed that option one is the comprehensive plan, option two moves partly in that direction and option three goes the opposite way. A member said she preferred option one because the second and third units would be accessory, limited to 50 percent of the main unit, so there would be little change of character: a house could have an apartment attached and one over the garage, and a duplex could add an accessory apartment but not a standalone dwelling.

33. 49:24
    Compliance risk of option one

    George Thebarge said the one point someone could take issue with is that the law permits any combination while option one does not, but that between the number of units allowed and consistency with the adopted comprehensive plan the town would have a reasonable case. A member asked what the rational basis is for requiring 2.5 acres for a duplex rather than two, and nobody knew.

34. 54:48
    Naming the options and leaving room for a fourth

    The board disliked the label minimum compliance for option two and looked for a better name, and agreed the workshop should be able to produce a fourth option, for instance adding increased lot sizes to option one or two, or someone asking for ten acres per unit. A member said visuals showing what each option would look like on the ground will be important at the workshop.

35. 54:48
    Risk of copying the statute verbatim

    A member asked whether lifting the statute into the ordinance leaves it open to reinterpretation later. George Thebarge said that if guidelines are eventually promulgated the town can apply them as it does with DEP guidance on shoreland zoning, though it is always better for the ordinance to spell things out than to send people to check with a state agency. The board agreed to use the three options as the basis for the October discussion.

36. 54:48
    Timing around the election

    George Thebarge said there are two windows: early to mid October, or the first or second week of November after the gubernatorial election, since the office cannot be bothered in the two or three weeks before it, and the board wants it done before Thanksgiving. Two of the three groups, conservation and historic, need theirs before the election.

37. 1:00:27
    Using the election for outreach and a survey

    A member suggested displays and handouts at the polls as was done for the comprehensive plan. George Thebarge said GPCOG has not responded about running a SurveyMonkey, but Devin can put one on the town website; it needs approval for about $25 a month to exceed the free tier, which he will raise with Jerry.

38. 1:00:27
    Workshop set for October 12

    The board settled on a public workshop at 6 p.m. on Wednesday, October 12, avoiding the nights the other boards meet. Devin can stream and record at the fire station, whose meeting room holds around 34 people, whereas the Eureka Center has no internet, so the board chose the fire station subject to George Thebarge confirming availability. Six was chosen so people still working could attend.

39. 1:00:27
    One survey or three

    The board agreed to process the October 12 input first and then formulate survey questions, and to combine the planning board, resource protection and historic district questions into a single survey rather than three, on the view that people will not open three, provided the other two groups are ready when the planning board is.

40. 1:05:41
    Looking ahead to public hearings

    Public hearings will be needed in January and February, and the board discussed whether to hold one large hearing on all the proposals or three, depending on how contentious the workshops prove.

41. 1:05:41
    Road ordinance changes as drafted

    The backlot language limiting a back lot to one single family has been struck because of the affordable housing law. The private way provisions are pulled out of section 5.7 and put into 5.23, with staff rather than the planning board approving private roads, as the board had decided the previous winter rather than bring people in to no purpose.

42. 1:05:41
    Why it failed at town meeting last time

    George Thebarge recalled that a select board member pointed out the draft carried the subdivision standard requiring paving after the third lot and asked for gravel as at present; then at town meeting others objected to allowing gravel rather than requiring paving, and there was further confusion about whether the town would take over the roads. At Kevin Nadeau's request, language now appears at C1 on page 34 stating that acceptance of any road for public maintenance requires a town meeting vote.

43. 1:11:00
    Unintended consequence of the new law on back lots

    Members worked out that under option one a back lot served by a 16-foot driveway could carry three units while the front lot carried three more, putting six units on a 16-foot access. The suggested answer was to require 16 feet where the way serves one unit and 20 feet where it serves two or three, though members disagreed over whether an accessory apartment should trip the wider standard.

44. 1:11:00
    Whether to hold the road work back

    A member asked whether the road changes should wait until the affordable housing question is settled, since the width and unit count are bound together. It was noted that applicants who want more than a single back lot already go the private way route instead.

45. 1:16:25
    What the width costs

    The current standard requires a 20-foot road for a back lot, which members said every applicant objects to. A 600-foot road at 20 feet was put at around $60,000, with the extra four feet over 16 accounting for roughly a quarter of that. Against that, 16 feet is already the minimum for fire access, a way cut through woods narrows over time, and the fire chief has to approve it.

46. 1:21:54
    The dimensional standards problem

    A member said the statute is badly written and that while setbacks are clear, nobody knows what dimensional standards covers; if requiring a wider way for a second unit counted as a dimensional difference, the town could not impose it. George Thebarge had already asked MMA, which said it knows no more than the town does, and is waiting on state agency guidelines.

47. 1:27:21
    Disagreement over dropping the backlot changes

    A member argued the board should not touch backlot access this year, since there is no crisis, the voters did not treat it as pressing last year, and the new law creates too much risk of unintended consequences. Another (?) said the board had been specifically asked at a workshop to bring it back, and that the previous vote failed over how it was written rather than a lack of interest. George Thebarge said the workshop comment had been close to evenly split between families wanting back lot access and people worried about road safety.

48. 1:27:21
    What will go forward instead

    The board agreed to drop the backlot access change for this year but still move the multiple backlot language from 5.7 into 5.23 on private ways, which resolves the confusion over what the road commissioner, code officer and planning board each do, and carries the language that the town accepts roads only by town meeting vote, which is what the select board asked for. John Talbot will report this at the select board meeting and hear whether they want it taken on regardless.

49. 1:33:12
    Marking public comment on the agenda

    A member asked that each agenda item say whether public comment will be taken, rather than relying on the general note at the top, since that note does not tell a reader whether a public hearing has been scheduled on a particular item. The board agreed to scrub the top note and mark each item, so people can tell from the agenda whether it is worth coming.

50. 1:33:12
    Next dates and adjournment

    The workshop is October 12 at 6 p.m. at the fire station if it can be booked, and the next regular meeting is October 5 with the Celebration Tree Farm site walk at 5 p.m. and their hearing afterwards if their paperwork is complete. The board adjourned.

What was decided

• 0:06
  Seat Tyler Hutchison as a voting member for the eveningpassed
• 0:06
  Table the conditional use application for Celebration Tree Farm to the next planning board meeting on October 5 (moved by Juliet Caplinger, seconded by Ron Williams), carried 4-0 with one member abstaining because he would not be present that daypassed
• 0:06
  Hold the Celebration Tree Farm site walk at 5 p.m. on October 5, before the regular meeting and, if the applicant's paperwork is ready, a public hearing at 6:30passed
• 0:06
  Accept the minutes from the August 3, 2022 meeting as presented (moved by Allan Purinton, seconded by Tyler Hutchison), carried 5-0passed
• 11:02
  Eliminate condition 1b and rely on MaineDOT's position, provided the applicant has the offset with Patriot Way (?) addressed specifically in the MaineDOT permit, with condition 9 revised accordingly (moved by Allan Purinton, seconded by Tyler Hutchison)passed
• 22:01
  Waive the setting of the two remaining corner pins until after final plan approval, when the other pins are set (moved by Ron Williams, seconded by Allan Purinton)passed
• 32:41
  Agreed, without a vote, to deal with solid waste through a covenant that property owners will not place waste receptacles on the road, as was done on Bowie Hill, rather than trying to bind the town to collect or not collectpassed
• 37:46
  Approve the preliminary subdivision plan subject to the draft approval conditions as amended (moved by Allan Purinton, seconded by Ron Williams), carried 5-0passed
• 54:48
  Agreed, without a vote, to take all three drafted affordable housing options to the public as the basis for the October discussion, leaving room for a fourth to come out of the workshoppassed
• 1:00:27
  Agreed, without a vote, to hold a public workshop at 6 p.m. on Wednesday October 12, at the fire station subject to availability, and to run a single combined online survey covering the planning board, resource protection and historic district questions provided all three are readypassed
• 1:27:21
  Agreed, without a vote, not to bring backlot access changes forward this year because of the uncertainty over the new state law, but to move the multiple backlot language from section 5.7 into 5.23 on private ways, including the requirement that acceptance of a road for public maintenance needs a town meeting vote, with the chair to raise it with the select boardpassed
• 1:33:12
  Agreed, without a vote, to mark on each agenda item whether public comment will be taken and remove the general note at the top of the agendapassed
• 1:33:12
  Adjourn (moved by Juliet Caplinger, seconded by Ron Williams), carried 5-0passed

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 pbminutes_9-7-2022.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.

• Motion not recorded in wordscarried 4-0

  Moved by Allan Purinton, seconded by Ron Williams

• table the conditional use application for Celebration Tree Farm to the next planning board meeting, October 5thcarried 4-0

  Moved by Juliet Caplinger, seconded by Ron Williams

• accept the minutes from August 3, 2022, meeting as presentedcarried 5-0

  Moved by Allan Purinton, seconded by Tyler Hutchison

• accept MDOT’s position as long as the applicant has it addressed specifically in the MDOT permitcarried

  Moved by Allan Purinton, seconded by Tyler Hutchison

• the Board waive setting of the two (2) pins until after the final plan approval and they set the other pinscarried

  Moved by Ron Williams, seconded by Allan Purinton

• approve the Preliminary Subdivision plan subject to the draft approval conditions as amendedcarried 5-0

  Moved by Allan Purinton, seconded by Ron Williams

• adjourncarried 5-0

  Moved by Juliet Caplinger, seconded by Ron Williams

Worth knowing

• 22:01
  The subdivision will have a 120,000 gallon fire pond as its only fire protection, rather than sprinklers in the individual houses. The ordinance allows 36,000 gallons in cisterns or a pond of at least 120,000, the larger figure partly because of drought. The fire chief asked whether a pond will hold water in a year like this one, and members noted another subdivision in town already has a dry hydrant on a dry pond, so a hydrologist will have to confirm the groundwater at whichever site is chosen.
• 32:41
  Twelve households putting bins out on a busy road prompted a long argument about solid waste. Allan Purinton said residents already pay for collection in their tax bill and should not be charged again for a private hauler, and would be entitled to ask for an abatement. The board concluded it cannot bind the town either way and settled on a covenant barring receptacles on the road, as on Bowie Hill.
• 43:23
  A new state law requires every Maine town to allow up to three dwelling units where dwelling units are allowed, and two on vacant lots, with the change in place by next July. Because Durham votes at an April town meeting it cannot wait, and the guidance MMA (?) said it would give towns by this summer has not arrived, with everyone still working out what the law means.
• 1:27:21
  The board split over whether to bring backlot road changes to town meeting again. One member argued the new law makes the risk of unintended consequences too high and that the voters did not treat it as pressing; others said the board had been asked to fix it and that public comment last time ran roughly evenly between families wanting back lot access and people worried about road safety. A 600-foot road built to the current 20-foot standard was put at about $60,000.

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 13 decisions summarised.

Elsewhere

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