Planning Board Meeting ~ June 28, 2017

2017-06-28 · Planning Board · 2:25:38 · watch on YouTube →

A Durham Planning Board meeting on June 28, 2017 given over almost entirely to Barry Baldwin's subdivision off Granite Hill Farm Road. The board opened and closed a public hearing at which no members of the public appeared, then worked through the subdivision approval criteria one by one with Baldwin's engineer, adopting findings on water supply, erosion, traffic, sewage, solid waste, wildlife habitat, floodplain, phosphorus and the rest, and attaching conditions requiring deed-restricted no-cut buffers on the recorded plat, a professional engineer to oversee erosion control, and a copy of the Maine DEP storm water permit before final approval. The review ran into two unresolved questions: a state letter reporting two significant vernal pools where the applicant's surveys found one, and, more seriously, whether the road must be paved. That turns on whether the project is a subdivision, where roads serving more than three dwellings must be paved, or a back lot development, which requires everything except paving in exchange for larger lots, and on the legal status of Granite Hill Farm Road, a county road discontinued years ago. The board voted to ask an attorney chosen by the select board for an opinion on both points and tabled the application to its August 2 meeting.

What was discussed

1. 0:10
   Call to order and order of business

   The chair opened the meeting with a quorum present and the pledge of allegiance, and was reminded that the public hearing had to be called to order before other business. The board settled on taking the minutes first because they were needed for Baldwin's case.

2. 0:10
   Minutes of the last meeting

   The minutes were approved with an amendment adding checklist item 51 to the list of items that had been deemed incomplete.

3. 0:10
   Public hearing on the Mineral Spring Estates (?) application

   The chair opened the public hearing and asked for comment. No members of the public were present, and Baldwin declined the chance to speak, so the hearing was closed and the board moved to the approval criteria.

4. 5:15
   Wildlife habitat and natural areas letters

   The engineer walked the board through his June 24 memo. Checklist item 33 was a letter from Maine Inland Fisheries and Wildlife reporting no endangered or otherwise significant habitat, and item 34 the equivalent from the Maine Natural Areas Program. A member questioned the department's caveat that its comments were non-specific because of the general nature of the map supplied; the engineer said the locus map with a digitized property line is the standard submission, that the department works from its GIS database for a $150 fee, and that the caveat appears on every letter he receives.

5. 5:15
   Storm water permit for the Runaround Pond watershed

   Because the site is in the Runaround Pond watershed, a Chapter 500 storm water permit is required from Maine DEP, and the abbreviated report with phosphorus calculations was before the board. The application was in the pre-application stage; once the full permit is filed a copy is left at the town office for public inspection, and the department takes about 30 days to review.

6. 10:19
   Traffic generation

   Using the ITE figures of ten daily trips and one peak hour trip per single family home, the engineer calculated a maximum of 80 daily trips and eight morning peak hour trips for the eight homes that would eventually use the road. That is far below the threshold at which the state reviews traffic impacts, so he was confident in finding negligible impact.

7. 10:19
   Cost estimate for the road

   The engineer's opinion of probable cost, checklist item 53, reflects the fact that Baldwin already has most of the material on site and owns the equipment, so the figures are lower than a general developer would face. Baldwin will crush the rock already stockpiled, mix it with finer material for the gravel base, and balance cuts and fills within the right of way.

8. 10:19
   Storm water treatment by forested buffers

   There are no structural treatment methods. Ditches turn out to level lip spreaders that diffuse flow into forested roadside buffers, and the ordinance's 50-foot setback from the road happens to match DEP's required forested buffer width. Those areas become deed-restricted no-cut buffers using DEP's standard deed language.

9. 15:40
   Showing the no-cut buffers on the plan

   The buffers do not appear on the plan as submitted. The engineer said he prefers to show them both on a separate issued buffer plan and on the recorded plat so that anyone researching a lot will find them, and the board agreed this would be a condition of approval, with the mylar not signed until the buffers appear in the right locations.

10. 15:40
    Deer wintering area on the state map

    Members struggled to read the state's map in black and white, trying to work out whether the marked deer wintering area falls on the property or in the floodplain near Libby Brook. The engineer explained the concentric circles are the department's search area rather than mapped features, and undertook to bring colour copies and to overlay his plan on the state map in CAD.

11. 21:22
    Missing Natural Areas Program attachment

    The engineer realised he had filed the wrong attachment: the two responses arrive as similarly named documents and he had included the Inland Fisheries letter twice. He offered to email or drop off the correct one; a member noted material has to be considered in open session rather than circulated by email for discussion.

12. 21:22
    Contacting the biologists named in the letter

    Asked whether he had contacted the staff named in the state's letter, the engineer described those recommendations as boilerplate attached to every response. There are no streams within the buffer distances shown on the survey and no stream crossings requiring an NRPA permit by rule, which is the point at which those biologists would normally be consulted.

13. 26:34
    Two vernal pools on the state's map, one on the ground

    The state letter reports two significant vernal pools in the area while the applicant's delineation identified one, around which the plan already keeps a 250-foot setback. The engineer said he would bet the state's locations came from medium intensity soil mapping and contours rather than a site visit, and offered to ask the state for the source and send them the survey data so the mapping can be corrected.

14. 26:34
    Bat regulations

    Members and the engineer discussed the northern long-eared bat, noting Maine does not have the Indiana bat, and that absent a documented hibernaculum nearby the constraints are limited, though a federal Army Corps permit can trigger a bat study or a restriction on clearing outside approved limits.

15. 31:41
    Approval criteria, performance standards and state law do not line up

    Members noted they must cross-check three documents, the ordinance's approval criteria, its performance standards and the state subdivision statute, which do not match each other. One member had drafted additional conditions to close what she saw as gaps, notably road geometry requirements and the road maintenance agreement, which appear in the performance standards but not in the approval criteria. Members recalled an attempt to rewrite the ordinance that ran out of steam when the consultant and the code enforcement officer left.

16. 36:54
    Criterion 1: water and air pollution

    The finding rested on the soils report and septic test pits and on the site being above the floodplain as shown in the design. Members checked whether groundwater had been addressed and were pointed to the seasonal high water table recorded in the test pit reports, where lot three showed groundwater at 16 inches and the others hit a restrictive layer.

17. 41:56
    Criterion 2: sufficient water supply

    Members discussed the requirement that well flow test results be given to the code officer before the first building permit, and the practical difficulty of drilling a well before a permit is issued. A longer-serving member said that in his experience the only thing ever required was the state letter showing well depths in the area, and the finding was made on that letter, the fire chief's letter on water supply for fire protection, and the small scale of the project.

18. 41:56
    Criterion 3: burden on existing water supply

    Members observed this criterion appears aimed at municipal water supply, which Durham does not have, with a reference to the aquifer inserted at some point. The finding was made on the basis that there are only eight proposed building lots.

19. 48:27
    Erosion control and where stockpiles go

    Working through the performance standards on preserving the landscape and controlling erosion, a member asked whether staging areas and fill stockpiles should be shown on the plan, noting the standard barring storage of fill within 50 feet of a water body. The engineer replied that DEP best management practices already govern loam piles, winter stabilisation and stockpiles, that the standard notes are on drawing C300, and that in 16 years he had never shown stockpiles on a subdivision plan because the contractor moves them as work proceeds.

20. 53:38
    Condition requiring a professional engineer

    A member proposed adding a condition that the applicant retain a professional engineer with the knowledge and expertise to demonstrate compliance with the ordinance's erosion control, construction and storm water requirements, consistent with the DEP permit, taking the language from the technical capacity performance standard. The reason given was that the town has no engineer of its own, with the code officer covering inspections, so the engineer's licence is the practical safeguard.

21. 59:04
    Criterion 4: soil erosion

    The finding cited the preserved landscape, a storm water design being permitted by Maine DEP, a submitted erosion control plan and a licensed professional engineer providing the design services. The engineer confirmed the buffers must be flagged and pinned before any disturbance under DEP rules, and that damaging them during construction could nullify the storm water permit.

22. 59:04
    Criterion 5: traffic

    The finding was that the subdivision will not cause unreasonable congestion or unsafe conditions, given the minimal traffic generated by eight housing lots, that the access is not onto a state highway, and that the location is not in an urban compact area of concern to the Department of Transportation.

23. 1:04:13
    Criterion 6: sewage disposal

    Members agreed this is handled through the state permitting process, since no building permit issues without an approved subsurface wastewater application. The finding rested on the test pits provided and on each system being licensed and permitted under the applicable codes.

24. 1:04:13
    Criterion 7: solid waste, and whether the truck will come up the road

    Members discussed at length whether the town's contracted hauler will collect on a private road. The consensus from experience was that it will, provided there is an adequate turnaround and everyone on the road signs an agreement releasing the hauler from responsibility for the road, and that otherwise residents bring bins to the end. The finding was that eight houses will not burden the municipality's ability to dispose of solid waste or its contract capacity.

25. 1:09:39
    Criterion 8: scenic and natural beauty

    Members worked through the performance standards on stone walls and granite markers more than a hundred years old, federally listed plants, and public access to water bodies, and noted that the cemeteries marked on the state's map were not on the property. They also noted that the access is a public easement over a county road that was discontinued and which the town then stopped maintaining.

26. 1:14:52
    Whether to hold criterion 8 for the vernal pool question

    A member wanted to wait for the missing Natural Areas letter and for the state's response on the two mapped vernal pools. The engineer argued a qualified scientist's field delineation trumps the state's GIS layer, that the town's letters are only step one in the process and the follow-up study had already been done and paid for, and Baldwin said he had paid two different people to delineate the wetlands. The board resolved it by making a finding and attaching the outstanding documents as a condition.

27. 1:25:45
    Criterion 10: financial and technical capacity

    The board had a bank statement, a letter of commitment and a cost estimate consistent with the engineer's. Baldwin described building two subdivision roads in town previously, one his own and one he took over to bring up to standard. The finding recorded his construction experience and a licensed engineer under contract.

28. 1:25:45
    Who inspects a subdivision road

    The discussion turned to the ordinance's road committee, which members said is ill-defined, consisting of the chairs of the planning board and select board, neither of whom necessarily has road experience. Baldwin argued that an engineer should be part of that process and that the provision needs to be readdressed.

29. 1:31:14
    Criterion 11: shoreland and wetlands

    The only water body is a brook that is dry in summer and runs in the spring. Members worked through the definition of a wetland of special significance, concluded the wetland where the road ends is ordinary forested wetland, and noted that impacts under a tenth of an acre are exempt, which the road crossing would be well within. The finding was that the project is not within 250 feet of any wetland, great pond or river as defined in Title 38, so the criterion does not apply.

30. 1:36:35
    Criteria on groundwater, floodplain, wetlands, farmland and watercourses

    A run of findings followed: septic systems appropriately permitted so groundwater quality is not adversely affected; the site outside the 100-year floodplain on the FEMA maps, with members noting Durham requires the lowest floor three feet above flood elevation where one foot is usual; freshwater wetlands identified on the submitted maps; no farmland within the application; and rivers, streams and brooks within or abutting the subdivision identified on the plan.

31. 1:41:45
    Storm water permit as a condition of approval

    Because the DEP application was still in pre-application review and could take up to 90 days, the board made the finding on storm water management conditional on a copy of the DEP storm water permit being provided before final approval and before the mylar is released for recording, so that Baldwin would not have to come back to the board.

32. 1:41:45
    Shore frontage and municipal boundaries

    The spaghetti lot provision on shore frontage was found not applicable, since no lot fronts a river, stream, brook, great pond or coastal wetland. The subdivision was found not to cross any municipal boundary.

33. 1:46:45
    Phosphorus and timber harvesting

    On phosphorus, members relied on the DEP permit conditions and the substantial wooded buffer before Libby Brook, noting the state has moved from structural treatment to vegetative buffers. On timber harvesting, Baldwin said he had filed an intent to cut and had never had a Maine Forest Service violation, and the finding was that there was no evidence of harvesting in violation of the rules.

34. 1:52:54
    Wildlife habitat, nuisance and municipal services

    Reading the locus map against the state's black and white map, members concluded the deer wintering area lies south of Granite Hill Farm Road while Baldwin's land is north, and found no adverse impact on spawning grounds, aquatic life, birds or wildlife habitat. Further findings covered noise, odour, glare and vibration, and the burden on municipal government and educational services, both resting on a maximum of eight residences on a private road.

35. 1:52:54
    Road construction standards and gradation records

    A member proposed a condition that Baldwin submit his gradation and compaction records to the code enforcement officer. Baldwin said the ordinance already requires that material be given to the road committee before its inspection; the member responded that on her reading those provisions apply only where the town is considering accepting a road, which will never happen here, and that she wanted to close the gap.

36. 1:58:04
    The paving question and whether this is a subdivision or back lots

    The subdivision provisions require all public and private streets in a subdivision of three lots or more to be paved, with private streets serving no more than three dwelling units left unpaved. Baldwin's position is that he is proceeding under the back lot provisions, which require everything a subdivision requires except paving, in exchange for five-acre lots rather than the smaller lots paving would force. A member countered that a back lot is defined as a lot without frontage on a public or private road, so if Granite Hill Farm Road counts as a road frontage road the back lot route is not available, and the two cannot be had both ways.

37. 2:03:19
    The status of Granite Hill Farm Road

    Baldwin said a previous planning board, after a long dispute involving his attorney, the code enforcement officer and then town attorney Kurt Weber, had determined Granite Hill Farm Road to be a road frontage road, returned his back lot application fee and told him he could pull building permits. A member replied that the attorney's opinion was less definitive than that and that a planning board determination not attached to an application is only advisory, since building permits are outside the board's purview. Members also noted the road was discontinued by the county commissioners with rights reserved to abutters, and that state law on discontinued roads has been revised several times.

38. 2:09:00
    Options if paving is required

    Members set out the alternatives: pave the road, seek a variance from the appeals board, which requires meeting all four criteria and is very difficult, defer paving until three residences are built, or change the ordinance at town meeting. Members observed that the back lot provisions appear to be widely used precisely to avoid the cost of paving, and that the board has discussed changing this for that reason.

39. 2:14:02
    Seeking a legal opinion

    A member moved to ask an attorney of the select board's choosing for an opinion on the status of Granite Hill Farm Road and on whether the road must be analysed under the back lot provisions or the subdivision provisions. Members named two attorneys known for road and discontinued road work but could not recall the names precisely, and agreed to send suggestions to the select board. A member said the road question had made her nervous about the whole plan, both as a legal exposure for the town and as a maintenance dispute waiting to happen between future residents.

40. 2:19:24
    What is left and tabling the application

    Members reviewed what remained: the road and paving question and the road maintenance agreement, with the rest of the criteria addressed. Baldwin agreed to have his attorney supply the file of correspondence, and members suggested the former planning board chairman might still hold records. The application was tabled to the next meeting.

41. 2:25:02
    Next meeting

    The next planning board meeting was set for Wednesday, August 2, with applications, nine separate packets, due by close of business at 4:30 p.m. on Monday, July 24.

What was decided

• 0:10
  Approve the minutes of the previous meeting with an amendment adding checklist item 51 to the items deemed incomplete. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 15:40
  Make it a condition of approval that the deed-restricted no-cut buffers appear on the buffer plan and on the recorded plat, with the mylar not signed until they are shown in the locations matching the DEP permit.passed
• 36:54
  Criterion 1: find that the subdivision will not result in undue water and air pollution, based on the soils study for septic disposal and the property being above the floodplain as shown in the design. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 41:56
  Criterion 2: find sufficient water supply, based on the state letter of well depths in the area, the fire chief's letter that there is sufficient water for fire protection, and the small scale of the project. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 41:56
  Criterion 3: find that the subdivision will not cause an unreasonable burden on the existing water supply including the aquifer, because there are only eight proposed building lots. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 53:38
  Add a condition that the applicant retain a professional engineer with the knowledge and expertise to show compliance with the ordinance's erosion control, construction and storm water requirements and with the Maine DEP permit, the town having no engineer of its own. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 59:04
  Criterion 4: find that the subdivision will not cause unreasonable soil erosion or reduce the capacity of the land to hold water, citing the DEP-permitted storm water design, the submitted erosion control plan and the licensed engineer providing the design. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 59:04
  Criterion 5: find that the subdivision will not cause unreasonable highway or public road congestion, because of the minimal traffic generated by eight housing lots. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:04:13
  Criterion 6: find that adequate sewage and waste disposal will be provided, the applicant having supplied test pits and each system requiring a state licence and permit before a building permit can issue. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:04:13
  Criterion 7: find that the subdivision will not cause an unreasonable burden on the municipality's ability to dispose of solid waste. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:20:05
  Criterion 8: find no undue adverse effect on scenic or natural beauty, citing the wetland delineation, the identified vernal pool, letters from the state agencies and the small proportion of the parcel to be developed, with the colour maps and the missing Natural Areas Program letter to be supplied as a condition. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:25:45
  Criterion 10: find that the subdivider has adequate financial and technical capacity, having submitted budgets, financial statements and the construction experience, with a licensed engineer under contract. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:31:14
  Criterion 11: find that the project is not within 250 feet of any wetland, great pond or river as defined in Title 38, chapter 3, so the shoreland criterion does not apply. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:36:35
  Find that the subdivision will not adversely affect the quality of groundwater, the septic systems being permitted under the state subsurface wastewater rules. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:36:35
  Find that the project is not within the 100-year floodplain on the FEMA boundary maps and that the floodplain standard is met. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:36:35
  Find that all freshwater wetlands within the proposed subdivision have been identified on the maps submitted with the application. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:36:35
  Find the farmland criterion not applicable, there being no farmland within the application. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:36:35
  Find that the rivers, streams and brooks within or abutting the subdivision have been identified on the maps submitted with the application. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:41:45
  Find that adequate storm water management will be provided because the project will hold a Maine DEP storm water permit, conditional on a copy of that permit being provided before final approval and before the mylar is released for recording. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:41:45
  Find the shore frontage, or spaghetti lot, criterion not applicable, no lot fronting a river, stream, brook, great pond or coastal wetland. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:41:45
  Find that the subdivision does not cross any municipal boundary, so the criterion on traffic in an adjoining municipality does not apply. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:46:45
  Find that the long-term effect of the subdivision will not unreasonably increase phosphorus concentration during construction or over the life of the subdivision, given the DEP permit and the substantial wooded buffer. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:46:45
  Find no evidence that the parcel has been harvested in violation of Maine Forest Service rules. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:52:54
  Find no adverse impact on spawning grounds of fish, aquatic life, birds or other wildlife habitat, the mapped deer wintering area lying south of Granite Hill Farm Road while the parcel is north of it. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 1:52:54
  Find that the subdivision will not cause noise, odour, glare or vibration disturbing the peaceful enjoyment of adjacent property, given a maximum of eight residences. Moved and seconded, and the chair called the vote, but no result is audible on the recording.outcome unclear
• 2:14:02
  Request an opinion from an attorney of the select board's choosing on the status of Granite Hill Farm Road and on whether the road must be analysed under the back lot provisions or the subdivision provisions of the ordinance.passed
• 2:19:24
  Table the application until the next planning board meeting on August 2, pending the legal opinion on the road and the outstanding road maintenance agreement.tabled

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 planningminutes28june2017.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.

• Approve the June 7" 2017 Minutes as Amendedcarried 4-0

  Moved by Anne Torregrossa, seconded by John Simoneau

• Table until August 2 2017. John Simoneau '

  Moved by Anne Torregrossa, no seconder recorded; no outcome recorded

• Adjourn at 9:35 p.mcarried 5-0

  Moved by John Simoneau, seconded by Anne Torregrossa

Worth knowing

• 1:58:04
  The whole application turned on whether the access road must be paved. Under the subdivision provisions any private street serving more than three dwellings must be paved; under the back lot provisions the same standards apply except paving, in exchange for five-acre lots. Which applies depends on whether Granite Hill Farm Road, a county road discontinued years ago, counts as a road frontage road, and the board voted to buy a legal opinion rather than decide, tabling the application to August 2.
• 31:41
  Members said the ordinance's approval criteria, its own performance standards and the state subdivision statute do not line up with each other, so each finding has to be cross-checked against all three. An earlier attempt to rewrite the ordinance stalled when the consultant and the code enforcement officer both left.
• 53:38
  The town has no engineer of its own and the code officer covers inspections, so the board attached a condition that the applicant retain a professional engineer to demonstrate compliance with erosion control, construction and storm water requirements, on the reasoning that the engineer's licence is the practical safeguard.
• 26:34
  The state's records show two significant vernal pools on or near the parcel where the applicant's field delineation found one. The engineer said the state's locations were almost certainly derived from soil mapping rather than a site visit, and the board accepted the delineation while asking that the state be given the survey data so its mapping can be corrected.

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: 8 passages of motion language, against 27 decisions summarised.

Elsewhere

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