Planning Board Meeting ~ June 1, 2016

2016-06-01 · Planning Board · 2:07:39 · watch on YouTube →

The Planning Board dealt with three matters and then spent the last half of the meeting on the land use ordinance itself. It first found it had no jurisdiction over a fill complaint near Pinkham Brook, the applicants and the supplier maintaining that less than 500 cubic yards had been brought in, and arranged for the application fee to be returned. It then worked through a conditional use application to convert a room over a garage into a studio accessory apartment, which turned on two unresolved problems in the town's own paperwork: whether the lot is in the aquifer protection district, since the tax maps and the current aquifer map disagree, and whether an accessory apartment needs extra lot area, on which the board split. The applicant struck the aquifer reference from her application, the board took two competing motions on the density question and then approved the permit with a single condition that the in-home daycare not be expanded beyond six children. Members also adopted the findings for the Pinkham Brook cell tower application and set an ordinance review workshop for June 15. Readers should note the recording does not capture the members' responses to any call for a vote, so those outcomes are recorded here as unclear.

What was discussed

1. 0:02
   Before the meeting: pending appeals

   In conversation before the call to order, members discussed an appeal of a stop work order set for the following week, and a separate matter where a party had expressed an intention to appeal but had not yet filed. A member said they had tried to have both heard together but the second was not ready.

2. 0:02
   Call to order and minutes

   The June 1 meeting was opened with the pledge of allegiance. The previous month's minutes were not available and were tabled, the member who prepares them having no working computer.

3. 0:02
   Continuing business: fill near Pinkham Brook

   Dan and Michelle returned on the question of material pushed over a banking on their property. They said Grover, the supplier, put the amount at less than 500 cubic yards, below the threshold that would give the board jurisdiction, and that the matter was therefore between them and Paul.

4. 5:37
   How much material was brought in

   Members established that 150 yards was crushed rock for the driveway rather than fill, and that it is being trucked back out as the access roads come out. Grover had pulled the delivery slips for the week of the 22nd to the 27th, which showed about 2,000 yards called out from the pit but not all of it delivered to this site; the driveway was done on the Thursday and nothing came after the following Monday.

5. 5:37
   Zoning and the DEP determination

   The parcel is in the rural residential district. Members worked through the distinction that the land is in shoreland resource protection but not in Durham's own Resource Protection District, shoreland zoning never having been folded into the town's zoning. A DEP staff member had determined the filling was within 75 feet of a stream but not within 25, so a permit by rule rather than a special permit was required, which was applied for after the fact, and the site has since been stabilised and the slope graded back.

6. 5:37
   Motion on jurisdiction and the fee

   A member said he would not dispute the volume claim, that his concern was stabilisation of the site and no further harm to the stream, and moved that the board has no jurisdiction. Paul said he would issue a letter and meet the applicants to arrange the return of their fee, which has to go on a warrant and could take a week or two.

7. 10:54
   New application: accessory apartment

   An applicant asked to convert the master bedroom over her garage into a studio accessory apartment, needing only a door, a stove, a sink and the stairwell isolated. Members and the applicant worked out the dimensions on the spot.

8. 15:59
   Size of the apartment and the house

   The room over the garage came out at roughly 18 by 40 feet, about 720 square feet of actual living area once the knee walls are taken off. The main house is about 1,780 square feet on the first floor, with a finished basement including a bedroom and a utility room.

9. 21:12
   Site plan and the design professional waiver

   The application came in as several separate hand-drawn sheets which members had to sort into an order. A motion was made and seconded to waive the requirement that an engineer or surveyor prepare the plan, with Paul writing the applicant's name and address on the official copy.

10. 21:12
    Abutters and contiguous property

    Abutter notices and the sketch map showing the location within the town were accepted. The applicant owns no other adjoining property, so that item was not applicable.

11. 26:36
    Is the lot in the aquifer protection district

    Members could not tell. The zoning maps were changed in 2011 but the tax maps still show the older line, and the two do not agree on whether this lot falls inside the aquifer protection overlay.

12. 26:36
    Reviewing on the conservative assumption

    Members agreed to review the application as though the lot is in the aquifer district, since the applicant had ticked it on her form. Paul noted the aquifer concern is wastewater penetration, and that the septic system, built for a larger daycare use that has since shrunk, is not being enlarged.

13. 26:36
    Boundaries, lot size and setbacks

    The lot is two acres with property lines shown and no covenants, the applicant's official address being on Hallowell Road. Building setbacks for the existing structures were accepted, with members noting the zoning determination is only as complete as the conflicting maps allow.

14. 32:11
    Water supply and wastewater disposal

    The HHE-200 shows a system built for a daycare licensed for 12 children, where the licence is now for six. Paul said the system is slightly undersized for the proposed use but falls within the 10 percent variation the state plumbing code's subsurface wastewater chapter allows, a point he attributed to the site evaluator, Bonnie Cobb, without having verified it himself.

15. 32:11
    The daycare capacity question

    A member pointed out that the earlier conditional use approved the daycare for 12 children and that nothing on the town's side would stop the applicant sizing back up, which the septic could not support alongside an apartment. The applicant offered her assurance, and members proposed a condition that the licence not be expanded back to 12 without prior board approval.

16. 37:12
    Remaining submission items

    Drainage, signage (the daycare sign has been taken down), easements and the shared right of way, exterior lighting, hazardous materials and the planting schedule were each recorded as complete or not applicable. The applicant had drawn her own utility map showing the leach field, the electrical line to the pump house and the satellite dish.

17. 42:12
    Financial capacity and description of use

    With limited site improvements involved, the financial information and the written description of the proposed use were accepted as complete.

18. 42:12
    Approval criteria: pollution and water supply

    The applicant had submitted proposed findings, which the board worked through and adopted one at a time rather than drafting its own. The well was described as drilled, 11 years old, 120 feet deep and producing 40 gallons a minute.

19. 47:37
    Approval criteria: sewage disposal with a condition

    The finding on sewage disposal recorded two tanks with a pump station and a 20 by 64 field, within the 10 percent tolerance. It was moved with the condition that the in-home daycare not be expanded past six children.

20. 47:37
    Approval criteria: fire protection and financial capacity

    The apartment will have hardwired and battery smoke detectors and a fire extinguisher, and the finding was moved with the addition that the property is about a mile from the fire station, with a fire pond on Patriot Way. Total renovation cost is under $5,000, backed by a bank statement, though Paul cautioned the owner may do the carpentry but not the electrical or plumbing because it will not be her own residence.

21. 47:37
    Approval criteria: water bodies

    A member recalled a small stream on the far side of the road that runs when the snow melts, more than 250 feet away. Paul doubted it would meet the shoreland zoning classification for a stream, which requires two streams combining into a single bed on the geological survey map.

22. 53:18
    Groundwater and the groundwater ordinance

    Members hunted through the ordinance for the groundwater provisions and found they had been folded into the aquifer protection overlay section, which covers minimum lot size and the same calculations. Nothing further was found that applied, and the finding was moved.

23. 53:18
    Flood plain criterion

    The applicant reported the property is not in a flood zone and the criterion was moved as not applying.

24. 58:36
    Wildlife, noise and glare, municipal services

    Findings were moved on wildlife habitat, on noise, odour, glare and vibration, and on the burden on municipal, governmental and educational services. Members traced the single new exterior light to the garage side of the house, noted a landscaped buffer on that side and that the neighbours' house sits well back in the woods.

25. 58:36
    Minimum density per dwelling unit

    The board reached the requirement it expected to be the difficulty. The ordinance sets a minimum density of one dwelling unit per two acres and, for a house converting to two units, 45,000 square feet for the second unit on top of 90,000 for the first. The lot is just over 90,000 square feet, roughly 40,000 short of that combined figure.

26. 1:03:54
    Two readings of the ordinance

    Paul read the accessory apartment provision as not carrying the extra dimensional requirement, pointing to its stated purpose of providing housing diversity while protecting the single family character of neighbourhoods, and to the requirement that the apartment be subservient to and part of the main residence rather than a duplex or townhouse. Another member said the ordinance defines an accessory apartment as a separate secondary dwelling unit with no exception written in. Paul acknowledged that past enforcement had applied the extra lot area to duplexes and townhouses but never to accessory apartments.

27. 1:09:12
    Aquifer minimum lot size raised

    A member noted that the minimum lot size in the aquifer protection overlay district is three acres, which would make this a non-conforming lot if it is in the overlay. Paul said the town changed the aquifer boundary in 2011 and never updated its mapping, so the tax maps suggest the lot is inside while the current map behind them suggests it is not.

28. 1:09:12
    Competing motions on density

    A member moved that the application does not meet the minimum density per dwelling unit requirement, saying that if it went unseconded the board should move on; it was seconded. A contrary motion was then made that, since the ordinance permits one accessory apartment per lot and a lot is anything of 90,000 square feet or more, the application conforms.

29. 1:14:57
    Accessory apartment criteria

    The board worked through the specific criteria: one main entrance, a main dwelling of more than 1,500 square feet with the apartment less than half that, only one accessory apartment, made part of the main residence, and not permitted on a non-conforming structure or use. One member said she could not vote for the non-conformity item while the aquifer question was open.

30. 1:14:57
    Whose job it is to resolve the maps

    Asked whether the town could simply settle whether the property is in the aquifer district, Paul said that under this and any ordinance the burden of proof falls on the applicant, and that tax maps are not used for specifics. He agreed the town had not done its diligence on mapping but said that does not relieve the applicant of proving compliance.

31. 1:20:21
    Reading the aquifer maps

    Members traced the ordinance definition to a named hydrologic map of significant sand and gravel aquifers, dated 1982 in the ordinance but updated by the state in 2011. Comparing the old blue outline with the current red one on the map on the wall, the applicant's house appears to fall outside the current aquifer, while the tax maps still show the older line.

32. 1:25:22
    Aquifer struck from the application

    Members noted the state geological survey determines the aquifer, so it changes regardless of the date printed in the ordinance. The applicant then requested on the record that the aquifer protection reference be struck from her application, and the board treated the application as amended.

33. 1:25:22
    Layout and occupancy of the studio

    The stairs down to the garage will be closed over, leaving a pass-through, and a wall moved to open up the living space. Asked whether the town or state limits how many people may live in a studio, Paul said he knew of no town limit, that the wastewater standard counts two people per bedroom, and that a studio could take a couple.

34. 1:30:25
    Performance standards

    The board then ran through the separate performance standards in a rapid series of motions, covering air and water pollution, water supply, soil erosion, vehicular access, solid waste, landscaping and buffering, historical and archaeological resources, natural resources, financial and technical capacity, noise, odour, lighting, explosive materials, signage and educational services. Members remarked throughout on how far the standards duplicate the approval criteria already taken.

35. 1:35:45
    Conditional use permit

    The permit was moved for approval with the single condition that the in-home daycare not be re-expanded beyond six children. Members confirmed no separate condition on the aquifer was needed because the application itself had been amended.

36. 1:35:45
    Combining the two ordinance lists

    Paul explained that the approval criteria rest on the performance standards, so a board that has approved against the standards need not do it twice. Members agreed the two lists never line up, are numbered and worded differently, and should be combined so that each subject is voted once.

37. 1:35:45
    Pinkham Brook findings of fact

    Returning to the application considered the previous month, a member reported obtaining the Word version of the proposed findings from Jim Seymour, the applicant's engineer, and finding only grammatical differences from the copy the board had worked on. She had filled in the motions and drafted a conditional use permit with the conditions as she understood them.

38. 1:40:59
    Conditions on the tower

    Paul said he needs to see the bond and the easement before permitting construction, that the planting must be completed before the certificate of occupancy, and that the bond is released once the certificate is issued.

39. 1:40:59
    Removal at the end of the lease

    A member asked what guarantee the town has that the structure can be taken down when it is no longer needed, a problem the board had run into before. Members noted removal is referenced in the lease with the Quakers, but that enforcing against a shell LLC with no assets would achieve little, and that the performance bond only covers the construction phase.

40. 1:40:59
    Aviation lights

    The tower is designed to an elevation under 200 feet above ground level, below the FAA threshold requiring aviation warning lights. The previous month's motion had been amended to allow no lights other than as described and was recorded as carried four to nothing.

41. 1:46:03
    Adopting the findings and signing

    A motion was made and seconded to adopt the findings of fact and conclusions as presented, with one member abstaining because she had not attended the meeting at which the application was heard. Copies were to be signed, one kept in the file and one given to the applicant, with a copy forwarded to the engineer who had asked to see the final conditions.

42. 1:46:03
    Ordinance review: what to work on

    Members identified three sections to tackle: back lots, subdivision and appeals, plus recurring problems such as minimum lot size and minimum density per dwelling unit. Members recalled that the previous attempt, which started with the definitions, made no progress.

43. 1:51:26
    Whether to be a formal committee

    Members concluded that formal committee status would mean going to the select board for endorsement, recorded meetings, and no work outside the public forum. They preferred to remain an informal group presenting recommendations to the planning board, identifying issues together and then drafting individually rather than word-smithing in session.

44. 1:51:26
    Facilitation and site plan review

    GPCOG had quoted about $70 an hour, roughly $250 a meeting plus travel, and the money set aside would have covered about six pages, so members thought it not worth the investment. Paul raised moving from conditional use to site plan review, which he said would let the board review by use rather than applying one process to everything, and offered to circulate material on how it is structured.

45. 1:56:37
    Fitting in with the comprehensive plan

    The comprehensive plan committee's first meeting was set for June 21 and the process was expected to run 18 months to two years. Members agreed not to wait, on the basis that the dysfunctional parts of the ordinance need fixing regardless and that dimensional figures can be adjusted later, accepting that changes will go to town meeting a chunk at a time over several years.

46. 2:01:46
    Workshop date

    After working around a select board meeting, elections on the 14th and the comprehensive plan committee on the 21st, members settled on Wednesday June 15 at 6:30 and agreed to notice it as a public workshop. Members were asked to go through the ordinance with a highlighter beforehand.

47. 2:01:46
    Topics for the workshop

    Home-based business was put back on the list, along with buffering in commercial and industrial uses following the problems with the garage and the tower, and expanding the table of uses, which members said is far shorter than in comparable ordinances.

48. 2:06:50
    Closing

    Paul agreed to email the current version of the ordinance as a Word document so members could mark it up. A motion to adjourn was made and seconded.

What was decided

• 0:02
  The previous month's minutes were tabled, not having been prepared.tabled
• 5:37
  Motion that the board has no jurisdiction over the fill application, the parcel being in the rural residential district with less than 500 cubic yards of fill brought in. Seconded; a vote was called and no result is audible. Paul immediately went on to arrange a letter and the return of the application fee.outcome unclear
• 21:12
  Motion to waive the requirement that an engineer or surveyor prepare the site plan for the accessory apartment application, seconded. No result is audible.outcome unclear
• 26:36
  Agreed to review the accessory apartment application as though the lot lies in the aquifer protection district, as the most conservative approach given the town's maps disagree.passed
• 42:12
  Motions to adopt the applicant's proposed findings on undue water and air pollution and on sufficient water supply, seconded. No results are audible.outcome unclear
• 47:37
  Motion to adopt the proposed finding on sewage disposal with the condition that the in-home daycare not be expanded past six children, seconded. No result is audible.outcome unclear
• 47:37
  Motions to adopt the proposed findings on soil erosion, road congestion, fire protection with the addition that the site is a mile from the fire station, scenic and natural beauty, and financial and technical capacity. Each was seconded; no results are audible.outcome unclear
• 53:18
  Motions to adopt the findings on groundwater quality and quantity, and that the flood plain criterion does not apply, the property not being in a flood zone. Seconded; no results are audible.outcome unclear
• 58:36
  Motions to adopt the findings on wildlife habitat, on noise, odour, glare and vibration, and on the burden on municipal and educational services. Seconded; no results are audible.outcome unclear
• 1:09:12
  Motion that the application does not meet the minimum density per dwelling unit requirement, moved with the mover saying that if it went unseconded the board should move on. It was seconded and a vote called; no result is audible, and the board went straight on to a contrary motion, which suggests it did not carry.outcome unclear
• 1:09:12
  Contrary motion that, because the ordinance permits one accessory apartment per lot and a lot is anything of 90,000 square feet or more, the application conforms to the minimum density requirement. A vote was called and at least one member is heard voting against; no result was announced.outcome unclear
• 1:25:22
  The applicant requested on the record that the aquifer protection district reference be struck from her application, the current state map appearing to place the property outside the district, and the board treated the application as amended.passed
• 1:25:22
  Motion that the application meets the criteria for an accessory apartment, on the grounds that there is only one main entrance, it meets the size requirements, there is only one apartment, and it is not a non-conforming structure or use. No result is audible.outcome unclear
• 1:30:25
  A series of motions, each seconded, finding the application meets each performance standard in turn: air pollution, water pollution, water supply, soil erosion, vehicular access, solid waste, landscaping and buffering, historical and archaeological resources, natural resources, financial and technical capacity, noise, odour, lighting, explosive materials, signage and educational services. No results are audible.outcome unclear
• 1:35:45
  Motion to approve the conditional use permit for the accessory apartment with the single condition that the in-home daycare not be re-expanded beyond six children. Seconded; no result is audible.outcome unclear
• 1:46:03
  Motion to adopt the findings of fact and conclusions for the Pinkham Brook application as presented and to approve the conditional use permit as drafted, seconded, with one member abstaining because she had not attended the meeting at which it was heard. No result is audible, but members went on to sign the copies.outcome unclear
• 1:51:26
  Agreed that the ordinance review group would not seek formal committee status, which would require select board endorsement and recorded public meetings, and would instead continue as an informal group identifying issues together and drafting individually.passed
• 1:56:37
  Agreed not to wait for the comprehensive plan before amending the land use ordinance, on the basis that changes will go to town meeting a section at a time over several years.passed
• 2:01:46
  Ordinance review workshop set for Wednesday June 15 at 6:30, to be noticed as a public workshop, with Paul to email members the current ordinance in Word.passed
• 2:06:50
  Motion to adjourn, seconded. No result is audible.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.

Motions the minutes record

The town's own written account of what was decided, taken from planningminutes1june2016.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.

• the Planning Board has no Jurisdiction over this projectcarried 4-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• the Application Checklist is completecarried 5-0

  Moved by Mindy Woerter, seconded by Anne Torregrossa

• Item #8 does not meet the criteria for the Southwest Growth districtfailed

  Moved by Anne Torregrossa, seconded by Mindy Woerter

• the Conditional Use conformscarried

  Moved by Todd Beaulieu, seconded by John Simoneau

• find that the Conditional Use meets the Accessory Apartment Criteria: one main entrance, size requirements, only one apartment and it is not in a non- conforming structure and will not be used for a non-conforming usecarried 5-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• approve the Conditional Use Permit as drafted by Vice Chairman Anne Torregrossacarried 5-0

  Moved by Todd Beaulieu, seconded by Michael Fitzpatrick

• Adopt the Conditional Use Performance Standards Responses for Pinkham Book, LLC Proposed Tower and Telecommunications Facility off Pinkham Brook Road (State Route #125) as presentedcarried 5-0

  Moved by Anne Torregrossa, seconded by Todd Beaulieu

• Adjourn at 9:06 p.mcarried 5-0

  Moved by Anne Torregrossa, seconded by Todd Beaulieu

Worth knowing

• 1:03:54
  The board split over whether an accessory apartment requires extra lot area. The lot is just over two acres, about 40,000 square feet short of what the ordinance sets out for a second dwelling unit; Paul read the accessory apartment provision as exempt from that, another member said no such exception is written in, and Paul acknowledged past enforcement had applied the extra area to duplexes and townhouses but never to accessory apartments.
• 1:20:21
  Durham's maps contradict each other on the aquifer protection district. The overlay was changed in 2011 but the tax maps still show the pre-2011 line and the ordinance still cites a 1982 map. Paul said the town has not done its diligence on mapping, but that the burden of proving which line applies still falls on the applicant.
• 1:40:59
  The board has no reliable way to ensure the Pinkham Brook tower is removed when it is no longer used. Removal is referenced in the lease with the Quakers, but members noted that enforcing against a shell company with no assets would achieve nothing and that the performance bond only covers construction.
• 1:51:26
  GPCOG quoted about $70 an hour, roughly $250 a meeting plus travel, to facilitate rewriting the land use ordinance. Members said the money set aside would have covered about six pages, so the board decided to do the work itself, a section at a time, with each round going to town meeting.

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: 5 passages of motion language, against 20 decisions summarised.

Elsewhere

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