Planning Board Meeting ~ July 10, 2024

2024-07-10 · Planning Board · 2:08:13 · watch on YouTube →

Regular meeting of the Durham Planning Board on July 10, 2024, postponed from July 3 because of the holiday, with four members present. The board approved a road maintenance agreement for a back lot access easement at 470 Auburn-Pownal Road, then spent most of the meeting on a conditional use application to expand a home daycare at 706 Hallowell Road from 12 to 20 children. The board decided not to hold a public hearing on the daycare, worked through the eight conditional use criteria one at a time, and granted conditional use approval subject to two conditions, with site plan review still to come. The remainder of the meeting was a discussion of battery energy storage systems led by town planner George Thebarge, who presented research on other communities' ordinances and New York State fire safety recommendations and laid out four options for Durham. The board reached a consensus to bring two of those options, an outright prohibition or a moratorium for further study, to the public. The July 24 meeting was cancelled and the battery storage discussion moved to August.

What was discussed

1. 0:01
   Call to order, quorum and minutes

   John Talbot opened the meeting, noting it had been postponed from July 3 for holiday conflicts, and confirmed a quorum of four members. The June 5 minutes were not ready and were deferred to the August meeting.

2. 0:01
   Town planner's report

   George Thebarge said responsibility for taking minutes had now been assigned and both sets would come to the board next month. He reported that the select board appointed a steering committee for community facilities vision planning, that the resource protection working group meets again July 31, that a meeting on overhauling the historic preservation regulations is set for August 13, and that a Maine Municipal Association planning board and board of appeals workshop is July 30 in Freeport.

3. 5:03
   Maintenance agreement, 470 Auburn-Pownal Road, Map 9, Lot 26

   David Berringer said he is dividing one large lot into two, with the rear lot reached by an easement, and that a maintenance agreement had been drafted to share road responsibility between the two owners. George Thebarge explained the ordinance requirements for back lot access, including the 300 feet of frontage created by the easement, the 50-foot right of way, lien authority for unpaid maintenance costs, and recording of the agreement before permits issue. He noted the submitted documents met the requirements except for a statement that all deeds reference the maintenance agreement.

4. 10:16
   Conditional use review, home daycare expansion at 706 Hallowell Road, Map 7, Lot 35

   Andrea Nash (?) said she holds a licensed home daycare for 12 children, the maximum for a home daycare, and wants to build an addition to expand capacity to 20 children. The board explained that conditional use approval is the first step and site plan approval the second.

5. 15:36
   Whether to hold a public hearing on the daycare

   The board discussed whether a public hearing was needed given the volume of written comment already received, and noted the comments largely came from people who are not abutters. Members agreed a hearing was not necessary and proceeded to the criteria.

6. 20:40
   Criterion 1: public health impacts

   The board reviewed the new septic system design, which is approved by the state, and a public comment asking whether the well should be treated as a public water supply requiring a 400-foot separation from the septic system. Thebarge said the public water supply classification applies at 25 or more people, and the applicant stated a maximum of 24 people, being 20 children and four employees. A finding was added recording that maximum.

7. 26:05
   Criterion 2: traffic safety, driveway and parking

   Nash (?) described adding a parking lane beside the existing driveway so vehicles park perpendicularly and back into the driveway rather than onto Route 9, and a handbook policy staggering drop-off and pick-up. The board raised washout on a reclaim surface, line of sight requirements of about 300 feet in each direction, and the absence of a Durham parking standard for daycares, citing ratios used in Lewiston and Ellsworth. Members said they would want the parking and access design from Acorn Engineering at site plan review.

8. 47:17
   Criterion 3: public safety impacts

   The applicant confirmed the backyard is fenced to state requirements and that children are not let out front. Thebarge said the fire chief would look at access to the rear of the building at site plan review and that the State Fire Marshal's office is also involved. A finding was added recording the fenced backyard.

9. 52:58
   Criteria 4 and 5: environmental impacts, scale and intensity of use

   Thebarge clarified there is no setback from the edge of the Resource Protection District, whose buffer for Dyer Brook extends onto the property, and the board agreed the site plan should show the RP zone. On scale, the board noted the addition is not visible from the road, the applicant does not plan signage, and screening between the parking area and the road would be worked out with the engineer.

10. 58:15
    Discussion of public comment procedure

    A member questioned taking written comment from people who are not abutters when no public hearing is being held. Thebarge said written comment is open to anyone affected, that the board may weigh abutter comment differently, and that the no-public-comment notice on agenda items serves both efficiency and the legal time limits for deciding applications.

11. 1:03:57
    Criteria 6 and 7: noise and hours, right title or interest

    Hours were stated as 7:00 a.m. to 4:30 p.m. with no change proposed, and the applicant declined to change the stated closing time to 4:45. The applicant owns the property.

12. 1:09:05
    Criterion 8: financial and technical ability

    Nash (?) said she is applying through Coastal Enterprises for a child care loan product, that her application goes to their group on July 25, and that she qualifies for a $30,000 grant funded from covid relief money for daycare infrastructure. She said the second part of the grant application requires the Fire Marshal permit and the conditional use permit, and that if the financing does not come through she will continue at 12 children.

13. 1:14:23
    Land use ordinance standards, conditions and final vote

    Thebarge clarified that the home-based business limits on vehicle trips and floor area do not apply because this is a conditional use for a daycare center, not a home-based business. The board adopted two conditions, that the project be built in accordance with the submitted plans and testimony and that the applicant apply for site plan review of the access, parking, lighting and landscaping, then granted conditional use approval. The board discussed whether the engineer's site plan could be submitted two weeks before the next meeting or would come in September.

14. 1:19:31
    Battery energy storage systems research

    George Thebarge reported that the new codification contract gave access to over 3,000 ordinances nationally, of which he identified several hundred dealing with battery energy storage. He summarised the typical ordinance framework, definitions, size tiers, location, setbacks, fencing, noise, lighting and decommissioning, and walked the board through the New York State interagency fire safety working group's recommendations, including industry-funded independent peer review, explosion controls, personnel response times, signage, monitoring and inspections.

15. 1:35:48
    Four options for Durham

    Thebarge outlined four responses: rely on the conditional use criteria as a de facto prohibition, subject to a legal opinion on whether that is defensible; adopt an outright prohibition; draft regulations; or adopt a temporary moratorium, which under state law runs six months and can be extended.

16. 1:41:07
    Board discussion of existing facilities and rural character

    Members discussed the facility being built in Gorham and two in Rumford, noting those are in industrial areas and that the communities involved had no standards in their ordinances. Rural character was raised as a concern alongside safety, and members suggested visiting the Rumford and Gorham sites.

17. 1:46:33
    Conservation Commission solar work and past inquiries

    Thebarge explained that the Conservation Commission will pick up its phase two study of where solar farms should and should not be located, including a possible mitigation fee system, because its open space plan grant application was not funded. He said the town has had inquiries in past years about both solar and battery energy storage.

18. 1:57:19
    How to take battery storage to the town

    Members discussed presenting options to the public, with an informational meeting suggested for September and a survey in October, working back from the need for an article ready for the April town meeting. It was noted that all the options, including a moratorium, require town meeting approval, and that a legal opinion on the conditional use route should be sought first.

19. 2:02:22
    July 24 meeting cancelled

    The July 24 workshop on battery storage ordinances was cancelled because no new applications were received by the deadline and a member who wanted to take part could not attend. The discussion was moved to the August agenda.

What was decided

• 10:16
  Approve the maintenance agreement for back lot access easement at 470 Auburn-Pownal Road, Map 9, Lot 26, with the condition that all deeds reference the maintenance agreement (moved by John Talbot, seconded by Marc Derr)passed
• 15:36
  Not to hold a public hearing on the daycare conditional use applicationpassed
• 26:05
  Finding that the applicant satisfied the burden of proof for the public health impacts criterion, with an added finding of a maximum of 24 people using the wellpassed
• 47:17
  Finding that the applicant satisfied the burden of proof for the traffic safety impacts criterionpassed
• 47:17
  Finding that the applicant satisfied the burden of proof for the public safety impacts criterion, with an added finding that the backyard is fencedpassed
• 52:58
  Finding that the applicant satisfied the burden of proof for the environmental impacts criterion, with the site plan to show the Resource Protection District; the transcript does not state the vote resultoutcome unclear
• 1:03:57
  Finding that the applicant satisfied the burden of proof for the scale and intensity of use criterionpassed
• 1:03:57
  Finding that the applicant satisfied the burden of proof for the noise and hours of operation criterionpassed
• 1:03:57
  Finding that the applicant satisfied the burden of proof for the right, title or interest criterionpassed
• 1:09:05
  Finding that the applicant satisfied the burden of proof for the financial and technical ability criterion; the transcript breaks off before the vote result is statedoutcome unclear
• 1:14:23
  Finding that the proposed conditional use meets the applicable criteria and design and performance standards of the land use ordinancepassed
• 1:14:23
  Attach two conditions of approval: construction in accordance with the submitted plans and testimony, and application for planning board site plan review of the detailed design of access, parking, lighting and landscapingpassed
• 1:14:23
  Grant conditional use approval for the expansion of Kids Next Door daycare, subject to the adopted conditions of approvalpassed
• 2:02:22
  Consensus of the members present to bring two of the four battery energy storage options to the public, an outright prohibition or a moratorium for in-depth study, while seeking a legal opinion on regulating these facilities through the conditional use criteriapassed
• 2:02:22
  Cancel the July 24 meeting and move the battery storage discussion to the August agendapassed
• 2:07:43
  Adjourn the meeting (moved by Allan Purinton, seconded by Marc Derr)passed

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_07_10_2024.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 maintenance agreement for back lot access easement at 470 Auburn-Pownal Road, Map 9, Lot 26 with the condition that there be a requirement that all Deeds reference the maintenance agreementcarried 4-0

  Moved by John Talbot, seconded by Marc Derr

• adjourn the meetingcarried 4-0

  Moved by Allan Purinton, seconded by Marc Derr

Worth knowing

• 20:40
  A written comment asked whether the daycare well must be treated as a public water supply, which would require a 400-foot separation from the septic system. George Thebarge said that classification applies at 25 or more people; the applicant stated a maximum of 24, being 20 children and four employees, and the board recorded that as a finding.
• 41:34
  George Thebarge cautioned the board that if it accepts less than adequate parking on the basis of the applicant's promises to stagger arrivals, enforcing that would be impossible, and that the application should be judged as if those controls were not in place.
• 58:15
  Allan Purinton objected that notification of a conditional use goes to abutters, that the written comment received was not from abutters, and that no public hearing was being held; he also said receiving public comment two hours before the meeting was disturbing. Thebarge replied that written comment is open to anyone affected and that the board may weigh abutter comment differently.
• 1:19:31
  Of the 21 most recently posted battery energy storage ordinances in the codification database, Thebarge said about 90 percent were moratoria, and he pointed to five major facility fires in New York State as the reason Durham should treat this differently from solar.

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: 4 passages of motion language, against 16 decisions summarised.

Elsewhere

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