Planning Board Meeting ~ February 1, 2017

2017-02-01 · Planning Board · 1:55:58 · watch on YouTube →

A planning board meeting with no applications to decide, given over mostly to two residents seeking guidance and then to a long discussion of where the town's land use ordinance is heading. Kenneth Bailey learned that selling a second frontage lot from land he has owned less than five years would create a subdivision and require a full application, and Barry Baldwin asked to be put on the March 1 agenda for a five-lot subdivision. The code enforcement officer presented the growth figures he had given the select board: about 30 houses a year for 40 years, roughly 17.5 miles of rural road frontage consumed every decade, and the town ten to fifteen years from exhausting its available road frontage lots, after which only tax increases balance the budget. That opened an argument about whether the board can do ordinance work before the comprehensive plan is finished, whether the town should pay someone to rewrite the ordinance properly, and whether Durham needs a town planner. The board then went through Ann's redrafts of the sign and density sections and agreed to try to get a compiled draft to the select board the following Tuesday so it can reach the town meeting warrant.

What was discussed

1. 0:01
   Opening and who can vote

   The board established a quorum and said the pledge. Brian Lanoie introduced himself as the new member, and it was noted that his first meeting is also his first as a voting member and that the alternates were seated. Members worked out that five votes were needed and that not everyone present had attended the December meeting. Nobody had heard anything from Chip.

2. 0:01
   Minutes of December 7

   No changes were offered to the December 7 minutes and a motion to accept them was made and seconded.

3. 0:01
   Kenneth Bailey's land on Route 125

   Kenneth Bailey told the board he bought a 44-acre parcel on Route 125 almost exactly a year ago, gave a five-acre back lot to his son and his family to build on, and needs to sell one of two frontage lots he created in order to pay for the property and get out of debt, keeping the second frontage lot in his own ownership. He said he was not trying to create a subdivision and had come to find out which direction to take.

4. 5:04
   Why the gift exemption does not help him

   Ann (?) read the statute: a division of land by gift to a family member does not create a subdivision lot only where the donor has owned the parcel for a continuous period of five years immediately preceding the gift and the lot is not further divided or transferred within five years. Bailey has owned the 44 acres for a year, so while giving his son a lot has created two lots and no subdivision, selling the front lot would create a third and make it a subdivision. The separate exemption for a retained lot applies only to the owner's own residence, and he lives a couple of miles away.

5. 10:17
   What Bailey has to do next

   The board told him he has to bring a subdivision application before it, and the code enforcement officer arranged for him to come to the office in the morning to be set up with the paperwork. Bailey said he had come precisely so as not to do something he was not supposed to do and get into trouble.

6. 10:17
   Barry Baldwin's five-lot subdivision

   Barry Baldwin asked to be put on the agenda for the March 1 meeting for a five-lot subdivision on Granite Farm Hill Road, on a 100-acre lot from which he has already sold one lot. He asked for the checklist so his surveyor could make sure nothing was missed, and left six copies of the plans at the office as a courtesy, to be looked at by anyone who wanted them, with full copies to come with the application.

7. 10:17
   No public forum at the start of meetings

   Baldwin said he had thought the board still opened with a public forum. Members explained it had been done away with, partly because a single questioner could consume an hour of a meeting, though the ordinance still allows someone to come before the board on a subdivision provided they bring enough material to get through the process.

8. 15:18
   How much land is left to build on

   The code enforcement officer presented the same information he had given the select board. This year the town consumed the majority of its available subdivision lots; there are no new subdivisions coming forward and have not been for years because the ordinance is restrictive to them. That pushes growth pressure onto road frontage.

9. 21:04
   The arithmetic of frontage lots

   At the rate of about 30 houses a year sustained for 40 years, roughly 17.5 linear miles of rural road frontage is consumed by mailboxes and driveways every decade. On the parcel map, the dense areas run along the Freeport, Brunswick, Topsham and Lisbon side while the growth district in the centre of town has seen little growth. He put the town ten to fifteen years from consuming all its available road frontage lots, after which the only way to manage the town's finances is tax increases, since Durham has no high-value shore or lake frontage to subsidise it.

10. 21:04
    Why the pressure will increase

    The graph shows roughly 300 houses every ten years since I-295 was completed and Route 136 was widened in the mid-1970s, and that figure holds even though the housing recession that began in 2008 flattened much of the last decade. He expects 30 houses a year to become 40 or 50 given the pressure from the south. A member added that rising land values will also make subdivisions financially worthwhile for developers, and noted that two prospective subdividers had walked in that evening alone.

11. 21:04
    The growth cap may not be enforceable

    The provision restricting subdivisions to five lots in the rural district could be open to challenge, because the town has never done the administrative work the state growth act requires to have the right to use it to manage growth. The code enforcement officer said Maine Municipal Association's position is that the town should comply before it tries to enforce.

12. 26:19
    What people object to, and getting it through town meeting

    The code enforcement officer argued that the useful question is not that people oppose subdivision or business growth but what specifically they object to, because answering those concerns opens avenues to expand the tax base. He acknowledged some residents would accept tax rises of two or three thousand dollars a year for a decade or more to keep Durham as it is, and that whatever is done has to be inclusive enough to pass at town meeting.

13. 26:19
    Working before the comprehensive plan is done

    Members disagreed about sequencing. Some said ordinance changes cannot be made before the comprehensive plan is finished or at least clearly headed somewhere, because the ordinance has to match it. The code enforcement officer said the board should prepare itself by working out what it wants ordinance work to do, since the comprehensive plan is two years off and ordinance work another two to five years after that, which takes the town halfway to where he says it does not want to go.

14. 31:22
    The growth district

    The state did not certify the previous comprehensive plan partly because the growth district was not structured to relieve pressure on the rural area: the same lot size with 50 feet less frontage does not induce anyone to build in the growth district. With the housing pressure following the employment corridors towards Freeport, Topsham, Brunswick and Lisbon and almost nothing coming from the Auburn end, the question raised was whether the growth district is in the right place at all. Members noted it can only be moved by a town meeting vote.

15. 31:22
    What a house on road frontage costs the town

    The current ordinance allows about 34 houses per mile of road, which the code enforcement officer said cannot pay for the road: roughly $750 a year to maintain the road in front of one home against about $650 a year from that home's municipal share of the tax, a 22% annual shortfall before any other municipal service. One member said his taxes have doubled since he bought his house in 2009 and were told to expect them to double again in the next ten years.

16. 36:47
    Whether anyone could peer review the ordinance

    Asked whether a consultant could go through the ordinance and identify its weaknesses, Ann (?) said there is nobody in the state doing that well: AVCOG had been in before and was not helpful, she was not impressed by GPCOG, and a law professor's effort elsewhere was a joke, while the firms that do it properly bring in out-of-state consultants Durham cannot afford. She said the ordinance is in the state it is because the work is being done internally by volunteers in their spare time, none of whom can prioritise it over paying work.

17. 41:59
    Regional planning

    The code enforcement officer said he has raised regional planning with GPCOG, arguing that southern Maine cannot be planned town by town when the whole region is affected, and that with a large share of Durham working in Portland what Portland does affects Durham far more than the reverse. Regional planning at present is largely confined to the larger communities. A benefit would be coherent ordinances across town lines rather than a different set of rules every time you cross one.

18. 47:12
    Paying for it

    The board would have to petition the select board for money, and was told that will not happen this year because the budget process is too far along. GPCOG is in the process of being contracted to help with the comprehensive plan, but mainly for the data side, and when asked what support it could give at the next stage its representative did not engage with the question. A neighbouring town has hired GPCOG for most of its comprehensive plan rewrite; most small communities, members said, sit in their own room and do what they can, reluctant to ask town meeting for a substantial sum.

19. 52:37
    Why the ordinance is built the way it is

    Ann (?) said planners are good for ideas but should not write ordinances, that the town cannot afford a lawyer to do it and lawyers do not do this work, so effectively nobody does it well anywhere in the state. The code enforcement officer explained the model came from a shoreland zoning template produced by Maine DEP in the 1970s to control water pollution, which towns were then encouraged to extend across all their land use; in his view it has worked well for shoreland zoning and failed as a general land use model.

20. 52:37
    Workshops on tools to manage growth

    The suggestion members settled on was a workshop, or several, on the available tools: whether to encourage cluster subdivisions, use multiple zones, or use incentives, and how to push growth towards the areas the town wants it and away from the areas it does not. The board would learn the tools first, then take them to public meetings and to the comprehensive plan committee. The code enforcement officer also described the planner's role as an annual cycle of mining the data, checking it against where the town wants to go, and feeding adjustments back through town meeting each year.

21. 57:39
    Whether Durham needs a town planner

    Members said the town hall will have to grow as the community does and the difficulty is paying for it. The comprehensive plan from 14 years ago already identified a town planner or code officer as a necessary function. The code enforcement officer said nobody in town has been watching the data on growth and use for 15 years, that ordinances crafted to stop growth have exacerbated it, and that a low tax base and rural character cannot both survive a house every 300 feet. He noted Bowdoinham has a town planner and half of what he himself does is planner's work.

22. 1:02:43
    Rental and senior housing

    Asked whether pressure for apartments is coming, the code enforcement officer said Durham has almost none beyond accessory apartments and the condominiums off Pinkham Brook Road. He noted the state requires a town using a growth ordinance to provide for low-income housing and to file annual reports showing how. Members debated what rental housing brings the town against the municipal services it needs, and discussed 55-and-over housing as a way for residents whose income drops in retirement to sell up, stay in town near grandchildren and remain involved. One member asked whether a single over-55 development could consume the whole year's building permit cap.

23. 1:08:13
    What a growth ordinance is for

    The code enforcement officer put the question as whether the purpose is to restrict building or to manage growth, and said Durham's was written simply to stop people building. He said cut-off limits have not proved effective at keeping the town headed where it wants to be, since they did not do it over the last 15 years, and that it is time to look at what has not been working rather than putting it back through unchanged.

24. 1:08:13
    Timetable for getting the ordinance to town meeting

    The revisions have to go to the select board as a recommendation before they can reach the warrant. Members aimed at the following Tuesday's select board meeting, which means the planning board must vote to accept a compiled draft first. Nobody could recall the deadline for getting onto the warrant. Asked whether this was doable or should wait for next year, members said it was not an option to wait.

25. 1:08:13
    Waiving the permit fee after a fire

    One member asked to add a provision to the fees section exempting anyone whose principal residence burned down and who intends to rebuild from the building permit fee, though not from the permit itself, alongside the existing exemption for municipal and public education structures. He had put it to the select board, which agreed to fire but not to other natural disasters; members noted that a flood or hurricane could destroy many houses at once, which would be too much to absorb. The residential fee is 25 cents per square foot with a $100 minimum, and the language drafted at the table waives it for a permit to reconstruct a completely destroyed structure that was the applicant's primary residence where the application is submitted within one year of the fire.

26. 1:13:27
    The marijuana retail ban

    Todd had taken a request and a sample ordinance banning retail establishments to the select board, which appeared to take it under advisement and gave little feedback. Members noted three routes to town meeting: a select board recommendation, a public petition to the select board, or signatures gathered on the street, the number being a percentage of the turnout at the last election. Time is short for the petition route. A special town meeting was discussed as an alternative, with one recollection of a cost around $600 plus the staff labour that never appears on a cheque.

27. 1:18:31
    Why the ban has to be enacted now

    The code enforcement officer explained that with legalisation passed, towns may ban retail establishments but only by enacting an ordinance; if they do not and the state's licensing takes effect, anyone meeting the licence conditions could open in town. The state will not approve licences until February 2018, but Durham has only one regular town meeting before then. The ban would cover retail and some manufacturing, with medical and personal use falling outside it.

28. 1:23:39
    Getting a laptop onto the projector

    A stretch of the meeting was taken up with connecting a laptop to the projector, without Wi-Fi and with the wrong cable, before a draft could be displayed.

29. 1:28:42
    Sign ordinance rewrite

    Ann rewrote the sign section after the Supreme Court decision holding that sign rules cannot distinguish between signs based on their content: the working rule is that if you have to read the sign to apply the law, you cannot. The existing ordinance regulates directory signs, yard sale signs and the like. The draft keeps the prohibition on illumination and the height limit, caps signs at 24 square feet in total which may be split between up to two signs on the same lot, and applies to town road rights of way whatever rules the state statute sets for temporary signs in state road rights of way. It does not apply to flags or to signs erected or required by government bodies.

30. 1:39:32
    Density in rural residential

    Ann put the rural residential standards into a chart: minimum lot size per dwelling of 90,000 square feet, just over two acres, minimum road frontage of 300 feet, no more than a two-unit, with setbacks and structure height unchanged. She removed the structure coverage figure, which sat inconsistently alongside a lower impervious surface limit, and kept impervious surface alone, and carried forward the minimum building envelope of 40,000 square feet of buildable area from the current ordinance.

31. 1:39:32
    The density figure she could not express

    The board decided that one dwelling unit and two dwelling units both require 90,000 square feet, with additional square footage and road frontage only above two, which means it is not a density per unit even though density is normally expressed that way. Ann (?) said she has not worked out how to state it correctly. The related problem is definitions: the ordinance uses multifamily housing in one place, two-family in another and duplex in a third, and a dwelling, a dwelling unit and an accessory apartment all need distinguishing, with an accessory apartment possibly limited to a studio or one bedroom.

32. 1:44:43
    Conditional use criteria and performance standards

    The approval criteria and the performance standards are supposed to correspond and do not, and Ann has been trying to fix that. Taking undue air pollution as the example: the criterion itself cannot be waived, while the factors to be considered may be waived in writing on the applicant's written request. She questioned whether the waiver mechanism is needed at all, since the board only has to consider the factors rather than find each of them met, and noted that in practice the board has neither made findings on each sub-criterion nor issued written waivers, and no applicant has requested one.

33. 1:49:47
    Pieces that do not fit together

    Paul's landscaping and buffering language and John's road standards, which were pulled out of subdivision, performance standards and conditional use and gathered into one appendix, do not sit easily in the reorganised document. Members acknowledged the real problem is doing the work in bits and pieces months apart and forgetting what was decided in between. Ann (?) said one full day would let her finish it. Erosion control was still outstanding from Paul.

34. 1:49:47
    Sharing drafts and the next steps

    Someone (?) asked whether the board could use Dropbox to share drafts; the answer was that the documents are public records so sharing them is fine, provided board business is not conducted through it. The plan agreed was for Ann to compile the current work over the weekend and, if it is ready, for the board to hold a short meeting on Monday around the comprehensive plan meeting so it can vote to accept the draft and take it to the select board on Tuesday.

What was decided

• 0:01
  Motion to accept the minutes of the December 7 meeting, moved and seconded. The chair called for those in favour but the result is not audible on the recording, and the board moved straight on to the next item.outcome unclear
• 5:04
  Determined, on Ann's reading of the subdivision statute, that Kenneth Bailey cannot rely on the family gift exemption because he has owned the parcel less than five years, so selling a second frontage lot would create a third lot and a subdivision. He was told to file a subdivision application and to come to the office in the morning to be set up with the paperwork.passed
• 10:17
  Agreed to put Barry Baldwin's five-lot subdivision on the agenda for the March 1 meeting, with the application and checklist to be collected from the office and full plans submitted then.passed
• 1:08:13
  Agreed to include in the ordinance draft a waiver of the building permit fee, but not of the permit itself, for reconstruction of a completely destroyed structure that was the applicant's primary residence, where the application is made within one year of the fire. The select board had accepted fire but not other natural disasters.passed
• 1:49:47
  Agreed that Ann would compile the current drafting into one document over the weekend and, if it is ready, the board would hold a short meeting on Monday to vote to accept it, so that it can go to the select board on Tuesday as a recommendation in time for the town meeting warrant.passed
• 1:54:52
  Motion to adjourn, moved and seconded; the chair called for those in favour and the meeting ended.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 planningminutes1feb2017.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 December 7" 2016 Minutes as presentedcarried 3-0

  Moved by Mindy Woerter, seconded by Todd Beaulieu

• Adjourn at 9:00 p.mcarried

  Moved by John Simoneau, seconded by Mindy Woerter

Worth knowing

• 21:04
  The code enforcement officer put the town ten to fifteen years from consuming all its available road frontage lots. At about 30 houses a year, sustained for 40 years, roughly 17.5 miles of rural road frontage is taken up by driveways and mailboxes every decade, and once the frontage is gone the only lever left on the budget is the tax rate.
• 31:22
  A house on road frontage costs the town about $750 a year in road maintenance against roughly $650 a year from its municipal share of the tax, a 22% annual shortfall before any other service, and the ordinance allows only about 34 houses per mile. One member said his own taxes had doubled since 2009.
• 21:04
  The five-lot limit on rural district subdivisions may not be enforceable: the town has never done the administrative work the state growth act requires, including the annual reporting on low-income housing, and Maine Municipal Association's advice is to comply before attempting to enforce.
• 1:18:31
  The state will not issue marijuana retail licences until February 2018, but Durham has only one regular town meeting before then and the select board took the proposed ban under advisement without deciding. If no ordinance is enacted in time, anyone meeting the state licence conditions could open in town.

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: 1 passage of motion language, against 6 decisions summarised.

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