Planning Board Meeting ~ May 3, 2023

2023-05-03 · Planning Board · 1:47:16 · watch on YouTube →

The Planning Board met on May 3, 2023 with John Talbot in the chair and four members present. Most of the meeting was given to two things: a proposed annual land use policy summit bringing together the Planning Board, Board of Appeals, Conservation Commission and Historic District Commission to agree what ordinance work the town takes on each year, and a working session on housing under the new state law, LD 2003. The board decided to direct the town planner to draft a hybrid ordinance that follows the comprehensive plan by allowing accessory apartments on existing lot sizes while requiring extra land for each additional standalone house, and to keep a minimum-compliance draft as a fallback if the hybrid fails at town meeting. The Deer Creek application was tabled to June 7 at the applicant's request while a Corps of Engineers permit is pending. Growth areas, rate of growth, and the choice between solar and cell tower work were held over to June, when the board hopes to hold the summit.

What was discussed

1. 0:10
   Roll call and minutes

   John Talbot opened the regular May 3 meeting and confirmed a quorum with Tyler Hutchison, Juliet Caplinger, Allan Purinton and himself, along with the town planner George Thebarge. The board took up the minutes of the April 5 meeting.

2. 0:10
   A land use policy summit instead of an ordinance committee

   George Thebarge reported that he and John Talbot had met the Select Board about forming an ordinance committee drawing members from the Planning Board, Board of Appeals, Conservation Commission and Historic District Commission. The Select Board had concerns about its own involvement, so the idea became a summit of those groups held once or twice a year to agree which ordinance issues to work on and who takes each one. He said the Select Board was clear that the Planning Board, not itself, should lead the process and decide what goes before it for town meeting warrants.

3. 5:19
   How the summit would work and the planner's time

   The board discussed a single meeting of the four chairs plus George Thebarge, with the town manager present at the first one so it is seen as a town initiative rather than a Planning Board one. Work would then be split, as it was last year when the Conservation Commission took on resource protection and the Planning Board took on affordable housing. George Thebarge said his limited hours are the binding constraint: he can do more when the groups are in agreement, but cannot afford to spend three or four months of research on work that then falls apart.

4. 10:36
   Setting the agenda for the summit

   A member raised the risk of a nebulous meeting that spends two hours on one topic by accident, and suggested circulating the topics in advance. George Thebarge suggested the Planning Board bring a list of issues as it understands them and ask the other groups what they think, rather than arriving with decisions already made. John Talbot gave affordable housing, solar and cell towers as the board's own candidate priorities.

5. 15:46
   Board of Appeals and resource protection follow-up

   George Thebarge gave an example of what the summit could settle: after the resource protection vote, one relief idea is to change the rule requiring a conditional use from the Planning Board to add 30% to a house and from the Board of Appeals at 50%. Because that sits in the Board of Appeals' part of the ordinance and the board has previously been uneasy about ruling on boundary questions, it would be asked directly, giving him clear direction to draft over the summer.

6. 15:46
   Keeping the Select Board informed

   Juliet Caplinger asked how the Select Board would be kept informed so that work does not reach it unexpectedly. John Talbot said he reports to the Select Board monthly and George Thebarge said he gives the town manager weekly reports of everything he is working on, which are passed on. The board agreed a short report would go to the Select Board after the summit setting out what each group would work on.

7. 21:38
   Comprehensive plans and state requirements

   A member relayed hearing that the state has been pressing towns that do not follow their comprehensive plans. George Thebarge said shoreland zoning and subdivision law apply whether or not a town has a plan, but that a certified comprehensive plan is required to adopt zoning, a rate of growth ordinance or impact fees, and that the concern being reported probably relates to the new affordable housing law rather than to comprehensive plans as such.

8. 21:38
   Deer Creek tabled

   The Deer Creek application had asked to be tabled again while waiting on a Corps of Engineers permit, with no detail on where it is or when it will come. The board voted to table it to the June 7 meeting.

9. 21:38
   Where the affordable housing law stands

   The board returned to housing, which it had postponed pending state guidance that has now been issued. Two bills were pending: one, given in the meeting as 665, would delay the law two years to July 1, 2025; another, given as 214, would delay it to October and exempt towns of 10,000 or fewer. John Talbot said neither may pass and that the legislature has perhaps six weeks if it wants to affect the July 1 start.

10. 27:22
    Whether to keep working while the law is uncertain

    George Thebarge argued for pushing on, saying his working year runs from town meeting through summer research, public participation from Labor Day to early December and a final leg to town meeting, so waiting for the legislative session to end would cost the research window. He noted a Durham resident had defended the town at a DECD hearing as one that has worked on this diligently while the state's timing undermined it. Members agreed to proceed, noting that if Durham ends up exempt it can still choose to act, and that until the town passes its own ordinance the state law applies anyway.

11. 32:35
    The comprehensive plan's housing recommendations

    George Thebarge took the board through the plan's housing recommendations: with the Southwest Bend growth district eliminated, considering three or four unit development under strict circumstances; recognising tiny homes, which state law already requires be allowed wherever a single family home is allowed; and removing what he called an arbitrary extra half acre required for a duplex. The board noted Durham has no definition of a tiny home in its own ordinance and currently just defers to state law.

12. 38:03
    What Durham allows now

    Under current zoning a two-acre lot allows a single family home plus one accessory apartment, for two units, with the accessory unit limited to 50% of the floor area of the main unit and permitted inside the house, attached, or in a standalone accessory building such as a barn or garage. A duplex requires two and a half acres. The board discussed whether the umbrella term should be affordable housing, as the state uses, or density, since Durham is not involved in the formal affordable housing project track.

13. 43:23
    What LD 2003 requires

    George Thebarge explained chapter 672 with the state's graphics. Outside a growth area, which is all of Durham, a vacant lot must be allowed up to two dwelling units, and a lot with at least one existing residential unit must be allowed two more, inside the structure, attached, or as standalone accessory structures, for a total of three. The DECD took 185 public comments from 35 to 40 entities including planning board chairs, town planners, code enforcement officers and select board members before finalising the rule, which takes effect July 1 unless delayed.

14. 49:21
    The three options and the citizen survey

    The options set out were: option one, the comprehensive plan approach limiting the additional units to accessory apartments so they fit the existing character; option two, minimum compliance with the state law without controlling design; and option three, requiring more lot area for additional full-size units, which the law permits provided the requirement for later units is not greater than for the first and is not applied to accessory apartments. The survey found concern both about housing diversity, with children unable to afford to stay and aging parents unable to move back, and about taxes and rural character, with an almost even split between those wanting the town to be less restrictive or neutral and those wanting it more restrictive.

15. 54:55
    Hybrid or minimum compliance

    George Thebarge put the question as whether to develop a hybrid, with all its complexity, or simply codify what the state requires. Members argued that a survey is not worth running if the answers are ignored, but also that a complicated proposal that fails at town meeting leaves the ordinance silent and the code enforcement officer interpreting the state law unaided. The board discussed drafting both, as it had done with two resource protection options, and letting the Select Board decide how many go on the warrant.

16. 1:00:08
    Shape of the hybrid

    John Talbot set out a hybrid in which an accessory apartment stays on the existing two acres because it uses an existing footprint, while each additional standalone single family house requires an extra acre, so three houses would need about four acres. Members confirmed that under current rules a second house cannot be put on the same lot at all; a separate lot must be created with two acres and 300 feet of road frontage, which is where back lots come in. George Thebarge noted the law does not permit requiring extra land for an accessory apartment.

17. 1:06:04
    Direction to the town planner

    Members said the extra acre might not satisfy residents who want much larger lots, and that the public information meeting in the autumn would test that. George Thebarge argued the hybrid answers both sets of survey concerns, allowing accessory apartments for those who want more housing while making standalone units more land-hungry. John Talbot said the direction to George Thebarge is to go forward with the hybrid, with the state minimum available as a fallback, and the other members agreed.

18. 1:11:39
    Points to clarify with the state

    George Thebarge said the state's guidance graphic and the rule language contradict each other on whether two units on a vacant lot must be attached, and that the guidance reads as though a lot with two existing units gets no additional units at all, not even an accessory one. He will clarify both with DECD and run each of the three models through the final rule. He noted the board could choose to allow three units on a vacant lot even though the law only requires two.

19. 1:16:52
    Subdivision review triggered at three units

    George Thebarge said the new law does not exempt anyone from subdivision review, and that creating three units, whether lots or dwellings, within a five-year period requires subdivision approval under both state and local law, putting a homeowner through the same submissions Deer Creek faced unless waivers are granted. State law allows a site plan review process to substitute where it covers the same ground, and some communities delegate minor projects to a staff review committee. Members gave the example of a buyer creating a basement apartment and one over the garage, which would be three units, and questioned what a full review would gain when nothing on the site has changed.

20. 1:22:19
    An expedited path for accessory apartments

    The board discussed writing an expedited process into the ordinance for accessory apartments or small residential units, with review by the code officer, planner and fire chief, and noted the objection that the public would then get no notice and it would not come to the Planning Board. An alternative discussed was a revised submission checklist so the third unit still comes to the board for subdivision approval but with far less to file. John Talbot said his recommendation is that units within existing footprints should not face a full six or eight month process, while a new standalone house should go through site plan review.

21. 1:28:03
    Driveways, access and whether units can be limited to rentals

    Members raised access as something the review should cover, since three houses on one parcel could mean several driveways, and noted the state will not allow multiple entrances on highways and the road commissioner is unlikely to on other roads. John Talbot raised whether the town can limit the additional units to rentals rather than allow them to be sold or turned into condominiums, saying a former Select Board member had raised it; George Thebarge said that needs input from legal counsel and the board should be prepared to answer it before the autumn public process.

22. 1:33:22
    Private covenants and subdivisions

    The board discussed whether subdivision applicants should be asked whether they will place private restrictions on their lots prohibiting the additional units, since if they will not, traffic and other impacts have to be assessed for the higher number. George Thebarge said septic and well limitations and the market are likely to preclude much of it in practice, and noted that cluster subdivisions going down to one acre could not take advantage of it.

23. 1:38:43
    Double dipping, growth areas and rate of growth

    George Thebarge said one of the state's clarifications is that an owner cannot both take the three-unit allowance and add an accessory apartment. He asked to hold the question of revisiting a growth area, raised by an absent member at an earlier meeting, and the related question of a rate of growth ordinance limiting permits per year, until the June meeting, where he has a presentation ready; the board agreed.

24. 1:38:43
    Solar and cell towers

    The board discussed which other topics to take to the summit. Members agreed solar is the higher priority because the code enforcement officer has raised it and expects applications, and that the Conservation Commission might take it on. On cell towers, the code enforcement officer is issuing permits for equipment added to existing towers with little guidance on co-location, and the board once reviewed a tower under conditional use with no standards, but no one is pressing to build new towers. George Thebarge said cell tower regulation is complicated, covering visual impact analysis, stealth designs and coverage analysis.

25. 1:44:34
    Scheduling the summit and adjournment

    The board aimed to hold the summit on the second Wednesday of June and to invite the chairs of the other groups, with John Talbot contacting them. Members were unsure who currently chairs the Conservation Commission. The board then adjourned.

What was decided

• 0:10
  Accept the minutes from the April 5, 2023 meeting as presented, moved by Tyler Hutchison and seconded by Juliet Caplingerpassed
• 21:38
  Table the Deer Creek application until the next Planning Board meeting on June 7, 2023, at the applicant's request while a Corps of Engineers permit is pending. Moved by Allan Purinton, seconded by Juliet Caplinger, carried 4-0passed
• 1:06:04
  Direct the town planner to develop the hybrid housing ordinance, allowing accessory apartments on existing lot sizes while requiring additional land for each further standalone house, keeping a minimum-compliance version as a fallback. Agreed by consensus rather than by a recorded votepassed
• 1:38:43
  Hold the revisiting of a growth area and a rate of growth ordinance over to the June meetingtabled
• 1:44:34
  Adjourn, moved by Juliet Caplinger and seconded by Tyler Hutchisonpassed

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 pbmeetingminutes5_03_23_0.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.

• accept the minutes from the April 5, 2023 meeting as presentedcarried 4-0

  Moved by Tyler Hutchison, seconded by Juliet Caplinger

• table the application until the next Planning Board meeting on June 7, 2023carried 4-0

  Moved by Allan Purinton, seconded by Juliet Caplinger

• adjourn the meetingcarried 4-0

  Moved by Juliet Caplinger, seconded by Tyler Hutchison

Worth knowing

• 21:38
  The state housing law takes effect July 1 unless the legislature delays it. Two bills were pending: one, given as 665, would push it to July 1, 2025, and another, given as 214, would delay it to October and exempt towns of 10,000 or fewer. The board decided to draft regardless, because until Durham amends its own ordinance the state law applies anyway.
• 43:23
  Under the new law, and because Durham has no growth areas, a vacant lot must be allowed up to two dwelling units and a lot with an existing home must be allowed two more, for a total of three. Durham currently allows one house plus one accessory apartment on two acres.
• 1:16:52
  Creating three units within a five-year period triggers subdivision review under both state and local law. As it stands that would put a homeowner adding two accessory apartments through the same process as the Deer Creek subdivision, unless the town provides waivers or an expedited site plan review.
• 49:21
  The town's survey found residents almost evenly split between wanting Durham to be less restrictive or neutral and wanting it more restrictive, with concern about children and aging parents being unable to live here set against concern about taxes and rural character.

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

Elsewhere

← 2023-04-05 Planning Board2023-06-07 Planning Board →All meetings