Planning Board Public Hearing ~ March 19, 2025

2025-03-19 · Planning Board · 1:04:06 · watch on YouTube →

The Planning Board held its required public hearing on March 19, 2025 on the land use articles going to the April 5 town meeting, with John Talbot in the chair and four members present. John Talbot set out at the start that the drafts were final, that nothing would change as a result of the hearing, and that the purpose was to explain the articles to residents before they vote. George Thebarge presented three articles: amendments to the resource protection district to match corrected state habitat data and give relief to owners of existing buildings; new standards for battery energy storage systems together with contract zoning for large energy projects, both carried on a single vote; and a rewrite of the town's historic preservation regulations recommended by the town attorney. No one spoke on the resource protection article; residents raised questions about combining battery storage with contract zoning, about contract zoning applying only to energy projects, and about who reviews and permits work on historic properties. The hearing closed with a reminder that the election is April 4 and town meeting is April 5 at 9 a.m. at Durham Community School.

What was discussed

1. 2:24
   Opening and ground rules

   John Talbot opened at 6:30 with a quorum of Allan Purinton, Brian Lanoie, Marc Derr and himself, noting Juliet Caplinger was excused. He explained the hearing is required to be held no more than 30 and no fewer than 7 days before town meeting, that the drafts at the back of the room are final and nothing said tonight will change them, and that the town's vote will decide them. Speakers were asked to give a name and address, direct questions to the chair, and keep to about three minutes, with four topics to cover in about two hours.

2. 7:39
   Article 19: resource protection amendments

   The article would amend the resource protection district to match the latest state data and give relief to owners of existing buildings in the district. George Thebarge said it comes from about a year's work by a working group of Conservation Commission and Planning Board members formed under the Select Board, reviewing new data from the Maine Department of Inland Fisheries and Wildlife alongside his own analysis of the effect on individual buildings. The zoning map was last updated in 2023 using the beginning with habitat programme, and property owners had raised concerns both about the accuracy of that data and about their ability to expand existing homes and businesses.

3. 7:39
   What the state data review found

   Inland Fisheries and Wildlife carried out a customised analysis of Durham's resource data and confirmed that the co-occurrence map overstated how much land in the town reached a rating of six or more co-occurring natural resources. The areas that no longer meet that threshold will be removed from the zoning map by the amendment.

4. 12:43
   Relief for existing buildings

   About 50 buildings were within the resource protection district; roughly 15 come out through the habitat correction, leaving about 30 still restricted from expanding simply by being partly in the district. For buildings there only because of the floodplain, such as those along the Androscoggin River and Royalsborough Road, and for buildings in forested wetlands, the amendment removes the area within 100 feet of the structure from the district, though federal flood requirements still apply. For stream buffers, treated as a more sensitive resource, the district boundary is pulled back from the building so an owner can expand to the sides or rear as long as they go no closer to the resource, and the same is done for the two buildings that intrude on the 250-foot buffer around the high value wading bird and waterfowl habitat off Snow Road.

5. 12:43
   Public hearing on article 19

   John Talbot opened the floor on the resource protection article and no one came forward. He closed the public hearing and asked the board for comments; there were none, and he noted the subject had been worked over for the previous six or seven months.

6. 18:47
   Article 20: battery storage and contract zoning

   The article would require contract zoning approval for large energy projects and enact safety and performance standards for commercial and industrial scale battery energy storage systems. John Talbot recalled that at a special town meeting in November the town approved a six-month moratorium to allow standards to be written. George Thebarge said the work extends the solar energy standards the town adopted last year after Conservation Commission research, and that contract zoning was recommended by the town attorney as a further tool.

7. 18:47
   Why the town acted

   George Thebarge described a five-acre, 175 megawatt battery energy storage project approved by the Gorham planning board and now under construction, connected to the grid rather than to solar, and said private interests had asked about siting one in Durham. He said such systems have a history of serious fires in other states, that New York appointed a task force on their safety and that its recommendations were used in the draft. Most significantly, the town attorney advised that utility scale battery storage meets the definition of essential services under Durham's current ordinance, so a project could be proposed anywhere along the power lines and the Planning Board could apply only its site plan review standards, not the conditional use criteria.

8. 24:13
   What the battery storage standards do

   The draft sets three tiers, for home, business and industrial scale, with all systems required to meet the latest testing and fire safety codes. A single container-sized unit outside a building would go through site plan review; more than one megawatt-hour unit falls into the third tier, which requires contract zoning and a town meeting vote. Home systems are exempt below a threshold of 70 kilowatt hours, about three battery packs, needing only to meet electrical code and safety requirements.

9. 24:13
   Fire department input and scale

   George Thebarge said the fire chief raised water for fire protection, pointing out that a hydrant may be unusable if the wind carries toxic gases towards it, so the draft requires redundant water sources and access to the facility from all four sides. It also requires screening where there may be visual impact and provides for decommissioning if a facility is abandoned. For scale, he said an average household uses about 30 kilowatt hours a day or 900 a month, and that a container unit of about 10 by 32 up to 40 feet holds roughly one megawatt hour, enough to power about 33 homes for a day.

10. 29:54
    How contract zoning would work

    Contract zoning would require any large scale energy project to go through a negotiated process ending in a town meeting vote, allowing the town to impose more restrictions than traditional zoning and to seek public benefits such as addressing gaps in fire department capacity. The Conservation Commission had been considering where large solar should be allowed, with a mined-out gravel pit an ideal location and prime agricultural land a poor one, and George Thebarge cited a 600-acre solar proposal in Greene. The Select Board's compromise was that a solar farm of 20 acres or more of development area goes to town meeting and anything smaller goes to the Planning Board. An applicant would put a proposal to staff, then file a formal application reviewed by the Select Board and Planning Board against the comprehensive plan, with a public hearing before the Select Board decides whether to put it to town meeting.

11. 29:54
    One vote for two things

    John Talbot stressed that battery storage standards and contract zoning are tied together in article 20, so a vote on the article is a vote on both. If someone supports one and not the other and votes no, neither passes.

12. 35:31
    Public comment on article 20

    A resident of Brookside Drive (?) asked what a yes vote actually does; the answer was that both contract zoning and the battery storage standards would become part of the land use ordinance, and that having standards in the ordinance does not mean a project would automatically be approved. Mike (?) of Runaround Pond Road (?) asked why the two were put in the same warrant article, saying it would be safer to separate them so that residents who dislike contract zoning but want battery storage standards are not left with neither. John Talbot said he was personally comfortable tying them, because the standards alone would be relatively easy for a developer to meet and the Planning Board is limited in what it can refuse, whereas contract zoning lets the town say no at any point.

13. 35:31
    Whether contract zoning should apply more widely

    Jess (?) confirmed with the board that contract zoning as drafted covers large scale solar as well as battery storage, and said she saw applying it only to those two as anti-solar and anti-renewable. She argued that if the town adopts contract zoning it should apply to other large development such as warehouses, new gravel pits or large subdivisions. John Talbot said this is a first step and that other types of development could potentially be added on a future warrant, but that it is a matter for the Select Board. He thanked Jess (?) and Michael (?) for their help on resource protection and on the battery and solar work.

14. 41:14
    Board comments and what happens if article 20 fails

    Allan Purinton said the value of contract zoning is that any large project is put in front of all the townspeople through the town meeting process rather than going only to the Planning Board, so nothing can be said to happen behind the scenes. Asked what would happen to battery storage if the article fails while the moratorium is running, John Talbot said the Select Board can extend the six-month moratorium by a further six months, giving about six or seven more months to work out why it failed and bring a plan B back to the town. He added that the standards alone give the town tools to work with a developer but not the ability to refuse, and that contract zoning also opens the possibility of tax payments from a large project.

15. 46:47
    Article 21: historic preservation

    The third article would bring Durham's historic preservation standards and process into line with state law and the comprehensive plan, on the recommendation of the town attorney and the Select Board rather than the Planning Board or Conservation Commission. George Thebarge said the Southwest Bend historic district was created around 2004 or 2005 and contains about 33 buildings, of which only three have been determined to be of official historic significance. Five further buildings outside the district, the Bliss Farm, the West Durham Methodist Church, the Osgood House on Royalsborough Road, the Friends Meeting House and Shiloh Temple, are covered by a de facto 1500-foot district, so any project within a quarter mile of them has to be reviewed for historic impact.

16. 46:47
    What the historic amendments would change

    George Thebarge said the town has no record of how the district was formed, no documentation of the historic surveys or public participation the ordinance requires, and that the town attorney has warned the regulations may not be enforceable if challenged. The amendments would eliminate the 1500-foot de facto districts, repeal the Southwest Bend district, and focus regulation on the eight officially designated historic buildings, with an advisory review by the historic commission for any commercial project or subdivision on an abutting property. The Historic District Commission would become an advisory body like the Conservation Commission rather than a regulatory one, with permits issued by the code officer and the Planning Board, and the standards would follow federal and state requirements.

17. 52:44
    Questions from the owner of the Nathaniel Osgood House

    The owner of 1731 Royalsborough Road, the Nathaniel Osgood House, which is on the National Register, and of the adjacent Brazilia Richards house, asked three questions: how a property is determined eligible by the Maine Historic Preservation Commission and whether there will be a list; who the reviewing authority and the permitting authority are, since an appeal lies only from the reviewing authority's decision; and whether the ordinance is meant to apply only to exteriors, saying in 50 years of historic preservation work he had never known an ordinance to reach the interior.

18. 58:44
    Answers on eligibility, authority and exteriors

    George Thebarge said eligibility is determined by the Maine Historic Preservation Commission on application, that the town or the historic commission could nominate a property but would not normally do so against an owner's wishes, and that the standards derive from a federal tax credit system aimed at commercial preservation, which is part of why they are difficult to apply as regulation and why there is no tax benefit for a purely residential property. On authority, he said the reviewing and permitting authority are typically the same body, the code officer for a building permit and the Planning Board for a conditional use, and that the two terms are a legal technicality; John Talbot agreed clarification would help and said it could be addressed in a later round rather than this year. The ordinance applies to exteriors only.

19. 58:44
    Close of the hearing

    John Talbot closed the public hearing and reminded those present that the election is April 4 at the Eureka Center and town meeting is April 5 at 9 a.m. at Durham Community School. A motion to adjourn was made and seconded.

What was decided

• 58:44
  Adjourn the public hearingpassed

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.

Worth knowing

• 18:47
  The town attorney advised that utility scale battery energy storage meets the definition of essential services under Durham's current ordinance, meaning a project could be proposed anywhere along the power lines and the Planning Board could apply only site plan review, not the conditional use criteria. That advice is what led to the six-month moratorium approved at the November special town meeting.
• 29:54
  Article 20 is a single vote on two things: the battery energy storage standards and contract zoning for large energy projects. A no vote defeats both. A resident asked for them to be separated so that opposition to contract zoning would not leave the town with no battery storage standards at all.
• 46:47
  The town has no record of how the Southwest Bend historic district was formed, and the town attorney has warned the historic regulations may not be enforceable as a result. Only three of the roughly 33 buildings in the district have been determined to be of official historic significance, and a 1500-foot buffer around five other buildings means any project within a quarter mile of them must be reviewed.
• 12:43
  About 50 buildings sit in the resource protection district. Roughly 15 come out through the correction to the state habitat data, and most of the rest are given either a 100-foot development buffer around the structure or a boundary pulled back from the building, so owners can expand without going to the Planning Board or Board of Appeals.

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 1 decision summarised.

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