Planning Board Meeting ~ March 4, 2015

2015-03-04 · Planning Board · 2:10:39 · watch on YouTube →

The Planning Board met on March 4, 2015, elected Todd chairman and Ann vice chairman, and finished two applications. Earl's back lot application was approved after the board satisfied itself on the deed, lot sizing and right of way, contingent on the eventual transfer reserving an easement along the right of way for the town and both back lots. The board then spent most of the meeting on the third hearing of the Burnhams' conditional use application, where an abutter's attorney asked it to reconsider its January decision on soil seepage toward his client's well; the board declined, saying the request came too late under its own rules and that no request to hold the vote had been made in February. On the buffer, a landscape architect brought by the abutter argued the nine trees proposed were nowhere near enough, but the board interpreted the ordinance as requiring the pre-existing garage's use to be screened rather than the building itself, and approved the plan on condition that 14 trees be planted with tops at least ten feet from the ground, verified on site by the code officer. The board also recommended a change bringing the subdivision ordinance's road acceptance language into line with the land use ordinance, and discussed spending the $5,000 in its budget on a consultant to rewrite the town's ordinances.

What was discussed

1. 0:01
   Before the meeting: recruiting members and town meeting turnout

   Members talked about recruiting a prospective member who does planning work professionally and appears before the Brunswick planning board, and about needing a couple more alternates or associate members. They also compared town meeting turnout, putting Durham's at around 250 people out of close to 4,000 residents, and noted that without a school budget to enact the attendance drops off.

2. 5:07
   Call to order

   The chair called the meeting to order, led the Pledge of Allegiance and noted a good quorum.

3. 5:07
   Election of officers

   Officers were taken up before the minutes and agenda amendments. Todd was nominated for chairman and Ann for vice chairman, each seconded and put to a vote.

4. 5:07
   Request to reconsider the soil decision

   An attorney appearing for an abutter, Mr. Feldman (?), said his client only learned of the project on Christmas Eve 2014 and had not had time to get a soils expert. He now has a three-page soil scientist's report and asked the board to reconsider its decision on soil seepage from the garage toward his client's well. The chair said the request would be taken up with the application itself rather than as an agenda amendment.

5. 5:07
   Withdrawn application

   Ariel (?) withdrew her application for this meeting and will not attend, possibly returning next month. Later in the meeting members said her application was hazy and would need to be improved, and that she has an abutter adamantly opposed.

6. 10:07
   Back lot application: the deed

   Earl's (?) application returned for the deed showing the right of way. He explained that when he sold the two acres out front, the registry took that off his original 20-acre deed and would not issue a new deed for the remainder without a lawyer. The board wanted to see the deed he granted out, to confirm he had excepted and reserved the right of way, and found the grant in the paragraph following the excepting and reserving language.

7. 15:58
   Lot sizing and the right of way

   Members had checked the arithmetic and it worked this time. The right of way must be 300 feet in length and this one is 560; frontage must be at least 200 feet for at least 300 feet along the right of way, which the board checked by laying a card along the applicant's side of the right of way rather than the abutter's. The lot is 5.41 acres net, the plan showing the right of way's square footage separately, the surveyor's use of the word net meaning it is excluded.

8. 15:58
   Deeds for the remaining lots and the paving question

   The board noted the deed for the middle lot would have to include the right of way over the first lot and except and reserve the continuing right of way for the benefit of the back lot. Reading section 6.A.1.G, members concluded the paving requirement does not apply because this is a back lot rather than a subdivision, and that the plan's cross-section of a 50-foot-wide gravel road bed matches the ordinance apart from the pavement drawn in the ordinance version.

9. 20:59
   Easement for the town

   The recorded easement language covers all purposes including utility service connections, ingress and egress, and the right to alienate the rights without restriction. Members questioned whether the town should be named for sewer purposes, and concluded the applicant can assign the rights, as he had for CMP, so the town could be included. The code officer said he would not issue a building permit without that in place.

10. 20:59
    Recording the plan

    The board discussed whether the easement language should go in the notes on the mylar, which is what gets recorded, and settled on handling it through the deed instead. The mylar must go to the registry and be recorded, and the code officer will need the book and page before issuing a building permit; a stamped paper copy stays in the office.

11. 26:53
    Whether to reconsider the soil decision

    Members said Robert's Rules allow reconsideration only at the next session, which would have been February, and that the ordinance sets time constraints on reconsideration. They noted that nothing was raised in February, no request was made to delay the vote, and nobody said a soil scientist was working on a report. The board had already voted on the soil question in January after considerable discussion, leaving only the landscaping open.

12. 32:30
    The attorney's objection

    The attorney said the board had asked for documentation, he had obtained it, and it did not seem right that the board would not even look at it or evaluate it for what it was worth. Members replied that the approved plan complies with the code and that if the applicants violate an environmental ordinance or state law it becomes an enforcement issue the board cannot deal with here, and that the board bases decisions on what applicants put before it rather than investigating itself.

13. 32:30
    The Burnhams' planting list

    The Burnhams presented a Skillins plan of spruce, fir and hemlock, having dropped arborvitae on advice because of deer in the area. Five white spruce go beside the garage, chosen for fuller branching that will not thin out at the bottom, with hemlock added between the two properties. They offered to build a fence if that is what it takes, though a member said he does not like fences between neighbours.

14. 37:49
    Tree heights and timing

    The plan gives no heights because the Burnhams did not want to commit to ten-foot trees and find the nursery only had seven-foot ones. Planting would be as soon as possible, July or August rather than June, when the ground is still cold and wet.

15. 42:53
    The six-month requirement

    Members located the relevant provision, article 8 section 1 subsections F and G1, requiring buffer planting within six months of completion of any structure, that all buffer vegetation remain alive for at least a year from planting, and that the applicant guarantee replacement of anything that dies within that year. The code officer confirmed he would be checking. Members noted groundwater is close to the surface on the site but all three species tolerate it.

16. 42:53
    The abutter's landscape architect

    The abutter's side introduced David Truisell (?), who said he is a Maine licensed landscape architect working with Terry Dwan Associates in Yarmouth, and set up an easel with a plan he had prepared.

17. 48:00
    Aerial photographs of the clearing

    Truisell showed Google aerials from May 2012, September 2013 and September 2014, saying the cleared area grew from roughly two acres to roughly eight, and that most of the mixed evergreen cover along the property line was taken out. Asked whether the area was clearcut, he said a few trees remained but a good many were removed. The Burnhams said the images show they stayed well away from the property line and cut none of the abutter's trees.

18. 53:18
    What the ordinance means by screening

    Truisell (?) read the ordinance definition, that screening eliminates any view to humans standing at ground level of the residential use, with a later passage extending it to views from the windows of a two-story building. He took the Skillins plan, nine trees at 12 feet on centre over about 100 feet, drew a view shed from the corners of the abutter's residence to the garage and the areas used for parking and unloading, and found a gap of 20 to 30 feet on one side that no amount of tree height on the nine trees would close.

19. 58:27
    How much screening would be needed

    Truisell put the needed height at 20 to 25 feet to cover the gap and the number of trees at roughly 13 or 14, possibly with a berm, but said it would have to be confirmed by standing on the abutter's porch with a surveyor's rod. He said his section diagram used ten-foot contours from Maine GIS interpolated where necessary, not a site survey, and that he had had only since the 23rd to prepare it.

20. 1:03:39
    Whether a natural buffer already exists

    The abutter said he can see the garage from foundation to roof and that his house sits about eye level with the garage foundation, though the board noted Google mapping puts the garage foundation 11 feet lower. The Burnhams said large existing evergreens already cover the upper view and the new smaller trees were chosen to fill in below. Members concluded there is natural vegetation there but that it does not eliminate the view.

21. 1:03:39
    Growth rates

    Asked how fast the trees grow, Truisell (?) said eastern hemlock reaches 50 to 70 feet at roughly 12 to 18 inches a year, that larger stock grows more slowly at first, and that a 10-foot tree would take about ten years to reach 20 feet. A five-foot tree would take about 15 years to reach 20 feet.

22. 1:08:47
    The attorney's closing point

    The attorney said the ordinance requires the view be blocked from the second floor as well, and that it is the applicants' burden to demonstrate that nine trees of unstated height will do the job. He suggested the board could wait until a surveyor establishes what height is actually required.

23. 1:08:47
    What the Burnhams committed to

    Asked directly how tall the trees would be, the Burnhams (?) said the largest available and agreed to add four more trees at the end. The board pinned this down as ten feet to the top of the tree, achieved by tree height or by planting on a berm, and asked that the additional trees be marked on the plan.

24. 1:14:01
    Screening the use, not the building

    Ann (?) read the ordinance as saying no commercial building or use shall be established near a residential use without a screening buffer, and argued that since the garage has stood for several years what is being established is the use, so it is the use that must be screened. The code officer agreed with that interpretation. The Burnhams argued the first 50 feet would then be unnecessary because it screens their house rather than the garage, but members said the parking and vehicle movement area still falls within the view shed.

25. 1:14:01
    How much height the use needs

    The garage was put at about 27 feet, roughly 17 feet plus ten-foot trusses. Members reasoned that a flatbed cab is about 7 feet and a vehicle on the bed brings it to eight or nine, so around ten feet of screening covers the activity. Ann worked out that if 20 to 25 foot trees would screen to the 27-foot roofline, then trees of 10 to 12 and a half feet would screen about 13 and a half feet up the garage.

26. 1:24:09
    Verification on site

    Rather than a fourth hearing, members proposed making the permit conditional on the code officer going out with a surveyor's rod to confirm what height of planting screens ten feet at the garage. Truisell (?) said doing the shot himself would take a couple of hours and cost a couple of hundred dollars, and the abutter's side said the client would pay and asked to be present. Paul agreed to meet the abutter's representative on site, saying he expected mostly to be refereeing.

27. 1:29:19
    Framing the condition

    The chair said the application had already been held three months across three meetings, so the verification should be a condition of the permit rather than a reason to come back. The condition was drafted as 14 trees, tops no lower than ten feet whether achieved by tree or berm, sufficient to screen the garage area to a height of ten feet measured at the garage and parking area, with the trees full enough to do the job rather than sticks. The board noted the applicants could return if the site check showed more height was needed and they objected.

28. 1:34:29
    Final vote on the application

    After the buffer condition passed, the board took a final vote on the application as a whole, subject to the conditions discussed across all three meetings. One member abstained throughout because he had not been present for the earlier two meetings.

29. 1:39:37
    Money for ordinance work

    The code officer said he had been short of time to bring budget ideas forward because of the previous chairman's departure and Todd's arrival, and had asked the select board to put $5,000 in the planning board's budget for ordinance work; a member on the budget committee confirmed it made it through. He is pursuing two options: Nicole Briant, Bowdoinham's code enforcement officer and town planner, who has already condensed a similar ordinance and could possibly be hired for about five hours a week under an agreement with Bowdoinham, and Stephanie Carver at GPCOG, whose proposal was late.

30. 1:39:37
    How the rewrite would be staged

    The work would run in three phases, the first simply condensing the ordinance and removing overlap and inconsistency, which the code officer thought would cut close to a third of the text, aimed at the 2016 town meeting rather than this year's. Members said the ordinances are in dire shape, that the board cannot keep nickel-and-diming it month after month, and that this kind of work is structurally inappropriate to do in committee, having failed to get out of the definitions section.

31. 1:44:46
    Bowdoinham's ordinance as a model

    The code officer passed round Bowdoinham's ordinance, which covers land use, flood zone, subdivision and shoreland zone in one document and is available online. Members were struck that its back lot provision does in a few paragraphs what Durham's does at length, and said Durham's could be reduced to two or three paragraphs inserted into the land use ordinance while protecting the town the same way.

32. 1:49:48
    Shoreland zoning gap

    Durham has no shoreland ordinance, but anyone in the shoreland zone must still comply with state standards, which the code officer is required to enforce from the state statute and guidelines rather than a town ordinance, and he expects a shoreland permit this spring. He said the shoreland zone, forestry provisions and the new FEMA flood maps all have to be brought into the ordinance in the next year. Durham has no tidal shoreland, which makes the job cleaner than Bowdoinham's.

33. 1:49:48
    Provisions that could be removed

    The code officer said the electrical section could be eliminated because it already requires compliance with the current state-adopted National Electrical Code, and that the only Durham-specific difference is that the permit comes from him rather than the state inspector. He said much of the cable and communications material is unnecessary, and that the town has been in violation of its own solid waste ordinance for about 14 years because it requires the town to hire a named company it has not used in years.

34. 1:54:49
    Subdivision ordinance road acceptance

    The code officer brought a small change replacing paragraph 4 of the subdivision ordinance with the verbatim language from the land use ordinance, so the two documents match. The subdivision version appeared to let the road committee accept a road, where the land use version requires written unanimous approval of the road acceptance committee before a road can go to town vote, which state law requires anyway. Asked whether the board wanted the language to make sense or merely to be consistent, members agreed to make them consistent this year and address the substance next year.

35. 1:54:49
    Selling it at town meeting

    The article will go to the select board and, members expected, on to the town attorney Jack as part of the normal warrant review. The code officer said the planning board should attend the public hearings on the warrant article, since he is not from Durham and it is the board that has to sell the program.

36. 1:59:51
    How detailed the minutes should be

    A member raised that the board's minutes run seven, eight or nine pages and are more explicit than she is used to. Jill said she has cut back considerably and that where there is action on an application the criteria and approval run quickly. Members noted the minutes have to stand up if a decision ends up in court.

37. 2:04:59
    Findings of fact and conclusions of law

    Members said the board currently documents its decisions only through the minutes, and that on contentious matters it should consider issuing separate findings of fact and conclusions of law, which the town attorney had said are critical and must be specific to the application rather than general. The code officer said such findings should be typed line by line against the approval criteria and filed with the application as well as appearing in the minutes.

38. 2:04:59
    The review checklist and signing minutes

    A member noted the conditional use checklist is particular to the application and does not cover the general performance standards, which is why the buffer issue was not picked up until the abutter's first attorney raised it, and said the checklist needs amending. The code officer also suggested minutes be signed and dated by the members present when accepted, which one member questioned the need for given the board votes to accept them.

39. 2:10:03
    Minutes and adjournment

    The minutes had been mailed out the previous week. A motion to approve them as presented was made and seconded, with one member abstaining because he was not present at the meeting they cover. A motion to adjourn followed.

What was decided

• 5:07
  Nomination of Todd as chairman of the planning board; seconded and put to a vote of all those in favour. He accepted the nomination.passed
• 5:07
  Nomination of Ann as vice chairman of the planning board; seconded and put to a vote of all those in favour.passed
• 20:59
  Motion to find that the back lot application as presented meets the standards of the back lot ordinance and to approve Earl's (?) application, contingent on the eventual transfer complying with the remaining requirements, including excepting and reserving an easement along the right of way for the town as well as for both back lots; seconded and carried on a call for all in favour.passed
• 26:53
  The abutter's request that the board reconsider its January decision on soil seepage was refused. No motion to reconsider was made or voted on; members said the ordinance's time limits for reconsideration had passed, that nothing was raised at the February meeting and no request was made to hold the vote, and that the January decision had been based on the information the parties put before the board.failed
• 1:29:19
  Motion to find the buffer and landscaping plan approved on condition that 14 trees are planted; that the tops of the trees are no lower than 10 feet from the ground, as a minimum regardless of what the site check shows, whether achieved by tree height or by planting on a berm; and that the planting is sufficient to screen the garage area to a height of 10 feet measured at the garage and the parking area. Seconded and carried on a show of hands, with one member abstaining because he had not attended the previous two meetings.passed
• 1:29:19
  Board agreed the code officer would go on site with the abutter's representative to shoot the elevations between the screened activity and the abutter's yard and determine the height of buffering needed, as verification under the permit condition rather than as a further hearing. The abutter's side agreed to pay for the survey work and asked to be present.passed
• 1:34:29
  Motion to find the Burnhams' application approved subject to the conditions discussed across all three meetings; seconded and carried on a show of hands, with the same member abstaining.passed
• 1:39:37
  No vote was taken on hiring an ordinance consultant. The board agreed it should see at least two options before choosing, with Nicole Briant to be invited for an interview and a proposal still owed from Stephanie Carver at GPCOG, and that the first phase should be prepared for the 2016 town meeting.tabled
• 1:54:49
  Motion to recommend to the select board the changes to the subdivision ordinance summarised in the code officer's sheet, replacing paragraph 4 with the verbatim road acceptance language from the land use ordinance so the two documents are consistent; seconded and carried on a call for all in favour. Members acknowledged the language does not make good sense and agreed to fix the substance in a later year.passed
• 2:04:59
  Board agreed to hold a separate conversation at a later meeting about how it documents its decisions, whether through detailed minutes as now or through separate findings of fact and conclusions of law, and about amending the conditional use review checklist to cover the general performance standards.tabled
• 2:10:03
  Motion to approve the minutes as presented; seconded and put to a vote of all those in favour, with one member abstaining because he was not present at that meeting.passed
• 2:10:03
  Motion to adjourn; seconded. No vote is audible on the recording, which ends immediately afterwards.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 march_4th_2015.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.

• nominate Todd Beaulieu as Chairmancarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• nominate Anne Torregrossa as Vice Chairmancarried

  Moved by Todd Beaulieu, seconded by Michael Fitzpatrick

• find that the Application as presented this evening meets the the standards of the Back Lot Ordinance and Moves to Approve Mr. Crandall's Application contingent on the eventual transfer complying with the rest of the req…carried 4-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• find the buffer and landscaping plan as presented is adequate and the condition that fourteen trees are planted, with the tops of the trees are no lower than ten feet and that those trees are sufficient to screen the are…carried 3-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• find the Application becarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• Approve the Minutes as presentedcarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• approve the recommended changescarried 4-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• approve the recommended changes as presentedcarried 4-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• Adjourn at 9:10 p.mcarried

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

Worth knowing

• 32:30
  The board refused to look at the abutter's soil scientist report on the seepage question, saying the time for reconsideration had passed and that nothing had been raised at the February meeting. The attorney objected that the board had asked for documentation, he had produced it, and the board would not evaluate it; a member replied that the plan complies with the code and that contamination, if it happened, would become an enforcement matter.
• 1:14:01
  The board's reading of the buffer ordinance decided the outcome. Because the garage has stood for several years, members held that what is being established is the commercial use rather than the building, so only the vehicle activity needs screening. That cut the requirement from the 20 to 25 foot trees the abutter's landscape architect said would screen the 27-foot roofline down to about ten feet.
• 1:29:19
  Rather than hold a fourth hearing after three months, the board approved the plan on condition that 14 trees be planted with tops at least ten feet above the ground, by tree height or berm, and that the code officer verify on site with a surveyor's rod, with the abutter's representative present and the abutter's side paying for the survey work.
• 1:49:48
  The code officer described Durham's ordinances as needing outside help the board cannot provide: the town has no shoreland ordinance at all, so he enforces state standards directly, and the solid waste ordinance has been violated for roughly 14 years because it names a contractor the town has not used in years. The board has $5,000 in its budget to start a rewrite aimed at the 2016 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: 4 passages of motion language, against 12 decisions summarised.

Elsewhere

← 2015-02-04 Planning Board2015-04-01 Planning Board →All meetings