Planning Board Meeting ~ March 1, 2017

2017-03-01 · Planning Board · 2:37:04 · watch on YouTube →

The Planning Board reorganised itself and then spent the rest of March 1, 2017 on Barry Baldwin's sketch plan for Mineral Springs Estates, a five-lot subdivision off Granite Hill Farm Road served by a new road he calls Spring Road. Ann Torgrosa (?) opened as vice chair, the board elected its first alternate to full membership, and, with chairman Todd having resigned and codes official Paul Baines having left, elected Mindy (?) as chair. Much of the discussion turned on Granite Hill Farm Road itself, a road the town discontinued in a way that reserved the abutters' rights, which Baldwin says was settled in 2012 as a road frontage road by agreement between the planning board, the town attorney and his own; the board had only minutes and letters to work from. The board then went through the completeness checklist item by item, marking a long list incomplete, and pressed hardest on item 36, the engineered street plan and profile, which Baldwin said had never been required in Durham for a subdivision this size. The board found the application incomplete and undertook to give him the list in writing; the next meeting is April 5 with materials due March 27.

What was discussed

1. 0:02
   Call to order and a new full member

   Ann Torgrosa (?) opened the meeting as vice chair, confirmed a quorum and led the pledge. The first business was to elect Juliet Kaplinger (?), who had been serving as first alternate, to full membership.

2. 0:02
   Resignations of the chair and the code officer

   Torgrosa (?) reported that Todd, the chair, had submitted his resignation, and thanked him for the practical view he brought and for a memory of the town's business that the board has now lost. She also thanked Paul Baines, the code officer, who has left and who she said brought a lot of order to the board.

3. 0:02
   Electing a chair

   Torgrosa declined to take the chair, saying she does not have the time and is not responsive enough to email to be fair to the board, and that the job needs someone organised who can work with Jill on agendas and Ruth on matters going forward. She nominated Mindy (?), who accepted on the condition, extracted in advance, that Torgrosa stay another year. The board then also took nominations for vice chair, on the basis that the election happens annually whether or not the seat is vacant.

4. 0:02
   Minutes of the February 1 meeting

   The minutes, prepared by Joe, were moved and seconded. Mike (?) said he had not been present and abstained.

5. 5:33
   The application introduced

   Barry Baldwin came forward with a five-lot subdivision off Granite Hill Farm Road, bringing extra copies of the plan so more than one person could look at it. He warned at once that the status of the access road had been fought over for years between the planning board, the town attorney and his own attorney.

6. 5:33
   What Granite Hill Farm Road is

   The road appears on the plan as Bowie Hill Road Extension, its old name, and runs from the intersection of Stackpole and Bowie Hill Roads. It is gravel and is not a town-accepted road. Baldwin explained that a road can be discontinued to the abutters, in which case it ceases to exist and the abutters own to the centre line, or discontinued in a way that reserves the rights of those inside, which is what happened here: the town abandoned maintenance but the way survives.

7. 10:53
   The 2012 consensus on road frontage

   Baldwin said the town attorney's letter described the road as discontinued as a public highway and remaining a private way subject to the abutters' use, and that the planning board of the day reached a consensus that it is a road frontage road under Durham's land use ordinance. He said he stopped the August 1, 2012 meeting to get that agreement stated on the record because minutes summarise rather than record, and pointed the board to the video. Members said they would need copies of all of it, and noted the attorney's letter says the road 'may' be a private way, which one member found ambiguous.

8. 10:53
   What Baldwin agreed to build

   He said he agreed to bring the road up to the town's private road standard, twenty feet wide with two-foot shoulders, except for the grade at one point where it crosses ledge over a pipeline and cannot be cut or blasted, which the board of the day accepted as a hardship. He has already built much of it. Asked in what context that agreement was made, he said it came out of a meeting he was told to bring as a back lot application, and that the board returned his application fee once it concluded it was not a back lot matter.

9. 16:18
   Who maintains the road

   There is no existing maintenance agreement and only one house is technically on the road now. Baldwin said the subdivision's road maintenance agreement will cover the whole length to Stackpole Road, because it is all the same right of way and the town will do nothing with it. The two existing residents must be offered the chance to join but cannot be made to. He has bought a plow truck with a wing and has agreed in the maintenance agreement to maintain the whole road for two years to give everyone time to find their feet.

10. 21:28
    The CMP corridor

    Central Maine Power bought a 400-foot strip in the 1940s that cut Baldwin's land in half; the company owns the land outright rather than holding an easement. The piece on the far side was given to his son and, being non-contiguous, became its own lot. Members and Baldwin worked through the map and lot numbers to establish which parcels are in the subdivision and which are not.

11. 26:51
    The 20-foot easement is not the access

    A member had found a 20-foot right of way in the deed for crossing CMP's line and asked whether the subdivision would be reached over it. Baldwin said no: that easement is a floating right, granted anywhere in the corridor that does not interfere with the transmission lines, so that CMP's purchase did not isolate him from his own land. Access is over Granite Hill Farm Road, the four-rod road, which CMP does not own and in which it has the same rights as anyone else.

12. 31:59
    Ownership of the roads and deeds

    Baldwin will retain fee simple ownership of the roads and grant lot owners a right of way, because he has more land up there and does not want buyers claiming ownership of the road. Members explained the usual arrangement: a proposed deed referencing a road maintenance agreement recorded separately. He does not yet have the agreement drafted, and was told it is one of the board's criteria.

13. 37:16
    Lot six and the abutter transfer

    Baldwin flagged a further complication: a parcel he has labelled lot six on Granite Hill Farm Road, about 22 acres of wetland by the brook with no buildable spot once the setbacks are taken. He wants to sell it to the man who bought lot one as an abutter, so it does not count as a lot, and asked the board to look at that now rather than at final plan. The plan will be noted as not buildable without returning to the planning board.

14. 37:16
    The driveway on lot one

    Brian suggested moving the driveway on lot one, which comes out at the bottom of an incline; a member had driven the road to look. Baldwin said he cannot direct it because the lot is already sold and the driveway is an old one to a former cabin, but agreed the safer approach is onto the new Spring Road and that at sketch plan stage things can be moved.

15. 47:42
    Where the application stands procedurally

    Normally a subdivision has a pre-application meeting with the code officer, who has just left. Baldwin said he had met Paul Baines before he went, has paid his $1,000 fee, notified abutters, and understands the step now is to work through the checklist noting what is done and what is missing. The board agreed to that, working from the submission requirements at page 74 of the ordinance.

16. 47:42
    History of the ownership

    Baldwin gave the board the history: he bought roughly 100 acres in his logging days, sold it keeping five acres, bought it back a year later with a partner, sold a lot on a promise to build the road that the partnership failed to keep, refunded the buyer when the partner would not, and bought that lot back under an LLC. He has since bought out the partner and holds the property through DIK LLC as sole owner, with other pieces under a second LLC and in his own name.

17. 52:46
    Contiguous ownership

    A member pressed on whether parcels held under the different names are contiguous, since subdivision law counts everything in contiguous ownership. Baldwin said his attorney and the code office had agreed the application could be brought in his own name as sole owner. The board did not resolve it, concluding that as long as the five-acre back parcel is not sold separately it need not be decided now.

18. 57:47
    A note on lot 8A

    The board settled the point with a note on the plan, on the model of the note on lot six: lot 8A will not be conveyed without further planning board approval, or the lots will be merged, whichever the applicant prefers. The subdivision was named as Mineral Springs Estates with the new road called Spring Road.

19. 57:47
    Working the checklist: the first items

    The board began the completeness list, with Ann keeping the record. The count of copies was held over until everything is in. The signed application was accepted, although it carries the applicant's signature and not the code officer's.

20. 1:02:53
    Abutter notices

    Baldwin produced return receipts for five of seven abutters. One family said the person who should sign is living in New Hampshire, and a second, the man who had just sold him land, had not returned his card. Members noted the ordinance requires the signed return, not merely proof of mailing, and asked Baldwin to submit a written waiver request and to re-send the two by ordinary mail so that they are at least in the mailbox.

21. 1:07:54
    Plan scale, names, dates and abutters

    The plan is drawn at 100 feet to the inch, within the ordinance limit, and carries the north arrow, graphic scale and date, the owner's and surveyor's details, and the abutting owners including CMP. Those items were marked complete. The sketch map showing the site's location in town and the boundaries of contiguous property under the applicant's control were also accepted.

22. 1:07:54
    Zoning boundaries and the boundary survey

    The plan does not show the zoning district boundaries, and resource protection runs along the stream through the property, so the plan must label both that and the rural residential remainder. Members noted the resource protection line has to be offset from the delineated wetland rather than drawn on the wetland itself. The boundary survey is present but neither stamped nor signed, so it too was marked incomplete.

23. 1:13:01
    Driveways and the hammerhead

    Driveways are shown as proposed and buyers will site them where they suit. One member's concern was driveways coming off the hammerhead turnaround, which he said has been allowed all over town and leaves plows filling people's driveways and headlights sweeping neighbours' yards. The item was accepted as complete.

24. 1:13:01
    Septic systems and test pits

    The subsurface disposal systems item was left incomplete pending a written waiver request, on the argument that a buyer sites the system with a site evaluator once the house position is known. A member questioned whether the effect should be looked at cumulatively across five or six houses all drilling wells and installing systems, and was answered that the offsets from neighbouring wells are handled by code at the design stage. The soil test pits were left incomplete: the surveyor was ready to do them when the snow started and will do them with the vernal pool work.

25. 1:18:04
    Natural features and landscaping

    Wetlands and drainage courses are shown and the whole site is wooded, so a tree line is the whole plan. The board later reworked this, taking the natural features item as complete and recording the vernal pools separately as incomplete since the delineation cannot be done until April. Landscaping, public areas, signs and exterior lighting were passed over as complete or not applicable; the trail on the plan was confirmed to be an old logging or twitch road rather than a snowmobile trail.

26. 1:23:24
    Wells

    Existing wells within 100 feet are shown from a state plan; proposed wells cannot be located until buyers decide where to build. The board left it incomplete for Baldwin to request a waiver in writing, on the same footing as the septic item.

27. 1:28:24
    Utilities and easements

    There is no utility plan. Members pressed the point that unless each deed conveys a utility easement over the road along with the right of way, a later lot owner could find CMP with no right to set poles. Baldwin said the easement is covered in the right of way and the proposed deed will say so; the board asked that a utility easement running up the road simply be shown on the plan, and marked the item incomplete.

28. 1:33:35
    Who pays to extend the power

    Power currently runs only to the boundary of the first lot, which Baldwin has paid CMP for and will excavate in the spring, underground and encased in concrete where the ledge stops him reaching three feet. Beyond that each buyer pays to extend it, which he put at something like $67,000 for a lot at the back, with later builders who tap in refunding part of it. Asked how a buyer of lot four would know they face a bill of ten or twenty thousand dollars, he said it would be prudent for a buyer to ask.

29. 1:38:45
    Contours and culverts

    The plan carries four-foot contours where the ordinance calls for two, so it was marked incomplete pending a written waiver request, with the observation that an engineer cannot draw a road profile from four-foot contours. Existing culverts are shown and proposed ones will come with the road design, so that item was left incomplete as overlapping with the street plan.

30. 1:43:59
    Habitat and natural areas

    The items on high or moderate value wildlife habitat and on critical natural areas were marked incomplete. The board asked for either an overlay on the plan from the state websites or a letter or surveyor's certification confirming there are none. The historic and archaeological item was complete, a letter already having been provided.

31. 1:43:59
    Item 36: the street plan

    The requirement is a plan view at no more than 1 inch to 50 feet with a profile at 1 inch to 5 feet, showing intersections, right of way and roadway limits, drainage structures and their relation to natural waterways, curve data, turning radii and centreline gradients. Baldwin argued the cross-section on his plan is what he builds to and that this has never been required in Durham for a subdivision of this size, calling on Jill's long memory of the board to support him.

32. 1:49:29
    The board holds the line on item 36

    Members answered that a cross-section shows the road one way across and gives no indication whether the culverts will carry the water or wash out, and that the board has to satisfy itself there is adequate access for emergency vehicles even on a private road. Told that things not done correctly in the past need not be repeated, and that he could request a waiver which the board may deny, Baldwin accepted the item as incomplete while saying he would bet money it had never been asked for before.

33. 1:49:29
    Baldwin's argument about tax base

    Baldwin made the case that the town needs building projects for its tax base, putting a new house at perhaps $4,000 a year in taxes, five houses at $20,000 a year and $200,000 over the ten years of a road project, roughly the cost of rebuilding a road. He argued paving requirements are an expense that limits people trying to do subdivisions, and asked that if the ordinance later changes his approval be allowed to change with it, which the board said might be a note on the plan if it is something they can lawfully do.

34. 1:54:56
    Deeds, covenants and the road agreement

    The most recent deed is in but the encumbrances item was left incomplete, partly because Baldwin realised a restriction against mobile homes he had mentioned to a buyer needs to be a covenant. Members drew the distinction between a road association and a road maintenance agreement, noting an agreement is hard to enforce without an association, and asked for the maintenance agreement, the covenants and a note that the road is to be retained by the developer in fee.

35. 2:00:20
    Water supply and fire protection

    The groundwater item was accepted on the strength of a state plan showing wells in the area, members observing there is no way to prove yield in advance and that the point of the report is to show the area is not already crowded with wells. The water volume item, including fire protection, was left incomplete: a subdivision cannot be more than a mile and a half from an approved water source, and Baldwin and the fire chief have measured it as within a mile and a half of a hydrant on Stackpole Road, but the board needs the chief's letter.

36. 2:05:20
    Cost estimates and financial capacity

    Baldwin said he owns his own excavation equipment and has already blasted and crushed gravel on site, and that he is funding the work from the sale of the first lot. The board asked for a cost estimate for the road and drainage, a construction schedule with start and completion dates, and a letter from his bank confirming funds on hand or a line of credit sufficient to meet the estimate. A member noted some towns instead condition approval so that no building permits issue until the road is built and inspected.

37. 2:10:52
    Storm water and erosion control

    The storm water management plan was agreed to be waived on a written request, since the impervious area is a small percentage of a fully forested site and only the road is being developed. The erosion and sedimentation control plan was left incomplete, to come with the road design showing silt fence and check dam locations and confirming the culverts will carry the water.

38. 2:16:03
    Traffic

    At about ten trips per lot the subdivision generates roughly fifty trips a day, well under the hundred that would trigger a traffic impact study. Rather than a formal submission the board agreed the estimate could go into the project summary, which can be the same letter as the waiver requests.

39. 2:16:03
    State permits

    The wetlands on the site were discussed as forested wetlands rather than regulated freshwater wetlands, and a member raised whether more than an acre of disturbed soil brings a permit into play. The board asked Baldwin to have his surveyor or the engineer designing the road obtain a letter from DEP, or cite the statute and any exemption, confirming what permits are or are not required.

40. 2:21:04
    Five lots or more

    Asked why he was keeping it to five lots, Baldwin said going over five brings state and federal regulation his surveyor tells him would require everything the board asked for that evening, which is what he was trying to avoid. Members suggested he check with his attorney and surveyor rather than go through the process twice, since if he is producing this material anyway a larger subdivision may not add much burden at the town level.

41. 2:26:06
    The 40-acre exemption

    Brian pointed out that under both the state and Durham definitions a lot over 40 acres need not count as a lot. Lot five is 41.54 acres, so on that reading the plan is four lots plus a remainder, and Baldwin could shrink lot five and take another lot while keeping more than 40 acres in reserve. The board said it did not matter for its purposes and left it for him to check.

42. 2:26:06
    Finding the application incomplete

    A motion was made that the application is incomplete and that the items discussed must be submitted. The board then confirmed there was no need to table it, that it must give the applicant a written decision, and that it has 30 days to consider.

43. 2:31:40
    The written list of deficiencies

    Baldwin asked for the incomplete list in writing, as the ordinance provides. Ann (?) offered to type it up rather than hand over handwritten notes, and to leave it at the office or email it to Jill. Baldwin said that with respect he was not trying to be difficult, but that every additional requirement costs him money and that the board members, like the road committee that inspects roads without engineers, are being asked to judge things they are not all qualified to judge.

44. 2:31:40
    Next meeting

    The next regular planning board meeting is Wednesday April 5 at the town office beginning at 7. All materials, including the waiver letters, the plan and the rest, must be in by 4:30 p.m. on Monday March 27 to get on that agenda.

What was decided

• 0:02
  Elect Juliet Kaplinger (?), the board's first alternate, to full membership. Moved and seconded; the chair called the vote and welcomed her aboard.passed
• 0:02
  Elect Mindy (?) as chair of the planning board, following Todd's resignation. Nominated by the vice chair and seconded, with the nominee accepting. The chair called the vote and then handed the seat over to her.passed
• 0:02
  Election of a vice chair, taken because the board elects officers annually whether or not the seat is vacant. The recording carries a nomination, a second and a call for those in favour and opposed, but does not make clear who was nominated or state the result.outcome unclear
• 0:02
  Accept the minutes of the February 1 meeting. Moved and seconded, with Mike abstaining because he had not been present. The recording carries the call for the vote and the abstention but no statement of the result.outcome unclear
• 57:47
  Require a note on the plan that lot 8A will not be conveyed without further planning board approval, or alternatively that the lots be merged, whichever the applicant prefers. Agreed in discussion, which also disposed of the question of whether the five-acre back parcel is part of the subdivision.passed
• 1:02:53
  Waive the requirement for signed abutter return receipts in respect of the two abutters who did not return their cards, on condition that Baldwin submit the waiver request in writing and re-send both notices by ordinary mail so they at least reach the mailbox.passed
• 1:49:29
  Reject the applicant's contention that the road cross-section on the plan satisfies item 36, the street plan requirement, and mark that item incomplete. The board said it needs a plan view and profile to judge whether the culverts will carry the water and whether emergency vehicles have adequate access, and told Baldwin he may request a waiver in writing which the board may deny.passed
• 1:49:29
  Baldwin asked that any approval carry a condition allowing his obligations to change if the ordinance later changes, particularly on paving. The board said it could be a note on the plan if the board chooses to accept it and if it is something they can lawfully do, and left the point unresolved pending that check.outcome unclear
• 2:10:52
  Waive the storm water management plan on a written request, on the ground that the impervious area is a small proportion of a fully forested site and only the road is being developed. The erosion and sedimentation control plan was left incomplete, to come with the road design.passed
• 2:16:03
  Accept a written estimate of vehicle trips in the applicant's project summary letter, at about ten trips per lot or roughly fifty a day, rather than requiring a separate submission or a traffic impact study, the threshold for which is a hundred trips a day.passed
• 2:26:06
  Leave open whether the plan is a five-lot or a six-lot subdivision and whether lot five, at 41.54 acres, falls under the 40-acre exemption so that it need not count as a lot. The board said it did not matter for its purposes at this stage and left the applicant to take it up with his surveyor and attorney.tabled
• 2:26:06
  Find that the application is incomplete and that the items discussed must be submitted. Moved and seconded; the recording carries the call for the vote and an audible aye but no count or declaration. The board then proceeded on that basis, confirming it need not table the application, that it must give the applicant a written decision, and that it has 30 days to consider.passed
• 2:31:40
  A motion to adjourn was made. The recording is interrupted by a question about getting onto next month's agenda, the chair asks twice for a second and is told 'no, I didn't yet', and no vote or result follows.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 planningminutes1march2017.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.

• name Juliet Caplinger as a full Membercarried 4-0

  Moved by John Simoneau, seconded by Michael Fitzpatrick

• Approve the February 1* 2017 Minutes as presentedcarried 4-0

  Moved by Mindy Woerter, seconded by Juliet Caplinger

• Adjourn at 9:00 p.mcarried

  Moved by John Simoneau, seconded by Mindy Woerter

Worth knowing

• 10:53
  The subdivision's access, Granite Hill Farm Road, is a road the town discontinued in a way that reserved the abutters' rights, so it survives as a private way that the town does not maintain. Baldwin says a consensus reached at the August 1, 2012 meeting among the planning board, the town attorney and his own attorney established it as a road frontage road under Durham's ordinance, and that he stopped that meeting to get it said on the record. The board has no written opinion in front of it, only minutes and letters, and a member noted the town attorney's letter says the road 'may' be a private way.
• 1:49:29
  The board required an engineered street plan with plan view and profile before it will call the application complete, so it can judge whether the culverts will carry the water and whether emergency vehicles can get in to residents on a private road. Baldwin, who has served on the planning board and as a selectman, said he would bet money this had never been asked of a five-lot subdivision in Durham. The answer he was given was that things not done correctly in the past do not have to be repeated, and that he may request a waiver which the board may deny.
• 1:33:35
  Power runs only as far as the first lot, which Baldwin has already paid CMP to serve. Each buyer beyond that pays to extend the line, which he put at something in the order of $67,000 for a lot at the back, with later builders who tap in refunding part of it to whoever paid. Asked how a buyer of lot four would know they face a bill of ten or twenty thousand dollars, Baldwin said it would be prudent for a buyer to ask.
• 1:49:29
  Baldwin argued the town should be encouraging this kind of development for the tax base, putting a new house at perhaps $4,000 a year in taxes, five houses at $20,000 a year and $200,000 over the ten years of a road project, roughly what it costs to rebuild a road in Durham. He said paving requirements are an expense that limits the people trying to do subdivisions, and asked that his approval be allowed to follow the ordinance if that requirement later changes.

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 13 decisions summarised.

Elsewhere

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