Planning Board Meeting ~ May 4, 2016

2016-05-04 · Planning Board · 2:39:20 · watch on YouTube →

A long planning board meeting dominated by the application of Pinkham Brook LLC to put a 195-foot lattice telecommunications tower on land off Route 125 and Pinkham Brook Road leased from the Friends meeting. The board found the application complete and then worked through every approval criterion and all nineteen conditional use performance standards one by one, voting on each proposed finding. It stuck on screening: the ordinance requires a commercial use within 1,000 feet of a residence to be screened so that nothing is visible from ground level or a second-storey window, which members concluded cannot be done with a 195-foot tower, and a motion was made and seconded to find that criterion not met before the board found a way through with conditions. The permit was ultimately approved with four conditions: a performance bond naming the town, a deed restriction against cutting the buffer, a row of balsam fir to screen the compound fence, and all other permits and licences before construction. Two fill questions also came up, one from Tom Kushman about topping up a parking lot under a 2009 conditional use permit, and one an after-the-fact application for fill taken from the DOT bridge job, which the board found incomplete.

No written minutes could be matched to this meeting. The transcript records that the speaker changed but never who was speaking, so any name attached to a statement below is inferred from context and is marked (?).

What was discussed

1. 0:52
   Before the meeting: comprehensive plan committee

   In conversation before the gavel, Paul (?) said eleven applications for the comprehensive plan committee were in with two more expected, though the select board had not yet made the appointments. He expected the committee to be seated soon, to spend its first sessions on officers, bylaws and format, then break for the summer and start in earnest with training.

2. 0:52
   Call to order and a new alternate

   The chair called the meeting to order, the board said the pledge, and Juliet Caplinger was welcomed as the board's new alternate member.

3. 6:06
   Tom Kushman's conditional use permit

   Paul (?) asked the board to determine, without an application in front of it, whether the development period on a conditional use permit issued to Tom Kushman in about 2009 for his business on Hallowell Road had expired. Kushman wants fill brought in to firm up the parking and wood lay-down area covered by that permit, which gets muddy in spring, and is not expanding it. The question mattered because the ordinance requires anything over 500 yards of fill to come before the board unless it is covered by an existing permit.

4. 11:15
   What the ordinance actually says about fill

   Members read the provision that a conditional use approval and any building permit expires if work has not commenced within 180 days or been substantially completed within 24 months, and the separate fill thresholds: up to 250 yards needs nothing, 251 to 500 yards is the code enforcement officer, and anything over 500 yards is the planning board. Members noted the ordinance sets no time frame on the 500 yards, so they could not say whether it is an annual or a lifetime figure, and that it appears to apply only to material brought in from off site.

5. 16:22
   What Kushman has to do

   With roughly 1,500 yards in view and nearly seven years since the permit, members said this is not an amendment to the conditional use but a fresh application for fill, requiring abutter notice and probably one meeting. The code enforcement officer had already told Kushman he could bring in the first 500 yards under his own approval. Members agreed the section needs clarifying in the next revision of the ordinance. No formal determination was voted, since the board had no application before it.

6. 16:22
   Pinkham Brook LLC tower: where the application stood

   Jim Seymour, a civil engineer with Sebago Technics representing Pinkham Brook LLC, said that at the previous meeting the application had been worked against the older ordinance by mistake, so he had gone back and responded to each performance standard under the new one. The proposal is a 195-foot tower off Route 125 and Pinkham Brook Road. He submitted the executed transfer of the lease giving Pinkham Brook LLC right, title and interest, and said the use falls under other commercial rather than industrial, which carries a 1,000-foot setback unless a buffer is provided; the applicant has provided a 100-foot buffer around the tower compound.

7. 21:34
   Other items from the last meeting

   Driveways have been added to the plan, the lease amended to show the 100-foot buffer, and an aerial photograph provided showing setbacks and the locations of houses. A highway entrance permit application has gone to Maine DOT and a copy was in the packet. Grant Austin of Sebago Technics was present to present the balloon test.

8. 21:34
   The performance bond argument

   A board member was not satisfied by the warranty language, which says duties, responsibilities and financial obligations shall be assigned rather than are assigned or accepted. The applicant pointed to a performance bond running to the landowner within the lease. The board member's objection was that such a bond protects the landowner, who has no obligation to the town and no duty to call on it, so it does not help the town enforce completion. The applicant offered to name the town as a third party, which members agreed would resolve it and could be imposed as a condition.

9. 26:44
   Working through the completeness checklist

   The board confirmed building locations, dimensions and ground elevations, intersecting roads and driveways, drainage courses, wetlands, stands of trees and the required buffer were all shown. Lighting had been incomplete and is now addressed: the only lights will be full cut-off outdoor lights on the shelters. An abutter on map 3, lot 87 was still shown as Don and Penny Williams and should be Kevin Nadeau (?). Backup generator fuel has been changed to propane, which the board said it would make a condition.

10. 26:44
    FAA and FCC approvals

    The applicant explained that the FAA review is about aircraft paths and lighting rather than a licence, that the FCC review including SHPO environmental work has been closed out, and that an antenna structure registration only comes when there is a user. The code enforcement officer pressed for a timeline, since satisfying conditions falls to his office and he needs to know when to expect documents. The answer settled on was that the material would come when the first user comes for a building permit for antennas, after the tower is erected.

11. 31:48
    Application found complete

    With the financial capacity question resolved by the bond, the board moved and voted to find the application complete and turned to the proposed findings prepared for it.

12. 37:12
    The balloon test

    Grant Austin (?) described floating a weather balloon of about six feet at 195 feet, the proposed height, and photographing it from the end of each driveway and right of way rather than trespassing on private property. In most of the photographs the top of the tower sits below the tree line, and the photographs were taken in April before any leaf-out. He identified the most open view as across from Collins Way, and said the Crawford residence on map 2, lot 29 sits high enough to have a view of it, particularly from an upper floor.

13. 37:12
    What will be cleared

    Asked how much vegetation would be removed, the applicant said none: the access road already exists from the logging operation and the tower would go on the cleared grass area where the logs were landed. Members drew out that the trees actually screening the site are outside the leased area and outside the 100-foot buffer the applicant controls, so nothing prevents them being logged again, since the rest of the property is in tree growth and could be taken out of it if the penalty were paid.

14. 42:14
    Skip Bordal's objection

    Skip Bordal, who lives across the road, said the tower sits only about 300 feet off the road and he will look at it from his own front door. The only trees partly blocking it are on his own property and are mostly hardwood, so bare for better than half the year, and he expects an adverse effect on his property value. He said he is not against the tower, having a cell phone himself, but would rather not look at it every day. The applicant measured about 650 feet from the tower to his house and noted the driveway was hooked rather than run straight in to reduce visibility from the public way.

15. 47:24
    Whether the tower could be moved or screened

    Members asked whether it could go further back or to the left. The answers were that further back runs into wet ground and into the large mature trees the parties had tried to avoid cutting, and that shifting left would clear the line for someone else. Sarah Sprogel (?), for the Friends meeting which owns the land, said their intention had been to set it as far back as they could and to be as protective of the neighbourhood as possible. A suggestion of planting fast-growing firs was raised; the applicant's position was to leave the buffer in its natural state and let it come back on its own.

16. 52:32
    Findings on water, air and soils

    The board took the proposed findings in order, voting on each: no undue water or air pollution, with the compound in crushed stone promoting infiltration and no emissions other than an emergency generator; sufficient water, the facility being unmanned with fire suppression built into the shelters; no unreasonable burden on an existing water supply, with sublessees required to use double-walled self-enclosed fuel tanks or propane; and no unreasonable soil erosion, the site being level and stabilised under the erosion and sedimentation plan.

17. 58:03
    Findings on traffic, sewage and solid waste

    Access uses the same driveway installed for the recent timber harvest, with a DOT entrance permit application submitted and service calls expected at one or two a month. No sewage disposal is required as the site is unmanned. Sublessees will remove any waste, so there is no burden on the town's solid waste or sewage services; the board adopted that finding with a wording change to make the second sentence read.

18. 1:03:24
    A deed restriction on the screening trees

    Because the screening relies on land outside the application with nothing to protect it, members proposed a negative easement or deed restriction preventing the vegetation between the tower and the road from being cut for as long as the tower stands. After working over the map they settled on the corridor running from the Crawford property line, perpendicular through the tower, down to the Bloomstein side line, on top of the existing 100-foot radius around the compound.

19. 1:08:51
    What the buffer will actually do

    Members and the applicant agreed that nothing planted now would help within a useful time: balsam fir would be the fastest grower and would take at least fifteen years to reach most of its height. The likelier improvement is canopy expansion from the trees left standing rather than understorey growth. On the ground level equipment, the compound is enclosed by a chain link fence with neutral coloured shelters set 300 feet back, and the tower itself is galvanised sky grey rather than painted, which the applicant said stands out less than white or blue and, being a lattice rather than a monopole, is partly see-through.

20. 1:13:51
    Findings on ordinance conformity and financial capacity

    The board deferred the criterion on conformity with the ordinances and comprehensive plan until it had worked through the separate conditional use performance standards. On financial and technical capacity it took the finding that Northern Pride Communications, which would build the tower, has twenty years of experience and more than 10,000 tower service projects, together with a letter of assignment and warranty to Pinkham Brook LLC.

21. 1:18:55
    Findings on water bodies, groundwater, floodplain and habitat

    The site is not within 250 feet of a pond, lake, stream or river, is not in a FEMA designated floodplain, and will remain mostly vegetated so groundwater quality and quantity stay as they are. A letter from Maine Inland Fisheries and Wildlife states no essential or fishery habitats are mapped in the affected area.

22. 1:18:55
    Lighting and the finding on noise and glare

    The tower is designed under 200 feet so aviation warning lights are not required, and the applicant said the FAA has already accepted that in the original filing. A member asked for that documentation and the board adopted the finding so long as there are no lights beyond those described in the application, meaning any additional lighting later required would bring the applicant back before the board.

23. 1:23:59
    Two sets of standards that were meant to match

    Having finished the approval criteria, the board discovered it still had to work through the nineteen conditional use performance standards, which cover much of the same ground as the general performance standards. Members were frustrated that this had not been fixed when the conditional use performance standards were rewritten and that material had been moved without the language being updated.

24. 1:29:38
    Performance standards on soils and erosion

    The board worked through air pollution, water quality, water supply and soils, the site being sandy loam on nearly level ground suitable for construction with limited erosion control. On erosion the plan showed a 12-inch culvert on the driveway; a member said the town is trying to standardise on 15 inches because 12-inch culverts have proved problematic, and the applicant agreed to the change, which was written into the motion.

25. 1:35:01
    Access and entrance

    The driveway is 12 feet wide with a three-inch finished course over 18 inches of gravel, with a turnaround at the gate, and sight distance of 720 feet west and over 900 feet east against a requirement of 425 feet for a 45 mph zone. On paving, the ordinance says commercial entrances may be required by the board to be paved rather than shall, and members accepted that the apron will be handled through the DOT entrance permit.

26. 1:40:02
    The screening standard the tower cannot meet

    The ordinance says no commercial use should be established within 1,000 feet of a residential use unless a landscape buffer strip visually screens it, and defines screening as eliminating any view from a person standing at ground level or from the windows of a two-storey building. Members observed the ordinance otherwise caps commercial structures at about 35 feet, so the standard was never written with a 195-foot tower in mind and cannot be met. They then found the waiver provision only allows the board to waive general performance standards, not the conditional use performance standards where this one now sits, which members put down to material having been moved without the wording being corrected.

27. 1:45:09
    Finding the criterion not met

    A member said she could not find the standard satisfied on the evidence and moved that it be found not met, adding that the board of appeals or a challenge to the ordinance itself were the applicant's routes. A site walk was discussed and rejected as unlikely to change anything, since a tower that size cannot be hidden. The board was then told that a waiver has to begin with a written request from the applicant, which the applicant made on the spot.

28. 1:55:47
    Screening the compound instead

    Members separated the tower, which cannot be screened, from the compound, which can. The applicant offered vinyl slats woven into the chain link fence, which members did not like the look of, and the board settled instead on a single row of balsam fir along the perimeter of the fence on the sides facing the residence and the public way, imposed as a condition.

29. 2:01:08
    Historical resources and the remaining standards

    No listed or pending historic sites were found, a request has gone to the Maine Historic Preservation Commission as part of the FCC review, and tribal responses reported no known burial sites; a cemetery on the same parcel is well over 750 feet from the construction. The board also adopted findings on natural resources, financial capacity backed by a TD Bank letter of March 22, 2016 evidencing a $400,000 line of credit, noise, odour, lighting, explosive materials, signage and educational services. On noise it struck a sentence claiming the emergency generator would be exempt from the standards, since the applicant's own evidence was that it would not reach the limits anyway.

30. 2:06:53
    Approval with four conditions

    Returning to the deferred criterion on conformity with the ordinances, the board added a condition that all other permits and licences be obtained, and then voted to approve the conditional use permit. The four conditions are a performance bond naming the town of Durham as beneficiary, a negative easement or deed restriction against cutting the buffer for as long as the tower is up, a row of balsam fir screening the fence and facility, and all necessary permits and licences before construction.

31. 2:12:20
    Getting the conditions onto the permit

    Members refused to sign the approval as drafted because the conditions were not written on it, and agreed the signed conditional use permit with the conditions on it would come back at the next meeting. The code enforcement officer told the applicant they would still need building and electrical permits from his office when antennas go up.

32. 2:17:27
    After-the-fact fill application

    The final applicant came before the board over fill taken from the DOT bridge job by a contractor and placed on his property without a permit. Paul (?) reported that fill going into a ravine had encroached on the 75-foot Natural Resources Protection Act buffer from a defined stream, though not the 25-foot, that it was caught in time, and that the contractor has pulled the slope back, hayed it and stabilised the site properly. There is a dispute of recollection about whether the DOT site supervisor approved the placement. No enforcement action has been taken by the town or DEP, and Paul (?) said the matter would be done if the DEP permit by rule is filed promptly; it had not yet been received.

33. 2:23:06
    How much fill and what comes next

    Nobody could say how much had been placed: the contractor said more than 500 yards and neither the owner nor the code enforcement officer, who came to the site afterwards, could confirm it. The owner said he now wants only to bring the ground level up for cow pasture, not to fill the ravine further, and would rely on roadside ditching material from Calvin, which at under 500 yards needs only the code officer.

34. 2:28:11
    Three applications in one

    The board worked out that the paperwork was really three things: an after-the-fact permit for what has been done, a permit for further filling on the same property, and a permit for filling at 662 Newbrook Road. The applicant withdrew the two forward-looking requests, which had been written in when fill from the bridge was still expected, leaving only the after-the-fact permit.

35. 2:33:18
    The after-the-fact application found incomplete

    With no abutter notification, no sketch and nothing to show what had happened where, the board found the application incomplete rather than tabling it. Members told the applicant they did not expect a survey and that he could request a waiver of the stamped plan requirement, but needed enough of a drawing to see what was done, when and where. He was told a notice of violation would follow if he did not come back with an application, and arranged to sit down with the code enforcement officer to work out what is needed.

36. 2:38:36
    Ordinance review

    The item on continuing the ordinance review and recommendations for next year's revisions was reached at half past nine and held over. Members said the working group needs to be started up again and that the waiver language, which they had argued about before and never fixed, needs to be made clearer.

What was decided

• 16:22
  Asked to determine whether the development period under Tom Kushman's 2009 conditional use permit had expired, the board made no formal determination, saying it had nothing before it to consider. The working answer given was that he may bring in up to 500 yards of fill under the code enforcement officer's approval and that anything beyond that requires a fresh application to the board defining how much he wants to bring in.outcome unclear
• 31:48
  Find the Pinkham Brook LLC tower application complete. Moved and seconded, with the financial capacity question to be handled by a condition requiring a performance bond.passed
• 52:32
  Adopt the proposed findings on approval criteria A through D, covering undue water and air pollution, sufficient water, burden on an existing water supply, and soil erosion. Each was moved, seconded and voted separately.passed
• 58:03
  Adopt the proposed findings on approval criteria E through G, covering highway congestion and safety, sewage disposal, and burden on municipal solid waste and sewage, the last with a wording change to the second sentence.passed
• 1:08:51
  Adopt the finding on approval criterion H, undue adverse effect on scenic or natural beauty, subject to a condition that Pinkham Brook LLC obtain a deed restriction or negative easement preventing the existing vegetated buffer from being cut for as long as the tower is standing, covering the corridor from the Crawford property line perpendicular through the tower to the Bloomstein side line.passed
• 1:13:51
  Defer the finding on approval criterion I, conformity with the subdivision ordinance, comprehensive plan and land use ordinance, until the board had worked through the separate conditional use performance standards. Moved and seconded.tabled
• 1:13:51
  Adopt the finding on approval criterion J, adequate financial and technical capacity, on condition that Pinkham Brook LLC obtain a performance bond naming the town of Durham as beneficiary.passed
• 1:18:55
  Adopt the findings on the remaining approval criteria: proximity to water bodies, groundwater, floodplain, wildlife habitat, noise and glare, and burden on municipal and educational services. The noise and glare finding was adopted only so long as there is no lighting beyond what the application describes, so that any additional lighting later required brings the applicant back to the board.passed
• 1:29:38
  Adopt the conditional use performance standard findings on air pollution, water quality, water supply, soils and soil erosion, the erosion finding amended to require a 15-inch culvert on the driveway in place of the 12-inch shown, which the applicant accepted.passed
• 1:45:09
  Moved and seconded to find that the screening and buffering performance standard was NOT met; that is, a motion that the project fails this standard, because the tower would not be fully screened from all residential uses within 1,000 feet, in particular the Crawford residence. The recording does not state the result of the vote. What followed was a discussion of whether the board could waive the standard at all, a written waiver request made on the spot by the applicant, and then a second motion taking a different route.outcome unclear
• 1:55:47
  Adopt the screening and buffering standard on condition that the applicant provide landscape buffering for the facility but not the tower, being a single row of balsam fir along the perimeter of the compound fence on the sides facing the residence and the public way. Moved and seconded, and the three voting members confirmed afterwards that this was what they had voted on.passed
• 2:01:08
  Adopt the remaining conditional use performance standards, covering historical and archaeological resources, natural resources, financial and technical capacity, noise, odour, lighting, explosive materials, signage and educational services. The noise finding was adopted with the sentence claiming the emergency generator would be exempt from the noise standards struck out.passed
• 2:06:53
  Approve the conditional use permit for the Pinkham Brook LLC telecommunications tower with four conditions: a performance bond naming the town of Durham as beneficiary; a negative easement or deed restriction preventing cutting of the vegetated buffer for the life of the tower; a row of balsam fir to screen the compound fence and facility; and all necessary permits and licences obtained before construction. The signed permit carrying the conditions is to come back to the board for signature at the next meeting.passed
• 2:28:11
  The fill applicant withdrew the two forward-looking parts of his application, for further filling on his own property and for filling at 662 Newbrook Road, leaving only the after-the-fact permit for fill already placed.passed
• 2:28:11
  Approval of the minutes, deferred from the start of the meeting to the end. Moved and the chair called for those in favour; the recording does not capture the result.outcome unclear
• 2:33:18
  Find the after-the-fact fill application incomplete rather than tabling it, so that the applicant returns with a sketch and the required notices, and with the DEP permit by rule filed in the meantime. Moved and seconded.passed
• 2:38:36
  Hold the ordinance review and the recommendations for next year's revisions over to next month, including fixing the waiver language so it is clear which standards the board may waive.tabled

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

• 1:40:02
  The ordinance requires a commercial use within 1,000 feet of a residence to be screened so that nothing is visible from ground level or from the windows of a two-storey house. Members concluded that is impossible for a 195-foot tower, since the ordinance otherwise caps commercial structures at about 35 feet, and found that the waiver clause only lets them waive general performance standards, not the conditional use ones where this standard sits. One member called it an impossible standard and said she wished it were worded differently.
• 42:14
  Skip Bordal, who lives across the road, told the board he will see the tower from his own front door, that the only trees blocking it are on his property and mostly hardwood so bare for more than half the year, and that he expects it to affect his property value. The trees that screen the site from the road are outside the leased area and in tree growth, so nothing prevented them being logged again until the board imposed a deed restriction.
• 2:06:53
  The permit was approved with four conditions: a performance bond naming the town of Durham as beneficiary, since a bond running only to the landowner gives the town no right to enforce completion; a deed restriction against cutting the buffer for the life of the tower; a row of balsam fir screening the compound fence; and all other permits and licences before construction.
• 2:17:27
  Fill taken from the DOT bridge job was placed on a property with no permit and encroached on the 75-foot Natural Resources Protection Act buffer from a defined stream, though not the 25-foot. The site has since been graded back, hayed and stabilised, and neither the town nor DEP has taken enforcement action provided the permit by rule application is filed promptly.

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: 5 passages of motion language, against 17 decisions summarised.

Elsewhere

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