Planning Board Meeting ~ August 7, 2024

2024-08-07 · Planning Board · 1:30:59 · watch on YouTube →

Regular Planning Board meeting on August 7, 2024, which opened after an audio failure and ran mostly as a working session. The board approved two sets of minutes with a correction to the spelling of Mark Derr's name, and voted to postpone the completeness review of phase two of the Bowie Hill subdivision to September 4 at the applicant's request. The bulk of the meeting was spent on battery energy storage systems, weighing an outright prohibition against a temporary moratorium; members concluded they do not have enough information to put a ban to the town and voted to recommend a moratorium instead. George, the town planner, will draft a memo for the September 4 meeting so the board can make a formal request to the select board at its first September meeting, which also puts the town's intent on the public record for the purposes of a retroactive moratorium. The meeting closed with scheduling and a discussion of getting the board's alternates to commit to attending.

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. 8:48
   Agenda amendments and minutes

   Meeting scheduling for the next few months was added to the end of the agenda. The minutes of June 5 and July 10 were approved together with a correction to the spelling of Mark Derr's name, which had been rendered wrongly wherever he moved or seconded.

2. 8:48
   Code officer's monthly report

   George (?) reported six new single-family homes built in Durham so far in 2024 and four accessory dwelling units added. He noted that 45 housing starts is the figure that would trigger a discussion of a moratorium and an update of the comprehensive plan, and the town is well short of it.

3. 8:48
   Land use codification

   George (?) said the contractor has delivered a new framework organising the ordinance into a standardised arrangement and will now carry out the legal review. The project moves the current PDF and paper ordinance into a digital format and scrubs the language for confusion and internal conflict.

4. 8:48
   Downtown vision project

   The select board has appointed a steering committee including architects, engineers and people with building experience. George is meeting Greater Portland Council of Governments staff in August to update the scope and timeframe, with the steering committee expected to convene in September.

5. 14:35
   What codification will and will not do

   George (?) said the contractor will identify issues that need policy decisions, including cell towers, solar farms, mobile home parks and gravel pits, and will reconcile provisions that conflict with state law, but will not write the town's policies. He said the mobile home park provisions date from around the early 1980s and no longer meet state requirements, and that the firm will supply examples from other towns rather than solutions.

6. 14:35
   Tracking accessory dwelling units

   A member asked whether accessory dwelling units are being tracked, noting four so far this year. George (?) confirmed they are not counted toward the 45 housing starts, and members agreed it is worth watching separately since the highest figure in the four years he has been monitoring was about 30 or 31. The code officer will keep including them in the report.

7. 14:35
   Codification timing

   George (?) said the contractor sees a chance of having the first reorganisation ready for the April 2025 town meeting, which would mean finishing in October and certainly by the end of the year. Members noted this is a reformatting rather than a set of policy changes, though it would still be voted at town meeting.

8. 20:22
   Mobile home park provisions and state law

   Asked whether meeting the newer mobile home standards raises a policy question, George (?) said an ordinance in contradiction of state law simply has to give way to the state law. He noted the town has one mobile home park and no pending applications, so coming into compliance now and revisiting later is straightforward.

9. 20:22
   Bowie Hill subdivision phase two, postponement

   The completeness review of the preliminary plan application for phase two of the Bowie Hill subdivision, Map 10 Lot 38, was postponed to the September 4 meeting. The applicant asked for the extension after seeing the staff report and draft incompleteness letter. Public comment was not taken.

10. 25:53
    Resource protection options

    George set out three options in the packet, with a town-wide map of the effect of each on the resource protection district and two detailed examples. He has identified about 50 buildings in resource protection that are now non-conforming and cannot be expanded without going to the boards; the state's recalibration of Beginning with Habitat 6+ data would pull about 18 of those out, leaving roughly 30 needing relief. Options include 100-foot and 250-foot buffers around existing buildings.

11. 25:53
    Working group wants select board direction

    George is presenting the same three options to the select board on the 13th. The majority of the working group felt option one, removing all areas identified by Beginning with Habitat from resource protection, goes beyond the mandate the select board set, which was to fix the inaccurate Beginning with Habitat 6+ data and give relief to homeowners whose buildings ended up in resource protection. George (?) said an earlier attempt to define a lot's developed area went to a formal vote last year and lost, which is why he sought an objective basis in the comprehensive plan.

12. 25:53
    Historic preservation

    The historic preservation committee is working with George, the town manager and the select board. The chair said it is premature for the planning board to discuss it in detail until there is something to present.

13. 31:39
    Solar farm siting

    George (?) said the Conservation Commission is developing criteria for where solar farms should be encouraged and discouraged, looking at power lines and gravel pits as potential sites and treating agricultural land as a particular concern. He said he has not been directly involved beyond supplying GIS layers. The chair described the expected path: workshop, public information meeting, select board direction, then a formal planning board public hearing.

14. 31:39
    Battery energy storage: the four options

    The board returned to the four options George had researched: a de facto prohibition using existing conditional use criteria, an express prohibition, drafting safety regulations, and a temporary moratorium. The chair said the board had been leaning toward a ban or a moratorium, and that there is no realistic way to write good safety standards before town meeting because the technology is still new.

15. 37:01
    Whether to put a ban to the town

    Juliet (?) questioned why an outright prohibition is on the table when the board lacks the information to justify one, noting these installations do not need water, can be small, and might suit a farmer, landowner or a CMP corridor. A member who had pushed for prohibition cited rural character, safety and water supply. The exchange became briefly pointed before members agreed the moratorium is the route and a prohibition could still be the outcome at the end of it.

16. 37:01
    How long a moratorium runs

    George (?) said a moratorium approved at town meeting runs six months and the select board can extend it a further six months, functioning as a de facto prohibition for at least a year while the town works. Members counted roughly 20 months between this meeting and an April 2026 town meeting at which an ordinance could be adopted.

17. 42:25
    Why the conditional use route was dropped

    George (?) explained that relying on existing conditional use criteria to deny an application would put the town at a disadvantage against applicants backed by corporate legal and expert resources, and would amount to declaring the board's bias on the public record before an application arrives. A member said the select board asked the board to look into this and little had been done so far, and that more research is needed.

18. 47:49
    Statutory basis for a moratorium

    Allan (?) read the statutory grounds, picking out overburdening of public facilities and existing ordinances being inadequate to prevent serious public harm. George agreed the issue meets the criteria for a moratorium but said the same grounds would not support a prohibition.

19. 47:49
    What the research would cover

    Members listed sources to work from: New York's fire group and draft local codes, Vermont, and Gorham's conditional use approval with its NFPA references. Work would involve the fire chief and the road commissioner and would identify environmentally sensitive areas to exclude, with Runaround Pond given as an example. Juliet (?) said Maine has little to draw on, since Gorham's site is in an industrial park beside a power plant and a new one in Lincoln is on an old paper mill, neither comparable to Durham.

20. 53:10
    Drafting the moratorium

    George (?) said MMA's fact sheets use a moratorium Durham itself adopted in the 1990s as one of two examples, so that can serve as the template. He would draft it and run it past MMA and the town attorney.

21. 53:10
    Goals of the moratorium period

    George (?) proposed spending the first six months on an objective assessment of costs and benefits rather than starting from opposition, including what the installations would be worth as taxable real estate against effects on rural character, safety and public services. He raised emergency response capacity in particular, saying rural volunteer firefighters should not be sent into an industrial accident without proper training or equipment. The second phase would be drafting whatever policy the select board directs.

22. 58:38
    Independent consultant and fiscal impact

    George (?) said most of the research available is industry or alternative-energy-policy driven and carries that bias, so the town might hire its own consultant to represent its interests. That would need money in the town budget and a town meeting vote, so members discussed two warrant questions. George illustrated fiscal impact analysis with a study from the early 1990s in which Freeport and Scarborough had the fastest tax increases despite commercial development, because increased valuation reduced school subsidy and revenue sharing, which in turn drove the use of tax increment financing.

23. 1:04:27
    Public participation and recruiting a working group

    Members agreed to run a public information process this autumn explaining the moratorium and what the town would do during it. Juliet (?) proposed advertising now for people with relevant professional expertise, engineers in particular, so a working group is ready to start as soon as town meeting approves the moratorium rather than the planning board carrying it alongside everything else. The chair supported starting in September with self-education on the New York, Vermont, Gorham and industry material.

24. 1:09:29
    Getting a cost estimate for a consultant

    The chair said a figure is needed soon because the town starts assembling its budget in December, and nobody could say whether it would be $5,000 or $30,000. George (?) suggested contacting planning firms, including one at Pineland, for a ballpark estimate and referrals. Members also discussed screening volunteers for actual knowledge rather than fixed opinions, with appointments made by the select board.

25. 1:09:29
    Retroactivity

    George (?) said MMA materials indicate a moratorium can be applied retroactively if the town has put its intent on the public record, because a developer then cannot claim it invested in reliance on the existing ordinance. Once a substantive review of an application begins, the applicant is generally grandfathered, so the public notice matters.

26. 1:15:05
    Putting the intent on the record

    Members discussed whether to go to the select board in late August or wait. The plan settled on was that George drafts a memo, the board reviews and endorses it at its September 4 meeting, and a formal report goes to the select board at its first September meeting, around September 10. Allan (?) argued for doing it formally and thoroughly because the record matters if the matter ever reaches court, citing an appeals board case where the timing of the town's actions was examined.

27. 1:15:05
    Motion on the moratorium

    A motion was made that the planning board has decided a moratorium is the way forward and will provide a formal request to the select board no later than its first September meeting, seeking endorsement of that proposal. Juliet (?) seconded. A member said he was voting for it on the basis that the board has 20 months to make the case to him.

28. 1:20:45
    Meeting schedule and quorum

    Members set out expected absences: one member out for November, another likely out in October. The chair noted a quorum is three but that anything approved with only three present must be unanimous under the board's rule, so at least four is preferred, and he will ask the alternates Tyler and Ann to cover October.

29. 1:20:45
    Upcoming applications

    October is expected to bring Bowie Hill, a Ruby Lane or Ruby Farms subdivision, and a daycare site plan review, roughly four items, with a similar load in November. Some of these may come in as early as September.

30. 1:26:20
    Alternates

    The chair said he will ask Tyler and Ann to commit to attending regularly, noting that alternates sit at the table and take part but cannot vote, and that attending the earlier phases of an application is what allows an alternate to vote on it later. Wednesdays have been difficult for Tyler because of travel to Boston. The board agreed to advertise for additional alternates on the town website.

What was decided

• 8:48
  Add scheduling of future meetings to the end of the agendapassed
• 8:48
  Accept the minutes of June 5 and July 10 with the correction of the spelling of Mark Derr's namepassed
• 20:22
  Postpone the completeness review of the preliminary plan application for phase two of the Bowie Hill subdivision, Map 10 Lot 38, to the September 4 meeting; recorded as 5-0passed
• 1:15:05
  The planning board will recommend a moratorium on battery energy storage systems and will ask the select board at its first September meeting for formal endorsement of that proposal; George to draft a memo for the board's September 4 meetingpassed

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

• 8:48
  Six new single-family homes and four accessory dwelling units have been recorded in Durham in 2024. The figure that would trigger a moratorium discussion and a comprehensive plan update is 45 housing starts, and George (?) said the highest in the four years he has been watching was about 30. Accessory dwelling units are not counted toward that figure.
• 25:53
  About 50 buildings sit in the resource protection district and are non-conforming, so their owners cannot expand without going before the boards. The state's recalibration of Beginning with Habitat data would take about 18 of them out, leaving roughly 30 for which the working group is still looking at relief.
• 37:01
  Members disagreed over whether to put an outright ban on battery storage to the town alongside a moratorium. Juliet (?) argued the board has no data to justify a ban and that asking the question now would only sort voters by prior opinion; the exchange became briefly pointed before the board settled on the moratorium.
• 1:09:29
  The board may ask town meeting for money to hire an independent consultant, and nobody could estimate whether that is $5,000 or $30,000. A figure is needed before the town starts assembling its budget in December, and it would be a second warrant question alongside the moratorium.

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 4 decisions summarised.

Elsewhere

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