Planning Board ~ Public Informational Meeting ~ November 15, 2023

2023-11-15 · Planning Board · 1:24:35 · watch on YouTube →

An informal public information meeting held by the planning board on the housing land use article it intends to bring to the April 6 town meeting, in response to the state's LD 2003, whose implementation was pushed back to July 1, 2024. Town planner George set out the proposal: allow a second accessory apartment, each capped at 50 percent of the main dwelling's floor area, and where full-size units are added instead, require two acres of lot area per unit: six acres for three dwellings, which is the most the state law permits a town to require. No votes were taken beyond adjournment. The room split sharply: one resident argued repeatedly that the lot size increase defeats the point of a law passed to address a housing crisis and that the board had adopted a proposal handed to it by staff, while a select board member and board members defended it on grounds of rural character and the cost of municipal and school services. The board said it would take the comments back, particularly the unresolved question of whether each new unit gets its own driveway, before drafting the formal article.

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. 0:05
   Purpose and background

   The chair introduced the board members, town planner George and IT specialist Kim, who was filming on her own phone for posting to YouTube the following day. He explained that the state law, LD 2003, was passed in 2022 with a July 2023 effective date that the state pushed back to July 1, 2024, and that the affordable housing half of the law does not apply to Durham; the half that does is about increasing density.

2. 0:05
   How the board got here

   Work began in summer 2022 with a similar public meeting in October of that year, but when the state finally issued implementation guidance in January and February the board found the approach it had been on would not meet the rules, so it started over this summer. The board worked from the town's comprehensive plan, stayed inside the state's limited leeway, tried to keep the article simple, and had the Maine Municipal Association and the state office check whether what it plans would satisfy the law.

3. 5:30
   What happens next

   The draft article goes to the select board, comes back to the planning board, and then a formal public hearing must be held no more than 30 days and no less than seven days before the town meeting, so around the end of March. The vote is at town meeting on April 6, and the article has to be in the town report by about late February. A separate solar article is being developed with the Conservation Commission and will get a similar meeting.

4. 10:32
   What the state law requires on a vacant lot

   On any vacant lot the town must allow two dwelling units, either a duplex, which Durham already permits, or two standalone single family houses, which it does not. That is required at the current minimum lot size of 90,000 square feet, just over two acres. Nothing obliges an owner to build two units.

5. 10:32
   What the state law requires on a developed lot

   Where a single family dwelling already exists, the town must allow two additional full-size housing units, one attached and one detached or a combination, meaning at least three full-size units on the lot. The only restriction the town may add beyond what it applies to a single family dwelling is an increase in lot size. Durham currently requires 110,000 square feet, just over two and a half acres, for a duplex, so it is in substantial compliance with the intent but must allow full-size units and the attached or detached flexibility.

6. 10:32
   What the comprehensive plan says

   George ran through the plan's housing policies: maintain the existing housing stock, including by allowing accessory apartments for income; allow greater diversity of housing, noting that repeal of the Southwest Bend growth district removed the three and four unit multifamily option; recognise the increase in tiny homes; and adjust the duplex requirement so a duplex needs the straight two-acre minimum rather than two and a half, unless there is an objective reason for more.

7. 10:32
   The citizen survey

   The board ran a short survey asking whether people were concerned about children being unable to find housing locally, about retired parents being unable to move nearby, about the town growing too fast and taxes rising, and about the town's rural character. Respondents were more concerned than not about housing for family members but more concerned still about impacts on services and character. A fifth question asked whether the town's response should be less or more restrictive, and with neutral and less restrictive taken together the split was close to even across about 216 responses.

8. 16:33
   The planning board's proposal

   The proposal has two halves. Following the comprehensive plan, a second accessory apartment would be allowed, each no more than 50 percent of the floor area of the main dwelling, up to three housing units. Following the state law, where full-size units are added instead (a duplex plus a standalone single family on the same lot) two acres of lot area would be required per dwelling unit, so six acres for three units.

9. 16:33
   What happens if it does not pass

   George (?) said that if the article fails at town meeting the state law takes effect on July 1, 2024, allowing two standalone single family houses on two acres and a duplex plus a standalone at the current lot size, with no lot area increase. The chair added that whatever happens, septic still has to pass and setbacks still apply, though the state bars towns from adding parking requirements.

10. 16:33
    Objection to the process and the handout

    Nathan Leder (?) said builders and investors are not confused by the law, that the confusion came from putting a Durham spin on it, that the lot size increase was never proposed at the last public meeting, and that he had never been able to watch the board deliberate the proposal, which he said was handed to it by a town employee. He objected specifically to the handout printing the consequence of failure in red, arguing that steers a voter who knows nothing about the subject, and that the survey's 216 responses are about 5 percent of the 4,173 residents recorded in the 2020 census.

11. 22:05
    Response on the survey and the record

    Heather Roy (?) said she remembered attending a planning board workshop where the lot size increase was discussed, welcomed the point about neutral language, and observed that around 210 survey responses is very close to the number of people who actually turn out to vote at town meeting.

12. 22:05
    Why six acres

    Susan (?), of Pinkham Brook Road, asked where the six-acre figure came from and why not four or five, noting that not many people can afford six acres and that the law's intent was to make housing more accessible. George (?) explained the state permits a town to add up to the base lot size for each additional unit, which in Durham is two acres, so six acres is the maximum the town could require; it could require less.

13. 27:07
    Rural character and municipal impact

    A board member said six acres helps preserve rural character. Heather Roy pointed to the two survey questions where concern ran highest, arguing the restriction reflects a holistic view taking in the impact on the school and on municipal services rather than just the ability to add housing.

14. 27:07
    The housing crisis argument

    Nathan Leder (?) said the survey means nothing to him at 5 percent participation and that he could canvass door to door and change the numbers. He argued LD 2003 exists because Maine has a housing crisis and borrowing costs are high, and that going to six acres tells people who already own two and a half acre lots that they are out and Durham does not want to be part of the solution. He said he had been told he could do something on his three-acre lot and had been strung along for a year.

15. 32:14
    How the accessory apartment rule would work

    Answering Heather Roy, George (?) confirmed the 50 percent cap applies to each accessory apartment and is measured against the original approved main dwelling. Approval would be a code enforcement officer review where the limits are met; if a unit came out at, say, 52 percent because of an existing garage footprint, it would go to the planning board.

16. 32:14
    Driveways and taxation

    Asked whether each detached unit gets its own driveway across a two-acre lot's 300 feet of frontage, George (?) said there are no driveway limitations in the proposal. A board member said the driveway question had not been discussed before and would be a hardship for someone trying to use these options. On taxation, the assessor would assess on ownership, with a condominium arrangement possible in which each owner holds the footprint of a unit and the land in common.

17. 37:59
    911 addressing and private roads

    The code enforcement officer, Alan (?), pointed out that two houses served by one driveway requires a 911 address, which would mean naming it as a private road, and asked whether that would trigger subdivision review. It was left as a question to check, along with whether a common driveway needs private road approval.

18. 43:38
    When this becomes a subdivision

    Asked whether a private entity could buy a lot, build three houses and sell them off, George (?) said the law does not exempt anyone from subdivision requirements: creating three units within a five-year period means going to the planning board and meeting the subdivision standards. Members drew the distinction between adding an apartment for in-laws and building three units to sell, which is subdividing in substance.

19. 43:38
    Existing cluster subdivisions

    Durham's planned unit development provision is cluster development, letting subdivision lots shrink to one acre and 150 feet of frontage where open space is set aside. George (?) said the law expressly does not override private covenants, so a single family only covenant still controls in the subdivisions approved over the last 30 or 40 years. Where there is no covenant, he thought accessory apartments would be possible on a non-conforming lot subject to septic and well requirements, but said lawyers differ on whether that triggers an amended subdivision review and the law is not clear.

20. 49:04
    Whether buffering can be required

    Asked whether the town could require buffering around added units to protect rural character, George (?) said the law only permits standards that already apply to all single family dwellings. Durham's ordinance has no general buffering requirement beyond setbacks (buffering is addressed only in subdivision review) so imposing, say, a 50-foot buffer would be adding a spatial standard that does not apply to a single family dwelling, which is not allowed.

21. 49:04
    Frontage, grandfathered lots and commercial uses

    Kevin (?) asked about the 300 feet of road frontage required for any buildable lot. He was told a lot that does not meet it is buildable only if grandfathered in its 1976 configuration, that any newly created lot including a split needs 300 feet of frontage or an approved private road built to specification, and that any non-residential use still goes to the planning board. Residents with a particular lot in mind were urged to sit down with the planner or the code officer.

22. 54:36
    Who is answering the questions

    Nathan Leder (?) objected that every question was being directed to the town employee and said he wanted to hear from the elected officials and planning board members. The chair declined to discuss the resident's own lot in a public forum and asked him to take it up with the planner or the code officer.

23. 54:36
    Solid waste implications

    Heather Roy (?) raised the coming change to solid waste collection: Casella has told the select board it is moving to a mechanised system with two 64 gallon containers per household that must be spaced three feet apart for the truck's arm. Three units on a lot could mean six containers at the roadside, and a 12-house subdivision would mean 24. Whether Casella will enter private roads at all is unresolved, and members agreed the point needs to be considered rather than reacted to later.

24. 1:00:04
    One article, one vote

    Asked whether voters could choose between the two halves, the board confirmed they are a package: a single article, a single yes or no. If it fails, what applies is the state default shown at the bottom of the handout.

25. 1:05:08
    Defence of the process and of the survey

    A board member said the board does not decide arbitrarily, that the comprehensive plan is a guide rather than the enforceable document, and that the board has been discussing this for over a year. He noted about 150 people come to town meeting out of some 3,800 voters and encouraged people frustrated with the town to join a committee. On distribution, the survey was on the town website, raised at meetings, posted at the Get and Go and the town hall, and a member staffed a table for eight hours at the November 2022 election.

26. 1:05:08
    The comprehensive plan points the other way

    Nathan Leder (?) asked the board to go back to the slide, pointing out the comprehensive plan recommends amending the ordinance to allow duplexes on a standard two-acre lot: the opposite direction from the proposal. The chair replied the plan contains contradictions, calling both for increased housing availability and for maintaining rural character, and said the survey showed 57 percent favouring rural character, which is where the larger lot came from.

27. 1:10:09
    Is the comprehensive plan binding?

    Asked whether the plan is legally binding, George (?) said it is a guide, not a legal requirement. Heather Roy (?) added that it was voter approved and ordinance changes are supposed to be in line with it, and that the plan's recommendation carries the qualification 'unless there is an objective basis for requiring a larger' lot. She gave that basis as municipal impact (the town has grown, the school has grown, and Durham has no commercial tax base) and said no tax bill in town, even the highest, covers the cost of educating one child for a year.

28. 1:15:22
    Board members' closing comments

    Julia (?) said she would like to take the meeting's comments back and discuss them further. Tyler Hutchinson (?) said he personally favours more flexibility and would consider not voting for the board's own plan, but that it reflects 18 months of work and roughly where the input landed, and urged people on both sides to bring their neighbours out to vote, since turnout will decide it either way.

29. 1:15:22
    A builder's view on affordable housing

    A local builder said the whole conversation about affordable housing in Maine is a farce, because the codes make it impossible to build affordably, and that adding a lot size restriction to whatever relief the state offered reads as wanting the outcome and not wanting it at the same time.

30. 1:20:32
    Drafting questions and close

    Heather Roy (?) asked whether the article should refer to the buildable lot size generally rather than a fixed square footage, in case the town later changes the minimum; George (?) said the figure would have to be changed in more than one place in the ordinance. A member asked whether the board could accept duplexes on two acres while requiring a larger lot only for a third unit, and was reminded that a version along those lines had been considered earlier in the year and dropped as too complicated. The chair closed by asking for a motion to adjourn.

What was decided

• 1:15:22
  The board agreed to take the evening's comments back for further discussion and possible refinement of the proposal before drafting the formal article, singling out the driveway question as something better resolved now than later.passed
• 1:20:32
  The chair called for a motion to adjourn the informational meeting. The recording ends before any result is stated.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.

Worth knowing

• 16:33
  The proposal would require two acres of lot area for each dwelling unit, so six acres for three units: the maximum a town is permitted to require under the state law. If voters reject it on April 6, the state law takes effect on July 1, 2024 and the town gets no lot size increase at all, with two standalone houses allowed on two acres.
• 10:32
  The board's citizen survey drew about 216 responses and split close to evenly between a less restrictive and a more restrictive approach. A resident argued that is only about 5 percent of the town's 4,173 residents; a select board member replied it is close to the number who actually turn out to vote at town meeting, which one board member put at around 150.
• 5:30
  The timetable is tight: the article has to be in the town report by about late February, a formal public hearing must fall between 7 and 30 days before April 6, and the town vote is April 6.
• 49:04
  Two things the town cannot control under the law came out during questions. There is no limit on driveways, so each added unit could have its own across a two-acre lot's frontage, which the board conceded it had not discussed. And buffering cannot be required of these units unless it is required of every single family home, which Durham's ordinance does not do outside subdivision review.

Elsewhere

← 2023-11-01 Planning Board2023-12-06 Planning Board →All meetings