Planning Board Meeting ~ Wednesday, July 13, 2022

2022-07-13 · Planning Board · 2:32:49 · watch on YouTube →

The planning board returned to the Deer Creek Crossing subdivision, first finishing the completeness review begun the month before and then holding the public hearing on the preliminary plan. The board voted 5-0 to find the application complete, with a note that the outstanding monumentation of the parcel corners will be handled as a condition of approval, which starts a 60-day statutory clock to decide the preliminary plan. Residents of the Timber Oak association raised missing and disputed boundary monuments, drainage onto an abutting property, and an unverified timber harvest, while two speakers pressed the board to require documentary proof rather than take the applicant at his word; one of them found the discharge of the town's court judgment recorded at the registry of deeds while the meeting was in progress. A conservation commission member argued the wetland delineation was done outside the growing season and should be redone, and objected to a stormwater feature shown in the resource protection area. The board did not vote on any of it: George Thebarge, the town planner, will draft preliminary approval conditions, including peer reviews of engineering, traffic, wetlands and forestry, for a vote at the August 3 meeting.

What was discussed

1. 3:22
   Quorum and minutes

   John Talbot counted Allan Purinton, Juliet Caplinger, Ron Williams, Wesley Grover and himself, five members and a quorum. There were no amendments to the agenda and no changes offered to the minutes of the June 1, 2022 meeting.

2. 3:22
   Resource protection district revisions

   George Thebarge met the conservation commission on May 26 about the resource protection district. The work is in two parts: correcting errors in the existing district that rest on outdated information and inaccurate mapping, and then looking at adding areas outside it that meet the same comprehensive plan criteria. The select board has approved putting the split onto the next town meeting warrant, and the Greater Portland Council of Governments has been asked about running a citizen survey on the town website. He has built a database of affected properties: 480 of the town's roughly 2,000 parcels, of which 360 owners were already written to for part one and another 120 would be affected by part two. Informational meetings are planned right after Labor Day.

3. 3:22
   Coordinating the land use tracks

   George Thebarge is also working with the historic district commission on an overhaul of its programme, preparing a report explaining the background and planning public informational meetings. He suggested coordinating that with the conservation commission's work and the planning board's, since all three are heading for the same town meeting.

4. 3:22
   What the board decided to work on

   At its June 8 workshop the board decided to concentrate on the new state affordable housing law, which requires density zoning changes in Durham, and to take another crack at back lot driveways so a single house does not require building a road.

5. 3:22
   Road acceptance at town meeting

   John Talbot reported that when he went before the select board in May they asked the board to consider language stating that acceptance of a private road can happen only at town meeting, so it is clear that neither the selectmen nor the planning board accept roads. He said it came up as a hot button at town meeting and that at present there is no road acceptance policy at all. The wider roads question remains tabled.

6. 9:08
   Public comment on other matters

   The chair opened the floor to residents wanting to raise planning issues other than Deer Creek Crossing, which had its own hearing later on the agenda. No one spoke.

7. 9:08
   Where the completeness review stood

   George Thebarge reviewed the June 1 letter of incomplete application, which listed seven deficiencies. The applicant had submitted an updated location map, test pits for all lots, a new aerial photo overlay showing vegetative cover, the location of the 36-inch culvert under Hallowell Road, and a new plan showing the floodplain where the brook enters the property. Two items were outstanding: monumentation of the parcel corners under section 6.7 C3, and documentation of the prior owner's court judgment as a possible encumbrance. He had offered the applicant three routes on those two: provide the documentation, argue they are not germane to the substantive review and could be waived, or propose preliminary approval conditions that ensure they are addressed at final plan review.

8. 14:39
   The culverts and the logging crossing

   There is one 36-inch culvert where the brook crosses the road, and a 15-inch culvert at a temporary logging crossing that appears in the application and as a demolition note but not on the site layout. The undersized logging culvert flooded the ground above it and much of the wetland on that side is a byproduct of it; taking it out will restore and effectively increase the wetland. The applicant said the stormwater quantity report shows runoff leaving the site will not increase, so the downstream 36-inch culvert does not need upsizing.

9. 20:13
   The unmonumented corner

   The survey calls out a pin, rod or iron at each corner of the parcel being subdivided except one, where a fence and a stone wall diverge; the surveyor took the more conservative of the two lines, following the fence, so the subdivision claims less land than it might. Members noted that anyone challenging that line would be arguing for more land in the subdivision, not less.

10. 20:13
    Whether the monumentation can be waived

    Members established that the ordinance's waiver section does not list surveying, so the requirement is not waivable, and agreed not to try. The practical answer was to make it a preliminary approval condition, since the surveyor would pin the road centre line and all the lot corners at once as soon as approvals are in place. George Thebarge added that documentation of individual lots is typically a condition of final approval, and that the building inspector must confirm pins before issuing a permit.

11. 26:17
    Completeness versus substantive review

    George Thebarge drew the distinction that mattered: the question tonight is only whether there is enough information for the board to conduct a substantive review. The applicant has submitted a survey plan meeting the ordinance's submission requirement even though one corner is not yet monumented, so the board can find it complete and still deny the subdivision later on the ground that the monuments the ordinance requires are absent.

12. 26:17
    Vegetative cover and clearing limits

    Wesley Grover pressed on what the plan shows of existing tree cover. The legend still refers to an approximate edge of tree line that has been replaced by an aerial photograph, which members asked be tidied up. The ordinance requires vegetative cover type and acreage, and separately the area on each lot where existing forest cover will be removed and converted to lawn or structures, which is shown in the hatched clearing areas; none of the lots showed more than about 18,000 square feet of clearing.

13. 26:17
    The court judgment against the prior owner

    George Thebarge said the town manager told him the select board has received the payment of the fine ordered by the court and is satisfied the site has been substantially cleared, but that these matters normally go back to court for a summary judgment recorded against the title. The applicant said his own deed search found nothing and that a title search by First American Title Insurance Company dated June 14, 2022, included in the packet, came back clean, showing only an outstanding mortgage and rights and easements granted to Central Maine Power. On that basis members concluded there was no recorded encumbrance.

14. 37:27
    Vote on completeness

    Ron Williams moved to find the application complete, with a note added that the additional monumentation of the corners would be dealt with as a condition of approval, the level at which it must be done to be settled later. The board voted by raised hand.

15. 37:27
    How the public hearing would be run

    George Thebarge set out the procedure from the board's 2006 bylaws: the hearing had been posted and advertised, the chairman presides and may rule testimony irrelevant subject to a board member moving to admit it, and he may set reasonable time limits. The order would be public testimony, then the applicant's response, then one rebuttal from members of the public who had spoken, then the hearing closes and the board deliberates, still able to ask questions of anyone.

16. 42:39
    What the board is and is not deciding

    George Thebarge said the focus is whether the application complies with the ordinance, not town growth management policy, which is set at town meeting, and that the board is required by law to follow the ordinance whether it agrees with it or not. He also noted that the determination of completeness starts a 60-day statutory clock to render a decision on the preliminary plan, which is part of the reason for limiting the hearing in the way the bylaws prescribe. He explained the ordinance's definition of an aggrieved party as someone suffering a particularised injury from approval or denial, which being affected the same as everyone in town does not make you.

17. 48:05
    Timber Oak association: boundary monuments

    Allen Irish (?), president of the Timber Oak association and a resident of 23 years, said two monuments matter to the association. The one at the northeast corner along Route 9 marking the 50-foot common land is missing, while every other monument set by the Bowdoinham surveyor Brian Smith in the mid-1980s is present and capped. At the southwest corner, a pin driven into a tree and named in the original Timber Oak development record sits about two feet from the monument now in place, a discrepancy he said should be within an inch. He said the association would not contest it but wanted it done right.

18. 48:05
    Timber Oak association: lot numbering and the road alignment

    Allen Irish (?) asked which lots are which, because a couple are in question with respect to wetlands and the numbering was unreadable on the plan. He also said that if DOT requires the subdivision road to line up squarely with Patriot Way rather than meeting Route 9 diagonally, the association is willing to negotiate in good faith an easement across the 50 feet of common land it controls, though the land beyond that belongs to Peggy Kelly.

19. 53:27
    Drainage onto an abutting property

    Derek Simkowitz of Timber Oak (?) said he bought his property two years ago and has spent about $20,000 pushing standing water back off it, including a new leach field. Because one of the applicants is building a house directly across the road, he sees a conflict in who decides whose yard floods, and asked for peer review of the drainage work so that he is not dealing with the problem again a year from now.

20. 53:27
    Whether the timber harvest was ever verified

    David Griswold (?) of Timber Oak Drive (?) asked whether anything had been done under section 6.3.1, which requires the planning board to verify timber harvesting within the past five years. He said harvesting was done, with grinders and skidders on site, and that when he raised it at the time the zoning enforcement officer told him there was nothing the town could do.

21. 53:27
    Buffering and the ordinance against the comprehensive plan

    Heather Roy (?) of Hallowell Road (?) said she is not against the subdivision but asked the board to remember it is the first and last line of defence for the rural character of the town. She pointed to buffering: the current ordinance requires a 50-foot setback where the comprehensive plan calls for 100 feet, and asked which the board would decide on, citing the privacy fence on Ruby Lane and the screening planted along the gravel pit. She also raised the process question that the public gets no chance to speak before the board votes on completeness or on individual criteria.

22. 59:11
    The discharge found during the meeting

    Heather Roy (?) said she had gone into the registry of deeds while sitting in the meeting and found that a discharge had been written on May 6 and recorded on May 9. She asked the board to do its own due diligence and require the proof the ordinance calls for rather than take the applicant at face value, saying it had not been hard for her to find.

23. 59:11
    41 acres or 53

    Heather Roy (?) noted the tax map carries the parcel at about 41 acres while the survey shows about 53, which happens to be the tax map figure plus the acreage the current landowner intends to keep. She also said the coordinates on a survey she holds of the adjoining property do not match those on this survey along what she and Allen Irish (?) both described as a laser-straight line marked by granite posts, and asked for third-party review. She closed by reminding the board that an aggrieved party other than the applicant may also appeal a decision.

24. 1:04:19
    Conservation commission: the prior harvest

    Joe Roy (?) of Pinkham Brook Road, a conservation commission member and wildlife biologist, urged the board to use its authority to require information from the forester responsible for the harvest. On the site walk he saw what looked like violations: a culvert with fill placed over it is a permanent crossing requiring a permit, and his search of the state's public permit records found none for that access. He added that skid trail crossings near ground where water percolates out suggest at least intermittent streams, which are protected under the Forest Practices Act the town has adopted.

25. 1:04:19
    Conservation commission: the wetland delineation

    Joe Roy (?) said the delineation was done outside the growing season, when it is not possible to demonstrate hydrology, hydric soils and a wetland plant community with the ground frozen and the vegetation dead. In his professional practice a delineation done between October and the spring was treated as a reconnaissance exercise to be ground-proofed later, and he would not recommend building on a footprint established that way. The conservation commission asked the board to require a third-party review of the delineation.

26. 1:09:52
    Conservation commission: resource protection and open space

    Joe Roy (?) asked the board to be strict about impacts on the resource protection area, since this is not a woods road but a crossing that will carry daily traffic in perpetuity, and warned about precedent for future developments. He objected to a stormwater collection feature shown within the resource protection area, which is meant to be the last vegetative buffer protecting water quality, on the grounds that it would deliberately deposit lawn chemicals and road salt there and is not among the uses the ordinance allows. He praised the way the subdivision's open space connects with the open space on the adjoining parcel for habitat connectivity, and asked whether the gravel processing equipment whose removal was a condition of the lien has actually gone, since it was still on site during the walk.

27. 1:15:24
    Applicant's answer on the monuments

    The applicant said his surveyor had chosen the line he believes would hold up on appeal, and that because he took the conservative reading, any successful challenge would give the subdivision more land rather than less, with the abutter gaining. The board did not expect an answer that night and asked the surveyor to look at the recorded 1980s plan, including the pin in the tree, and respond on the discrepancies before the next meeting.

28. 1:21:01
    Lot numbering and the association's offer

    The applicant identified the two lots with wetlands in the corner as lots 11 and 12, and said lot 1 had been moved, shifting the numbering. On the association's offer of an easement to square the road up with Patriot Way, Allen Irish (?) said the association would want noise and light buffering along that border in exchange, and reminded the developers that association bylaws restrict what individual homeowners may do with their property lines. The applicant said he had already spoken with Peggy Kelly.

29. 1:26:20
    The chair's answers on buffering, title and acreage

    John Talbot said the board's minimum standard is the ordinance, so the 50-foot buffer governs even though it can ask for more, and that the board had not taken the applicant at face value on the encumbrance because it had relied on a title search rather than his word. On the 41 against 53 acres, the applicant said he puts no weight on tax maps and can only work from the certified survey; the board said it would look at that in peer review. On peer review generally, the chair said the need for it would be settled before preliminary approval.

30. 1:26:20
    The stormwater treatment area

    The applicant's engineer said resource protection zones sit in the low spots where water drains, so a treatment pond has to be near the low point to catch and treat road runoff before it reaches the stream, and described it as a soil filter that removes phosphorus and salt. Later, on the plan, he showed that the current location sits on the top edge of the 100-foot resource protection limit on already disturbed ground. Joe Roy (?) said the conservation commission's concern was based on an earlier sketch that had it inside the area, and that if it is now outside, the concern is met.

31. 1:31:52
    Rebuttals: the recorded survey and the forester

    Allen Irish (?) asked whether a certified map on file at the county registry takes precedence over a later survey, and the board asked the applicant's surveyor to look at it and respond before the next meeting. David Griswold (?) pressed again on the forester; the board said it would require certification in writing from the forester directly rather than a name and licence number, and from an outside forester rather than an associate.

32. 1:37:18
    Rebuttal on due diligence and town counsel

    Heather Roy (?) disagreed that the board had not taken the applicant at face value: the discharge was recorded on May 9 and the title search is dated June 14, so it should have been found. She said the burden of proof is on the applicant and that where the board does not have the document in front of it, the burden has not been met. She noted the surveyor's own plan says quitclaim deeds would be the easiest way to resolve the boundary discrepancies, and suggested the board ask town counsel whether its decisions rest on the land use ordinance or the comprehensive plan. She also reported a new driveway access onto Route 9 installed in the past week that does not appear on the plan and may affect sight lines.

33. 1:42:19
    Rebuttal on forestry law and stormwater

    Joe Roy (?) said laws regulate the transfer of property after certain timber harvests and that a new landowner cannot simply use crossings left by a forestry operation, because the standards for development and for forestry differ, so the earlier activity does bear on future use. On stormwater, he accepted the engineer's explanation but said not all low spots in Durham are resource protection, this one is, and the ordinance's list of allowable actions inside resource protection does not include stormwater drainage features.

34. 1:47:48
    Board questions after the hearing closed

    Juliet Caplinger asked Heather Roy (?) how she had found the discharge; she had searched the registry by the current landowner's name, found it under the landowner and the town of Durham, and offered to email the abstract. The board told the applicant to go back to his title company. Juliet Caplinger then listed the third-party reviews being asked for: the survey, stormwater, the wetland delineation, and forestry including permits.

35. 1:53:37
    Support for peer review from experience

    Allan Purinton said third-party review is the board's due diligence and its responsibility, citing a six-house subdivision approved on Royalsborough Road where sight distance turning left out of the development is a serious problem now referred to the road commissioner and MDOT. The board had already ruled on it before anyone brought the discrepancy to their attention. Other members agreed there was enough here to warrant outside review.

36. 1:53:37
    Town planner's comments: the survey and open space

    George Thebarge advised that the board is not a court of law and cannot judge between competing surveys, but that the applicant must provide a certified survey plan and the one submitted is not certified, which will be a requirement for preliminary approval. Because the applicant must set aside 50% of the parcel as open space, the questionable perimeter areas matter, and the board has no plan showing the disputed areas and the open space calculation; clear documentation would resolve it.

37. 1:59:11
    Constrained lots

    George Thebarge pointed to lots with a large wetland running through the middle, where the applicant has expanded the lots into the open space to meet the technical 50% standard without changing where a house would actually have to be built. He warned that whoever develops such a lot will be tempted to fill into the wetland, and offered two remedies: require a site plan and conceptual grading plan for that lot, binding on whoever builds and amendable only by coming back to the board, or reconfigure the lots to put the wetland into the open space.

38. 1:59:11
    The intersection with Route 9

    George Thebarge said the new road should be directly across from Patriot Way rather than diagonal, because offset intersections leave drivers unsure who has the right of way on a road busy with school and commuter traffic. The applicant has moved it as far as he can within the 50 feet available, which may be enough, and George recommended a traffic engineer peer review to say whether it is, citing the Royalsborough Road subdivision.

39. 1:59:11
    Fire protection water supply

    George Thebarge read the ordinance as requiring an on-site water supply of 10,000 gallons plus 2,000 gallons per house, in underground tanks or cisterns, or a fire pond of 120,000 gallons, with the volume reducible if the fire chief approves residential sprinklers in every home. He said past subdivision decisions eliminated the requirement entirely, which he does not think is consistent with the ordinance. The applicant now proposes a 36,000-gallon fire pond with no sprinklers, falling back to a dry hydrant on the stream, which would need verification that it does not run dry in summer. The board can grant a waiver if one is applied for, and will follow up with the fire chief.

40. 1:59:11
    Interconnections and DEP permits

    The ordinance says the board should consider interconnections whenever it approves a dead-end road; there is undeveloped land west of the site running through to Dyer Road and back to Hallowell Road, and the applicant has said he is willing to grant a right of way from the hammerhead to the property line, which would sit unused until someone develops it. George Thebarge also agreed with the conservation commission that removing the existing stream crossing needs review, and expected DEP permits both for the new crossing and for the stream alteration and restoration, alongside Army Corps review.

41. 2:04:24
    High-intensity soil survey

    George Thebarge advised against requiring one. He described the NRCS system as a generalised national recommendation that most of southern Maine would not pass and said he knows of no Maine community that applies it as a development review standard. If the test pit logs show extensive hydric soils or shallow ledge affecting construction, he said that belongs in the engineering peer review, for instance whether geotextile is needed to carry the road across the wet areas.

42. 2:10:12
    When the peer reviews should happen

    Members wanted the reviews done early, and noted a sequence: the wetland line has to be right before stormwater design means anything. George Thebarge explained the constraint: with 60 days to decide the preliminary plan there is no time to run reviews and go back and forth first. His recommendation was to make them conditions of preliminary approval so they run while the applicant pursues DEP and Army Corps permits, with any resulting changes folded into the final plan. Members pressed on how they can approve a plan they do not yet understand, and he described the sequence as sketch plan, then preliminary approval that the plan can meet the standards, then the investment in peer reviews and state permits.

43. 2:15:58
    What the board wants reviewed

    The board settled on three areas plus forestry: an all-encompassing engineering peer review covering road design and drainage, paid from the developer's escrow; a separate traffic or transportation engineering review of the Route 9 intersection alignment; a wetlands review including permitting; and, separately from peer review, a licensed forester's certification or a DACF determination on the harvest. Members also wanted a design and cross section for the new stream crossing rather than a description, and asked whether one firm could carry the engineering and traffic work together so the pieces stay tied.

44. 2:21:22
    Legal review and the title

    The board discussed asking the town attorney to review the legal issues, which George Thebarge said was not yet on his draft list but could be added. The simpler route agreed was to ask the applicant's title company for an updated search showing the recorded discharge, at the applicant's cost, so the paperwork is in the file.

45. 2:21:22
    The timber harvesting requirement

    Members were uneasy that a possible violation had been brought to their attention and could not be ignored. George Thebarge read the ordinance: the board shall ascertain that any timber harvested has been harvested in compliance with the rules adopted to eliminate liquidation harvesting, and where a violation has occurred must determine that five years have elapsed since the owner under whom it happened acquired the parcel. The board may request technical assistance from DACF or accept certification by a licensed forester. Since the applicant's forester was said to have no email, the board asked the town planner to contact DACF directly.

46. 2:21:22
    Easements and next steps for the applicant

    A member noted the Central Maine Power easement and another easement appear in the title report but not on the survey, and asked that they either be shown or confirmed to lie off the property. The chair told the applicant that although the formal requirements would not be set until August, nothing stopped him starting on DOT and other agency requests now, while cautioning there is no guarantee of approval and a long way still to go.

47. 2:26:30
    Next meeting

    The next meeting is Wednesday, August 3 at 6:30. One member said he would be away at a wedding in France; the chair said he does not like to change scheduled meetings. He also reminded members that at least three of the same people need to sit through the rest of this application's votes unless the requirement is waived.

What was decided

• 3:22
  Minutes of the June 1, 2022 meeting accepted, no changes offered.passed
• 37:27
  Find the Deer Creek Crossing preliminary plan application complete, with a note that the additional monumentation of the parcel corners will be handled as a condition of approval rather than waived. Moved by Ron Williams, seconded by Allan Purinton; carried 5-0 on a show of hands.passed
• 2:15:58
  Agreed, without taking a vote, that the town planner will draft a set of preliminary approval conditions for the August 3 meeting covering peer reviews of the engineering including road design and drainage, of the Route 9 intersection by a traffic engineer, of the wetland delineation including permits, and of forestry practices, for the board to vote on then.passed
• 2:21:22
  Agreed that the town planner will contact the Department of Agriculture, Conservation and Forestry to seek a determination on whether a timber harvesting violation occurred on the parcel, rather than leaving it to the applicant to produce a forester.passed
• 2:21:22
  Agreed to ask the applicant's title company for an updated title search showing the discharge recorded in May, at the applicant's cost, so that the documentation is in the board's file.passed
• 2:26:30
  Adjourn. Moved by Juliet Caplinger, seconded by John Talbot; carried 5-0.passed

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 planningboardminutes071322.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.

• Motion not recorded in wordscarried 5-0

  Moved by Ron Williams, seconded by Allan Purinton

• adjourncarried 5-0

  Moved by Juliet Caplinger, seconded by John Talbot

Worth knowing

• 3:22
  The rewrite of the resource protection district affects 480 of the town's roughly 2,000 parcels: 360 owners already written to for the first part and another 120 for the second. Both parts are headed for the same town meeting warrant, with public informational meetings planned right after Labor Day.
• 59:11
  A resident searched the registry of deeds during the meeting and found the discharge of the town's court judgment against the prior owner recorded on May 9, which the applicant's title search dated June 14 had not shown. She told the board the burden of proof is on the applicant and that it should require documents rather than accept assurances; the board said it had relied on a title search, not the applicant's word, but agreed to ask for an updated search.
• 53:27
  Durham's land use ordinance requires a 50-foot buffer along existing roads where the comprehensive plan recommends 100 feet. George Thebarge told the board the comprehensive plan recommendation has no effect until the ordinance is amended and that it must decide on the ordinance; a resident asked the board to check that with town counsel.
• 1:59:11
  The ordinance requires an on-site water supply for fire protection of 10,000 gallons plus 2,000 gallons per house, or a fire pond of 120,000 gallons, reducible only if the fire chief approves sprinklers in every home. The applicant proposes a 36,000-gallon pond with no sprinklers, and the town planner said past subdivisions were allowed to drop the requirement entirely in a way he considers inconsistent with the ordinance.

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: 3 passages of motion language, against 6 decisions summarised.

Elsewhere

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