Select Board Meeting ~ February 6, 2024

2024-02-06 · Select Board · 2:35:19 · watch on YouTube →

Regular Select Board meeting of February 6, 2024, with all five members present and the town planner George Thebarge attending. The board took up three planning board recommendations for the town meeting warrant: it accepted the housing diversity and density amendments responding to state law LD 2003, accepted the solar energy systems ordinance, and tabled the codification of land use fees so the planner could draft catch-all language for the town attorney to review. The rest of the meeting was budget work: the board went through the town manager's adjustments for actual spending, voted the administration, municipal buildings, planning and codes, fire department and solid waste budgets, and voted to take the whole $33,875 increase from fund balance so the mill rate would not move. The assessing line was held over until revaluation bids are opened on February 12, and the Union Church transfer was left unresolved. The board closed with a report on a GPCOG session about public comment and civility at municipal meetings, then went into executive session on a personnel matter.

What was discussed

1. 5:18
   Call to order and agenda

   Joe Tomm opened with a full quorum and led the Pledge of Allegiance. The town manager had reordered the agenda; there were no further amendments and no public comment.

2. 5:18
   The three planning board recommendations

   Joe Tomm introduced the three items coming from the planning board and town planner: housing diversity and density in response to state law, solar energy systems with the conservation commission taking the lead, and draft amendments codifying fees for permitting services. He noted the 2022 town meeting had authorised the select board to set and adjust fees, and that the third item would put those fees into the land use ordinance.

3. 10:20
   Which lot size scenario is in the draft

   Heather Roy said two options had been shown at the public hearing and asked which one the warrant language represents, specifically whether it requires two full acres per dwelling. The board agreed to hold the item until George Thebarge arrived, and he came in shortly afterwards.

4. 10:20
   Housing policy: accessory apartments

   George Thebarge explained that the planning board worked from the comprehensive plan recommendation for more diverse housing while protecting town character, against LD 2003 which removed some of the town's authority. The draft allows a second accessory apartment on any single family dwelling where only one is now allowed, each capped at 50 percent of the main house floor area and either attached to the house or in an accessory building such as a garage or barn, with no increase in lot size required.

5. 15:21
   Worked examples of the size rules

   George Thebarge confirmed each accessory apartment may be up to 50 percent of the main house, so a 2,000 square foot house could take a 1,000 square foot in-law apartment and a 1,000 square foot unit over a garage, but not two separate units that amount to a duplex. Building a garage specifically to put a unit above it is allowed. Graphics illustrating the rules are on the town website.

6. 15:21
   Two acres per full-size dwelling unit

   The state requires the town to allow up to three full dwelling units on any lot where a single family home is allowed, but permits lot sizes to increase with additional units. After public input on school enrolment and tax impacts, the planning board settled on two acres for each full-size unit, so a duplex of two 2,000 square foot units would need four acres, with an accessory apartment on top of that requiring no further land. George Thebarge said the ordinance has required an extra half acre for a duplex for over 20 years, so the principle already exists.

7. 15:21
   Setbacks, frontage and driveways

   George Thebarge confirmed the units must still meet setbacks and the same 300 feet of road frontage as a single family home, with no greater setbacks required. On driveways, up to two homes served by one driveway stays a driveway; beyond that it is treated as a street or private way, requiring a road sign with each address on it.

8. 21:14
   What happens if the amendments fail

   George Thebarge said the town attorney has directed the code enforcement officer to follow state law wherever the local ordinance conflicts with it, so if the amendments do not pass, from July 1 someone could put a duplex and a single family home on two acres. Asked whether language could be added to revert automatically if LD 2003 were repealed, he said a law cannot anticipate that with an automatic trigger and the town would have to hold another hearing.

9. 21:14
   Vote on the housing amendments

   Before the vote, a member asked whether public comment at the planning board the following night could still change the language and was told it could not, this being the final draft. Josh Klein-Golden said he had attended or watched most of the planning board's meetings on it and considered it well thought out, and that it was now for the voters to decide.

10. 21:14
    Solar energy systems: fees and construction hours

    Heather Roy asked whether fees were set within the solar ordinance; George Thebarge said solar is covered by the separate fee schedule item, and that the regulations were integrated into the land use ordinance rather than made a standalone ordinance. Asked about construction hours and blasting, he said other parts of the ordinance already control hours of construction for any work, so no special provision was added.

11. 26:41
    Setbacks, buffers and vegetation management

    Equipment must sit 100 feet from a property line, with a 50-foot vegetative buffer where a visual impact analysis by a registered landscape architect shows one is needed, so a buffer would be required along an open road or a neighbour's house but not against woods. A vegetation management plan is required for the life of the facility, covering both weed control within the solar farm and maintenance of the buffer; George Thebarge said no landscape maintenance bond is proposed because those are not very effective.

12. 26:41
    What happens if the solar ordinance fails

    George Thebarge said the town would have no design standards at all, leaving the planning board only the conditional use criteria and exposing the town to legal challenge on either an approval or a denial. He said the town has had inquiries ranging from major battery storage systems to 40-acre solar farms, and that without this ordinance there is no authority to require a decommissioning plan for equipment with a life of about 20 years and 30 at most.

13. 32:25
    Whether to add a backup ban or moratorium

    Heather Roy said there had been more than one public comment calling for an outright ban on solar and asked whether a backup question should go on the warrant in case the ordinance fails. Josh Klein-Golden said the board's job was to decide whether to accept the planning board's recommendation and let the town decide, not to write contingency questions. George Thebarge said the select board cannot enact a moratorium and that the route would be to schedule a special town meeting with a moratorium question if the ordinance failed.

14. 32:25
    Vote on the solar ordinance

    One member abstained, giving a reason the transcript does not render intelligibly, and the chair announced four in favour.

15. 32:25
    Codification of fees: the attorney's opinion

    George Thebarge explained that the 2022 town meeting created a separate fee schedule so fees would not need a town meeting each time, and that the select board then questioned whether it could set fees not referenced in the ordinance. The town attorney advised that the board can set and calculate a fee for anything referenced in the land use ordinance, and recommended adding language to support any new fees. He gave E911 addressing as an example: the code officer spends half a day or more per new house, at a cost of several hundred dollars, and the town charges nothing.

16. 38:01
    The North Yarmouth comparison

    Heather Roy cited North Yarmouth, whose land use ordinance says the select board shall establish fees for all permits where fees are not specified, and pointed to their mass gathering fees, one of which is $5,000, for something not named in their 428-page ordinance. George Thebarge said Durham's difficulty is that the ordinance names a fee set by the select board in multiple specific places, which implies the board cannot do so elsewhere.

17. 38:01
    Where fees exist and where they do not

    George Thebarge read through the list, compiled by the planning board with the code enforcement officer. Fees exist for building, electrical, plumbing, demolition, reinspection, occupancy, after-the-fact permits, conditional use, preliminary and final subdivision, site plan review, peer review escrow, flood management, appeals, graveyard, junkyard, automobile recycling, gravel pit and mobile home park. There is none for subdivision sketch plan, amended subdivision approval, amended site plan review, shoreland zoning, driveway permits, or E911 addressing, so no fee is charged when the road commissioner issues a driveway permit and inspects a culvert.

18. 43:40
    The food truck example

    Heather Roy asked how the town would charge a food truck to operate at the Eureka Center. George Thebarge said there is no food service ordinance to attach a fee to, that state licensing applies to food service, and that land use regulation requires some permanency of use before a town can regulate it.

19. 49:19
    A catch-all clause

    George Thebarge offered to draft a subsection covering fees for all other permits authorised or required under the land use ordinance and not otherwise specified, and to run it past the town attorney. He cautioned against open-ended authority, citing Windham's $400 per house recreational fee, which is set at council level under a different form of government, and said residents may push back on a board that can set any fee.

20. 49:19
    Charging for staff time and a mass gathering permit

    Heather Roy said the town's fee schedule is far behind others, that in other towns people who use the planner's time are charged an hourly rate rather than having it subsidised by taxpayers, and that she wants a mass gathering permit so the fire chief is put on notice for public safety and the town can recover an administrative cost. Others said charging for a permit where no ordinance sets any standards is a separate question from codifying the land use fees.

21. 54:30
    Fee schedule tabled

    The board agreed the mass gathering and staff time questions are a separate discussion and directed George Thebarge to draft umbrella language for the codification of new fees, to be brought back at the next meeting.

22. 54:30
    Budget committee recommendations

    Jerry Douglass reported two changes from the budget committee: the assessing line increased from the select board's figure, given in the transcript as 60, to $140,000, an increase of $80,000; and the $9,543 Union Church line zeroed. The budget committee also increased the fund balance transfer to $580,000.

23. 54:30
    Where the Union Church money stands

    Members established that the $9,543 the select board had recommended, to bring the total to $31,000 against about $21,000 in the reserve account, was removed by the budget committee and not moved elsewhere. Nothing is currently budgeted for it unless the board puts it back.

24. 59:41
    Adjustments for actual spending

    Jerry Douglass presented line adjustments based on actuals, including dues and subscriptions and health insurance, and the solid waste line where $350,000 was budgeted against an actual of $361,304, for which he proposed $375,000. The adjustments total an increase of $28,875.

25. 59:41
    Whether the solid waste line is high enough

    Josh Klein-Golden noted the hauler's contract rises by 5 percent a year or the Consumer Price Index, whichever is higher, and that 5 percent on the 2023 actual gives about $379,369. Jerry Douglass said splitting the year between the old and new contracts at the same tonnage gave him $372,000, and that $370,000 had been budgeted the previous year.

26. 1:04:55
    Assessing held for the bids

    The revaluation RFP bids were due February 8 and would be opened February 12, with one received so far. Members said the budget committee's $80,000 was based on an older estimate, quoted variously in the transcript as around $160,000, about $140,000 and around $180,000, and agreed it was better to wait two weeks for real quotes than to budget against an estimate. Jerry Douglass said he did not expect the revaluation to be completed within this budget year, more likely 2026 or 2027.

27. 1:09:58
    Assessing line left open

    The board agreed to wait on the assessing line without a formal motion, and to set the number at the next meeting once the quotes are open. Members noted the warrant article should carry the actual cost rather than an estimate.

28. 1:09:58
    Union Church: how to word the transfer

    The board discussed whether to put the whole $31,000 as a single question, made up of the roughly $20,457 or $21,000 in the Union Church reserve plus the $9,543. A member argued for a single charitable donation question to the historical society for the restoration, which would keep it off the budget.

29. 1:15:24
    Whether a donation would lapse

    Heather Roy argued the $9,543 should sit in the reserve account so it does not lapse back into the fund balance and does not have to be voted again each year while the work is outstanding. Others said money given as a charitable donation carries no strings and could be used for anything, and that if it is not spent within the year it returns to the general fund.

30. 1:20:43
    Public service and the restoration money

    Josh Klein-Golden explained his position that money donated from the restoration project has to be used for a public service, and that the Union Church would raise questions about occupancy with no second means of egress, limited parking and limited open hours, so a straight donation would be a cleaner way to give the money with the original intent. The discussion did not reach a conclusion.

31. 1:25:43
    Solid waste raised to $380,000, and community services

    Joe Roy recommended raising the hauling line from $375,000 to $380,000 to capture the 5 percent minimum increase, saying he preferred to set the precedent of budgeting the known increase. Members also reconciled a $16,700 figure against $16,100 in the book, establishing that the $600 for general assistance is budgeted but categorised separately from outside organisations.

32. 1:30:51
    Budget votes: administration, municipal buildings, planning and codes, fire

    The board went through the town manager's highlighted line changes and voted each department budget in turn, on pages six through nine of the updated workbook. A member corrected the fire department figure from 603,854 to 603,845 before the vote.

33. 1:35:59
    Solid waste budget vote

    Josh Klein-Golden moved the solid waste budget with the hauling line raised from $375,000 to $380,000. The transcript gives the total moved as $394,000; the minutes record the solid waste budget as $380,000.

34. 1:35:59
    Fund balance transfer

    Jerry Douglass had proposed taking $525,000 from fund balance, $25,000 more than the $500,000 previously approved, with the remaining $3,875 of his adjustments raised through the tax levy. Josh Klein-Golden moved to raise the transfer to $533,875 so the whole increase, the $28,875 of adjustments plus the $5,000 added to solid waste, comes out of fund balance and the mill rate stays where it is, given as 21.348.

35. 1:41:01
    Process for the next meeting

    The budget committee will meet on Monday February 12, the same day the revaluation bids are opened, and the select board meets February 13, so the board will have the quotes and the committee's updated recommendation on the assessing line in front of it. A member said he would not be at the next meeting and urged the board to take any assessing increase from fund balance as well.

36. 1:46:31
    March meeting dates

    A board member (Joe Roy (?)) said he was called out of state, to Massachusetts from the 11th to the 13th and to Grand Rapids, Michigan from the 24th to the 29th, both weeks with select board meetings, and asked whether one meeting could be shifted given it is budget season before town meeting. He noted there is no policy allowing him to attend remotely. Another member said his wife is scheduled for trial and would know the date the following week, and the board agreed to take it up at the next meeting.

37. 1:46:31
    Town manager's report

    Jerry Douglass said most of the Efficiency Maine lighting was installed with a few outside lights at the centre remaining, delayed by water found inside the walls when the old lights came off, and expected to be finished by Friday. He thanked the budget committee and its chair for their work on the budget, and said absentee voting was under way.

38. 1:46:31
    Election and candidate nights

    One person has turned in papers so far, with others filed for budget committee and school board. Members discussed reviving the past practice of having candidates come before the select board, which had lapsed largely because races were uncontested.

39. 1:51:43
    Board member report: civil civic dialogue session

    Joe Tomm reported on a GPCOG session in Portland, run by two lawyers for chairs from surrounding towns, on public comment and civility. He said Scarborough has two political action committees at every select board meeting taking up most of the meeting, and that towns allowing Zoom have been so badly disrupted, including antisemitic remarks, that someone has to sit at the shut-off switch.

40. 1:57:16
    What the lawyers advised

    Joe Tomm said the advice was that First Amendment rights are broad, that people generally cannot be removed or stopped from speaking, and that rules and bylaws must not be so restrictive as to infringe them. The lawyers recommended the three minute rule, cautioned against allowing public comment on every agenda item, and suggested taking a vote to continue or ending the meeting at a set hour such as 9:00. He said he would use this in the bylaws he is drafting and that Jerry Douglass could request the presentation.

41. 1:57:16
    Consent agenda, upcoming meetings and executive session

    The board accepted the consent agenda and minutes. Upcoming meetings: select board February 13 and February 27, budget committee Monday February 12, planning board February 7, all at the fire station. The board then went into executive session on a personnel matter.

What was decided

• 21:14
  Accept the planning board recommendation on the Affordable Housing Act ordinance, the housing diversity and density amendments, as a warrant article. Moved by Joe Roy, seconded by Josh Klein-Golden; carried 5-0.passed
• 32:25
  Accept the planning board recommendation on solar energy systems as a warrant article. Moved by Josh Klein-Golden, seconded by Heather Roy; carried 4-0-1 with one abstention.passed
• 54:30
  Table the fee schedule discussion to another date and direct the town planner to draft umbrella language for the codification of new fees, to be reviewed by the town attorney. Moved by Josh Klein-Golden, seconded by Heather Roy; carried 5-0.tabled
• 1:09:58
  Hold the assessing line until the revaluation bids are opened on February 12 and set the number at the February 13 meeting. Agreed without a motion.tabled
• 1:30:51
  Accept the administration budget of $473,656. Moved by Heather Roy, seconded by Joe Roy; carried 5-0.passed
• 1:30:51
  Accept the municipal building budget of $22,435. Moved by Joe Roy, seconded by Heather Roy; carried 5-0.passed
• 1:30:51
  Accept the planning and codes budget of $124,500. Moved by Heather Roy, seconded by Joe Roy; carried 5-0.passed
• 1:30:51
  Accept the fire department budget of $603,845. Moved by Joe Roy, seconded by Josh Klein-Golden; carried 5-0.passed
• 1:35:59
  Accept the solid waste budget with the hauling line raised from $375,000 to $380,000. Moved by Josh Klein-Golden, seconded by Joe Roy; carried 5-0. The minutes record the solid waste budget as $380,000 while the transcript gives the total moved as $394,000.passed
• 1:35:59
  Increase the fund balance transfer to $533,875, so that the full increase from the adjustments for actuals and the solid waste change comes out of fund balance rather than the tax levy and the mill rate does not move. Moved by Josh Klein-Golden, seconded by Heather Roy; carried 4-1.passed
• 1:57:16
  Accept the consent agenda as presented. Moved by Heather Roy, seconded by Joe Roy; carried 5-0.passed
• 1:57:16
  Move into executive session at 8:25 pm to discuss a personnel matter. Moved by Joe Tomm, seconded by Joe Roy; carried 5-0.passed
• 1:57:16
  Adjourn the meeting at 9:00 pm. Moved by Heather Roy, seconded by Richard George; 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 sb_meeting_minutes_02_06_24.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.

• accept the Planning Board recommendation for Affordable Housing Act Ordinance for a warrant articlecarried 5-0

  Moved by Joe Roy, seconded by Josh Klein-Golden

• accept the Planning Board recommendation for Solar Energy Systemscarried 4-0-1

  Moved by Josh Klein-Golden, seconded by Heather Roy

• table the Fee Schedule Discussion for another datecarried 5-0

  Moved by Josh Klein-Golden, seconded by Heather Roy

• accept the Administration Budget of $473,656carried 5-0

  Moved by Heather Roy, seconded by Joe Roy

• accept the Municipal Building Budget of $22,435carried 5-0

  Moved by Joe Roy, seconded by Heather Roy

• accept the Planning Codes Budget of $124,500carried 5-0

  Moved by Heather Roy, seconded by Joe Roy

• accept the Fire Department Budget of $603,845carried 5-0

  Moved by Joe Roy, seconded by Josh Klein-Golden

• accept the Solid Waste Budget of $380,000carried 5-0

  Moved by Josh Klein-Golden, seconded by Joe Roy

• increase the Fund Balance to $533,875carried 4-1

  Moved by Josh Klein-Golden, seconded by Heather Roy

• accept the consent agenda as presentedcarried 5-0

  Moved by Heather Roy, seconded by Joe Roy

• move into executive session at 8:25pmcarried 5-0

  Moved by Joe Tomm, seconded by Joe Roy

• adjourn the meeting at 9:00 pmcarried 5-0

  Moved by Heather Roy, seconded by Richard George

Worth knowing

• 21:14
  If the housing amendments fail at town meeting, the town attorney has directed the code enforcement officer to follow state law wherever the local ordinance conflicts with it. George Thebarge said that from July 1 someone would then be able to put a duplex and a single family home on two acres, where the planning board's draft would require two acres for each full-size dwelling unit.
• 26:41
  George Thebarge said that without the solar ordinance the town has no design standards and no authority to require a decommissioning plan for equipment with a life of about 20 to 30 years, leaving the planning board only the conditional use criteria and the town exposed to legal challenge either way. He said inquiries received range from major battery storage systems to 40-acre solar farms.
• 59:41
  Solid waste came in at an actual $361,304 against $350,000 budgeted, and the hauler's contract rises by 5 percent or the Consumer Price Index each year, whichever is higher. The board set the hauling line at $380,000 to capture the known 5 percent.
• 1:35:59
  The board voted 4-1 to raise the fund balance transfer to $533,875, taking the whole $33,875 increase out of fund balance rather than the tax levy so the mill rate would not move from the figure given as 21.348. The assessing line, where the budget committee wants an extra $80,000 for a revaluation, was left open until bids are opened on February 12; Jerry Douglass said the revaluation would not be finished within this budget, more likely 2026 or 2027.

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: 7 passages of motion language, against 13 decisions summarised.

Elsewhere

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