Select Board Meeting ~ August 13, 2024

2024-08-13 · Select Board · 3:00:59 · watch on YouTube →

The Select Board met on August 13, 2024 with Joe Tomm absent. Town planner George Thebarge asked for direction on how far the joint planning board and conservation commission working group should go in pulling existing buildings out of the Resource Protection District, and the board voted to keep only the two narrower options on the table. The board also authorized the town manager to sign up for push notifications through Text My Gov, approved the consent agenda, and heard reports from the town manager and members. The second half of the meeting was a workshop on the Durham Historic District Commission's (?) proposed changes to Article 12 and Section 5.14 of the land use ordinance, with commission chair Lois Kilby-Chesley answering questions. Much of that discussion turned on the absence of written standards for approvals and on whether the commission should remain a quasi-judicial body. No decision was taken on the historic ordinance; the board agreed to put its own discussion of the recommendations on a future agenda.

What was discussed

1. 3:15
   Call to order and public comment

   The meeting opened at 6:32 p.m. with one member absent. In public comment Lois Kilby-Chesley of Runaround Pond Road (?) said no select board minutes had been posted since May 28, covering both June meetings and both July meetings.

2. 3:15
   Fee schedule review

   Heather Roy presented a revised fee schedule reflecting the grammatical and minor edits agreed at an earlier meeting, plus a proposed table of rental fees for the Eureka Center. The board did not discuss it in detail and agreed to put it on the next agenda for review and a vote.

3. 3:15
   Resource protection update from the town planner

   George Thebarge reported that new state Beginning with Habitat data has made some comprehensive plan data inaccurate and that the working group is updating Resource Protection District boundaries accordingly. He said a separate problem is that existing buildings were placed in the district, and the town's rules on expanding non-conforming uses may not be consistent with state law, so relief through the planning board or board of appeals may not work.

4. 13:37
   Non-conforming use expansion rules

   George Thebarge said the ordinance lets the planning board approve expansions up to 30 percent under conditional use criteria but sets no limit on what the board of appeals can allow, which he called illogical. He said the drafting was copied from other ordinances and will need review with the town attorney as part of codification. He counted about 56 buildings currently in resource protection, of which roughly 18 will come out automatically through the Beginning with Habitat update.

5. 19:06
   Debate over a blanket buffer versus property-by-property review

   Members said a blanket 250-foot or 100-foot buffer would not reflect differences between properties, and preferred individual assessment with the reasoning shown to the board. Josh Klein-Golden argued option one should be dropped because the developed-area map is a 250-foot buffer around roads and buildings rather than a map of actual development, and removing everything inside it would strip protection from streams and wetland complexes.

6. 24:44
   Whether variances could avoid a zoning change

   Heather Roy asked whether a legal opinion could be sought on using variances, rather than putting 30 property owners in front of a town meeting vote. George Thebarge said a variance can only be granted for one individual property and that a zoning map change requires town meeting approval. Members also disagreed over whether the board's original direction to the working group had covered these non-conforming buildings at all, or only the area around the six-plus co-occurrence.

7. 30:04
   Motion on the working group's direction

   The board moved to let the working group continue on the property evaluations while limiting it to options two and three, the 250-foot and 100-foot buffers around existing buildings, each with further calibration. Members agreed to seek legal advice on the mechanism before any public hearing, without holding up the working group's analysis.

8. 35:46
   Text notification service comparison

   Jerry Douglass compared two services: one at $3,900 a year requiring residents to download a town app, and Text My Gov at $4,000 a year, which obtains cell numbers associated with Durham addresses from the post office and mass texts residents asking them to opt in. He recommended Text My Gov because more people would be reached. Members asked about a QR code for sign-ups at polling stations and said advance publicity would be needed so the first text is not taken for spam.

9. 46:30
   Town manager report

   Jerry Douglass said the town's server is full, that the IT provider has installed an external hard drive and may bring a proposal to fix it, and that document retention rules need to be considered before deleting duplicates. He reported he would attend the municipal managers' conference. He also relayed a Homeland Security recommendation for bollards in front of the town office, noting a driver had recently accelerated across the lawn toward the building.

10. 51:54
    Board member reports

    A member reported circulating a draft law enforcement white paper and planning to meet with Ryan McGee. Heather Roy reported booking the Durham Community School cafeteria for September 10, with the business meeting at 5:30 p.m. and the law enforcement portion at 6:00 p.m., and said Roberta (?) is willing to come speak about aging in place. She also raised that the new website has no built-in search, only a Google search, and asked that the non-functioning blinking light at Dead Man's Curve come back on a future agenda.

11. 57:15
    Consent agenda and upcoming meetings

    The consent agenda was approved as amended to add the June 11, 2024 meeting minutes. Upcoming meetings listed were the planning board on September 4, the select board on August 27, and the September 10 meeting at the Durham Community School starting at 5:30 p.m.

12. 1:03:24
    Workshop opens on historic district ordinance changes

    Lois Kilby-Chesley, chair of the Durham Historic District Commission, presented the commission's marked-up versions of Article 12 and Section 5.14 and said she had been given no direction on what to prepare. She confirmed the documents contain all the commission's proposed changes and that the commission voted on them. Board members went through the markups asking clarifying questions.

13. 1:14:30
    Disagreement over the workshop format

    Attendees (?) asked whether they could speak and ask questions of the board. The chair said the format was board members asking questions of the commission's representative, with other commission members brought in only to answer a specific question. One commission member said he had rearranged his business to attend expecting a working session, said he was disappointed, and left.

14. 1:20:00
    Certificate of approval and the absence of written standards

    Lois Kilby-Chesley explained the proposed change from 'certificate of appropriateness' to 'certificate of approval', on advice from a national affiliate meeting, because 'appropriate' is a subjective word. Asked whether there is a written set of criteria an applicant must meet, she said no, that applications are described case by case and reviewed by codes and the commission. Board members said an applicant should be able to know in advance what standards they are being judged against.

15. 1:30:19
    Why non-historic properties in the district are covered

    Members asked why the commission has oversight of neighbouring properties that are not historic, including houses built as recently as around the year 2000. Lois Kilby-Chesley said that was decided when the district was established, which she put at 1994, and that the current members were not involved. She said the commission sends letters to owners in the district so the requirements are not a surprise.

16. 1:42:04
    Definition of a contributing resource

    Lois Kilby-Chesley said the commission had discussed at length whether some buildings should be classed as non-contributing and voted that all buildings in the district are contributing. Board members said the lack of any written definition of a contributing resource was the core of their difficulty. The chair read comprehensive plan policy 4.1, which recommends amending the historic district ordinance into a historic protection ordinance applying to all listed structures inside and outside the current district.

17. 1:53:11
    Proposal to consolidate Article 12 into Section 5.14

    A member said that apart from creating the district and the commission, everything in Article 12 already appears in Section 5.14, and suggested repealing most of Article 12 and moving the commission's creation and review role into 5.14. The same member questioned whether the 1,500-foot provision covering abutters and lots across the street should stay. Another member said the aim should be a marriage of the two articles rather than eliminating the district.

18. 1:58:43
    Advisory role versus quasi-judicial authority

    The chair summarised one option as making the commission advisory, on the model of the conservation commission, with a written requirement that applicants engage it, while leaving the decision with whoever holds permitting authority. A member raised the concern that the town has repeatedly gone without a code enforcement officer, leaving that role to be covered by other staff. Members also discussed extending any review beyond the district to all listed buildings.

19. 2:09:18
    How buildings get listed and the 1,500-foot buffer

    Members asked why some buildings are listed and equivalent buildings nearby are not, and were told listing depends on the owner applying, since national registry listing brings additional restrictions. One member gave the example that a neighbour could seek listing in order to constrain what the property next door could build, and called that inequitable.

20. 2:15:01
    The listing and eligibility process explained

    George Thebarge said five Durham buildings are listed, that owners applied and were reviewed by the Maine Historic Preservation Commission and the Interior Department, and that alterations can disqualify a building. He said five more were flagged as eligible through Maine Department of Transportation surveys required under federal road funding rules, but that MMA legal staff advised the town cannot subject buildings to Section 5.14 unless they are officially listed or officially determined eligible. Two properties were removed after the state said its survey lacked enough documentation.

21. 2:30:42
    Commission chair's objection to the format

    Lois Kilby-Chesley said a workshop means a committee of the whole where everyone is at the table, and that commissioners had given up two and a half hours expecting that and did not get to speak. The chair apologised for the miscommunication and thanked the commission for the work involved. A member said an ordinance goes to town meeting better when all the stakeholders are on the same page.

22. 2:35:44
    Town planner's analysis of the ordinance structure

    George Thebarge said he spent two years reviewing the ordinance at the request of a previous commission chair and presented a report to the commission in August 2022. He said the commission is a quasi-judicial body required under Maine law to give due process to applicants and abutters, and that the ordinance creates three overlapping jurisdictions between the commission, the code officer and the planning board. He said the town must either provide qualified personnel or consultants for that review, or change the structure.

23. 2:46:04
    Who would pay for third-party review

    George Thebarge said planning board applicants fund a peer review escrow, and that without something equivalent for historic district projects the cost would fall on the town or a private organisation. A member said putting it in the budget feels burdensome to taxpayers and putting it on the applicant feels burdensome to homeowners. Members noted that third-party review cannot work without written standards to review against, and questioned whether the commission is making findings of fact.

24. 2:51:14
    Appeals and the limits of the current process

    George Thebarge said an appeal would go to the board of appeals, which reviews the record and the process rather than conducting its own review, and can uphold, remand or overturn. He cited a dispute over a Portland museum building as an example of how contested a historic determination can become. A member said the process feels messy and a burden.

25. 2:56:36
    Next steps and adjournment

    The chair said the board's job is to decide what goes on the warrant after taking recommendations from the commission, and that the board now needs its own discussion of which changes it accepts. Members disagreed over whether the board can amend a recommendation or only accept or reject it. The board agreed to schedule that discussion at a future meeting and adjourned.

What was decided

• 30:04
  Have the working group continue forward on the property evaluations exploring options two and three, the 250-foot and 100-foot buffers around existing buildings, leaving option one off the table. Moved by Josh Klein-Golden, seconded by Joe Roy; the minutes record it carried 4-0.passed
• 46:30
  Allow the town manager to sign up for push notifications through Text My Gov. Moved by Josh Klein-Golden, seconded by Heather Roy; the minutes record it carried 4-0.passed
• 57:15
  Approve the consent agenda as amended, with approval of the June 11, 2024 meeting minutes added as Item C. Moved by Josh Klein-Golden, seconded by Heather Roy; the minutes record it carried 4-0.passed
• 2:30:42
  Extend the meeting by 30 minutes. Moved by Josh Klein-Golden, seconded by Deb Oliver; the minutes record it carried 4-0.passed
• 2:56:36
  No decision was reached on the historic district commission's proposed changes to Article 12 and Section 5.14; the board agreed to schedule its own discussion of the recommendations at a later meeting.tabled
• 2:56:36
  Adjourn. Moved by Josh Klein-Golden, seconded by Deb Oliver; the minutes record it carried 4-0.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 sbminutes_08_13_2024.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.

• have the working group continue forward on the property evaluations exploring options two (2) and three (3)carried 4-0

  Moved by Josh Klein-Golden, seconded by Joe Roy

• allow the Town Manager to sign up for Push Notifications through Text My Govcarried 4-0

  Moved by Josh Klein-Golden, seconded by Heather Roy

• approve the consent agenda as amended with the approval of the June 11, 2024 meeting minutes added - Item Ccarried 4-0

  Moved by Josh Klein-Golden, seconded by Heather Roy

• extend the meeting by 30 minutescarried 4-0

  Moved by Josh Klein-Golden, seconded by Deb Oliver

• adjourncarried 4-0

  Moved by Josh Klein-Golden, seconded by Deb Oliver

Worth knowing

• 3:15
  Lois Kilby-Chesley told the board in public comment that no select board minutes had been posted since May 28, covering both June meetings and both July meetings.
• 35:46
  Text My Gov costs $4,000 a year against $3,900 for the app-based alternative, and the package covers 50,000 outgoing texts a year. It obtains cell numbers tied to Durham addresses from the post office and texts everyone once to ask them to opt in, and the contract runs two years.
• 1:42:04
  There is no written definition of a contributing resource and no written approval criteria in the historic district ordinance. The commission voted that every building in the district is contributing, although roughly eleven or twelve were built before 1900 and only five buildings in town are actually listed on the national register.
• 2:30:42
  The historic district commission chair said the session was not the workshop format she had been led to expect, that her members had given up two and a half hours without getting to speak, and that one commissioner had left. The chair apologised for the miscommunication.

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

← 2024-07-23 Select Board2024-08-27 Select Board →All meetings