November 17, 2020 ~ Appeals Board Meeting

2020-11-17 · Board of Appeals · 1:47:06 · watch on YouTube →

A Board of Appeals meeting held over video with five members and both alternates present. The first matter was Riverbend's appeal from the planning board's denial of a conditional use permit for the landscaping business at 14 Mill Pond Road, turning on whether the concrete block bins used to contain loam and mulch are a 'structure' under the Durham ordinance. The board found the appeal timely (it was only live because the planning board had never sent the applicant its written decision) then heard argument from the owner's attorney and denied the appeal, holding that the planning board's finding on scale and intensity of use stood independently of the structure question. The chair then recused herself from the second matter and an alternate was seated. In that matter the board sustained Kenneth Carl's appeal of the code enforcement officer's junkyard citation, on the view that the unscreened material belongs to the neighbouring landowners rather than to the leased 300 by 300 foot junkyard area, and authorised the permit subject to select board approval.

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. 0:02
   Opening and order of business

   The chair, Barbara, called the meeting to order with five members and two alternates present, and dispensed with the pledge for want of a flag. She asked that the Riverbend conditional use appeal be taken first.

2. 0:02
   The chair's recusal from the junkyard matter

   Barbara had circulated notice that she would recuse herself from the second matter because of litigation history between the landowner and her family. She noted the board could challenge a recusal and require a vote, and used her authority under the ordinance to appoint alternate Paul to sit in her place. She also welcomed Heather, the second alternate, saying it was the first time in her tenure the board had had both.

3. 5:11
   Framework for the Riverbend appeal

   Barbara set out that the board sits purely in an appellate capacity, not de novo, under section 17.3 of the ordinance and section 7.6, which covers appeals of conditional use decisions. The board had the written record that was before the planning board and a copy of its final findings.

4. 5:11
   Why the appeal was still live

   Barbara (?) asked why an appeal from a decision issued on August 19th was filed in October. Code Enforcement Officer Bob Forest (?) explained that the ordinance requires written notification, that the planning board had not been sending its decisions out, and that he had put a letter in Mr. Hurling's mailbox on September 21st, which is what started the clock. He committed to sending out final findings as soon as he receives them from now on.

5. 10:18
   Finding the appeal timely

   With the dates on the record (findings dated August 19th, written notice September 21st, appeal filed October 20th) a member moved that the appeal be found timely. It was seconded by Terry and carried on a roll call.

6. 10:18
   The appellant's case

   Adam Lee, for Hurling's LLC, said his client had asked several previous code enforcement officers whether the landscaping business needed a conditional use permit and been told repeatedly that it did not. To stop loam and mulch piles running off and to tidy the site, the owner put up concrete blocks forming a wall to contain them, which drew a neighbour's complaint and a direction to apply for a conditional use permit.

7. 15:38
   Why the appellant says the bins are not a structure

   Adam Lee (?) argued the planning board erred in two ways: the blocks are either a wall, which the ordinance's definition of structure expressly excludes, or not a structure at all because they are movable, and it makes no difference whether they are moved by hand or by heavy equipment. He also argued the board fixed on the visibility of the blocks without allowing for the fence and plantings the application itself proposed.

8. 15:38
   The ambiguity argument

   Adam Lee cited case law for the proposition that Maine land use ordinances are in derogation of property rights, so where there are two possible readings the ambiguity must be resolved in the landowner's favour. Either the ordinance is unambiguous and these are not structures, he argued, or it is ambiguous and the board must find they are not.

9. 20:44
   Whether a permit is needed at all

   Asked whether he contested the need for a conditional use permit, Adam Lee (?) said containing materials already on site is not an expansion of the business. He explained that the detailed engineering plan submitted covered future expansion as well, on the reasoning that the owner might as well deal with everything at once.

10. 20:44
    What the planning board actually found

    A member read finding number five: that since the 2020 expansion including the concrete bins the property has generated significant complaints, that it generates roughly five times the traffic of a typical residential property, and that this is an undersized lot with a very intensive use out of character with the neighbourhood. The question put to the appellant was whether the denial stands even if the bins are not structures.

11. 25:58
    Two separate grounds for denial

    Members established that the planning board denied the application in two places: number five, scale and intensity of use, and number nine, compliance with ordinance requirements, which turns on the storage bins not meeting structure setbacks. The board's view was that number five is an alternative finding that never uses the word structure and would stand on its own.

12. 31:01
    More bins, more business

    A member asked whether the additional bins shown on the plan meant more traffic, loading and unloading. Adam Lee (?) said it means more contained material, not a change in the operation. He argued that if the planning board had denied on planned increases in activity that would be a different case, but it denied on bins that have been there for a while at the current volume of business.

13. 36:39
    The alternate's view

    Paul, asked to weigh in although he was not voting, said finding five is about intensity and scale and is independent of whether a bin is a structure. He noted the site plan shows fence along the front of the bin but the rest of the frontage open, that an abutter had written about looking across at the facility, and that screening is a matter of judgment. On the test that matters (did the planning board have enough information for its conclusion) he said it did and that its conclusion was fairly well supported.

14. 36:39
    What triggered the permit requirement

    A member observed that if a portable toilet had prompted the complaint the effect would have been the same: a complaint led the code officer to look at the land use history and find there was no conditional use permit for a commercial use in a rural residential district. On that view the bins were the occasion for the requirement rather than its cause.

15. 42:15
    Traffic safety versus compatibility

    Adam Lee pointed to planning board finding two, which found the use would not create unsafe traffic conditions and put the limit at not regularly exceeding 50 trips a day, and argued the volume question was therefore answered. Members disagreed that this settled finding five, distinguishing traffic safety, which is the town's police power, from compatibility with what neighbours are used to.

16. 47:21
    Setbacks and the right of way

    Bob Forest (?) said the blocks are about 10 feet off the road, that a commercial use would need a 100-foot setback which the lot cannot accommodate, and that even the 50-foot residential front setback is not met. Old Mill Road has a 50-foot right of way; whether the piles themselves sit within it could not be determined clearly from the survey. Members noted material cannot be piled within a certain distance of the town right of way whether or not it is a structure.

17. 47:21
    The fence and the height of the blocks

    A member asked whether the fence and screening had been discussed at the planning board hearing. Barbara recalled the abutting neighbour describing what he could see and a six-foot fence being proposed, though no finding was made on height. The blocks themselves are six feet, and the applicant said blocks could be taken off to lower them or a taller fence built.

18. 52:21
    Residential or commercial

    Terry (?) asked whether the property is residential or commercial. Members said that unless it is a home-based business it falls under item 23 of the land use table (personal service, retail, wholesale, business service and all other commercial services) regardless of how it started, and that a tenant living there does not stop there being a commercial operation. Adam Lee (?) objected that this was an issue raised by the board rather than decided by the planning board.

19. 52:21
    The code officer's letter

    Members read from Bob Forest's letter of March 24th 2020, which required the blocks to be removed from the public right of way within a week and a conditional use application to be filed by April 20th 2020. The letter also explained that existing home-based businesses were grandfathered but any expansion requires a conditional use permit from the planning board. Adam Lee and the board disagreed over whether the letter identified the bins as the sole trigger.

20. 57:44
    The board's limits, and a way forward for the owner

    A member said the planning board decides the facts and the appeals board has no factual basis on which to overturn it, only the legal question of whether the bins are a structure. He signalled he would move to sustain the planning board because there were other grounds of equal or greater weight in its decision, and urged the appellant to work with the town on a modified application addressing traffic trips, neighbourhood impact and screening rather than see the business closed.

21. 57:44
    Why one member would call it a structure

    Gary (?) said a structure is something built to contain something else, that the ordinance apparently lacks a definition he found decisive, and that something requiring heavy equipment to move and designed to stay put cannot lightly be called movable. He added that he was troubled by concrete blocks sitting up against the town right of way, which would be a hazard if the road were ever widened.

22. 1:02:44
    Reading the definition

    Dean (?) read the ordinance definition of structure (anything constructed or erected with a fixed location on or in the ground or attached to something with a fixed location, including driveways and walkways) and said it could not be anything else. Adam Lee pointed to the exclusion for fences and stone or brick walls used for area separation. Members answered that separating areas is different from containing material.

23. 1:08:11
    Motion on the meaning of structure

    A motion was made to interpret the bins containing landscaping material as structures within the meaning of the Durham ordinance, seconded by Terry. Barbara (?) said she would have preferred to decide the case on finding five alone because she likes narrow decisions, but accepted the argument that the legal question should be settled now so the owner is not sent back on appeal to have it decided later.

24. 1:13:29
    Motions on finding five and on the appeal

    A further motion was made that the planning board did not err in finding under paragraph five that the use was incompatible, on the basis that its finding rested on evidence in the record and was not contrary to it; put explicitly as an alternative ground so the written opinion could say so. That carried on a roll call, and a third motion to deny the appeal carried on a roll call as well.

25. 1:13:29
    The written decision

    Asked how soon a written decision would come, Barbara (?) said she has 30 days but would be quicker. She and Adam Lee discussed whether the appeal period runs from the vote or from the written decision, citing two cases pointing opposite ways, and she said she would circulate a draft for the board's feedback before it became final.

26. 1:23:10
    Second matter opened with the alternate seated

    Barbara signed off, Gary took the chair, and after a short break he appointed alternate Paul to sit as an active and voting member for the appeal of Kenneth Carl from the code enforcement officer's decision on the use of the property as a junkyard.

27. 1:23:10
    The code officer's case

    Bob Forest (?) said the property is on Royalsborough Road near the corner of Rabbit Road, that Ken Carl leases a 300 by 300 foot parcel from his mother for the junkyard, and that over the last couple of years the whole property has turned into a junkyard. He cited Carl for fencing: the requirement is a six-foot fence or a natural buffer screening the junkyard from view from the road, and the farmhouse area below is covered in material and unscreened.

28. 1:28:19
    The appellant's answer

    Ken Carl (?) said his 300 by 300 foot area is well screened by a natural berm and trees, and that the vehicles below belong to his stepfather Andrew Higgins, who has more than a dozen registered vehicles for ploughing and hauling. He said he has no control over property outside his designated area, that the junkyard rules require him to designate an area and draw it each year, and that he is a hobbyist rather than someone crushing and hauling cars.

29. 1:28:19
    Who should have been cited

    Gary (?) questioned why the appropriate parties were not the Higgins family, who own the land outside the leased area. Bob Forest (?) said he had gone back and forth on it, that he did not cite Priscilla Higgins because the permit is in Ken's name, and that in his eyes it was an expansion of the junkyard because Andy also stores material in Ken's area. He agreed he probably should have cited for an illegal junkyard instead.

30. 1:33:41
    The board's approach

    Gary (?) said the parties who need to be cited are Priscilla and Andrew Higgins, with some time allowed to consolidate and clear material given the cost of fencing such a large area. Ken Carl (?) said he had already worked with the code officer to move material back from the road for the 100-foot setback and could put up fencing and pull the overspill back into his 300 by 300 foot area.

31. 1:33:41
    Screening, permitting and setbacks

    Heather established that the spillover onto Carl's own abutting house lot is behind the junkyard and cannot be seen from the road, and asked about the permitting route; Bob Forest (?) said junkyard permits are signed by the select board on his inspection rather than going through conditional use review. Members also raised the 500-foot separation from a dwelling, which Bob Forest (?) read as applying to a neighbouring house rather than the operator's own.

32. 1:38:44
    How long the junkyard has been there

    Ken Carl (?) said material had been on the site since his father put it there in the 1970s and that the permit dates from around then. Members raised, without deciding, whether the use is permitted where it sits or grandfathered, and suggested Bob Forest check it with Carl. Bob Forest (?) noted the permit is applied for annually and that the selectmen have said anything short of full compliance means no renewal.

33. 1:43:46
    Decision on the junkyard appeal

    Asked what happens next, Bob Forest (?) said Carl currently has no permit and he would have to check with the selectmen whether it starts over or is extended. Gary (?) moved that the appeal be sustained and the code enforcement officer authorised to issue the junkyard permit subject to select board approval; it was seconded and carried on a roll call, which the chair announced as five to zero. The meeting ended shortly before eight.

What was decided

• 10:18
  Find that Riverbend's appeal is timely, on the basis that the planning board's written decision was not delivered to the owner until September 21st and the appeal was filed October 20th. Moved, seconded by Terry, and carried on a roll call in which each member answering voted in favour.passed
• 1:08:11
  Interpret the bins containing the landscaping material as structures within the meaning and language of the Durham ordinance. Moved and seconded by Terry, with the chair saying she would rather have decided the case without reaching the question. A voice vote was called but the result is not audible on the recording and no count was announced.outcome unclear
• 1:13:29
  Find that the planning board did not err in its paragraph five conclusion that the use is incompatible with the neighbourhood, that finding being based on evidence in the record and not contrary to it: taken as an alternative ground so it could be stated in the written opinion. Carried on a roll call of Dean, Milt, Terry, Gary and the chair.passed
• 1:13:29
  Deny Riverbend's appeal and let the planning board's denial of the conditional use application stand. Carried on a roll call.passed
• 1:23:10
  Seat alternate Paul as an active and voting member for the junkyard appeal in place of the chair, who had recused herself because of litigation history between the landowner and her family.passed
• 1:43:46
  Sustain Kenneth Carl's appeal and authorise the code enforcement officer to issue the junkyard permit to him, subject to the approval of the board of selectmen. Moved by Gary, seconded, and announced as carried five to zero.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.

Worth knowing

• 5:11
  The Riverbend appeal was only live because the planning board had not been sending out its written decisions. Its findings were dated August 19th, but the owner was not notified in writing until the code enforcement officer put a letter in his mailbox on September 21st, which is what started the appeal period. The code officer said the town would send final findings out from now on.
• 57:44
  The board held that it cannot revisit the planning board's factual findings, only legal error, and that the planning board's finding on scale and intensity of use (five times the traffic of a typical residential property on an undersized lot, out of character with the neighbourhood) stood on its own without reference to whether the concrete bins are structures. A member urged the owner to come back with a modified application addressing traffic, screening and neighbourhood impact rather than lose the business.
• 47:21
  The concrete blocks sit about 10 feet off Old Mill Road, which has a 50-foot right of way. The code enforcement officer said a commercial use would need a 100-foot front setback, which the lot cannot accommodate, and that even the 50-foot residential setback is not met. Whether the piles themselves fall inside the right of way could not be determined from the survey.
• 1:28:19
  On the junkyard appeal the board concluded the wrong party had been cited: Kenneth Carl controls only the leased 300 by 300 foot area, which is screened by a berm and trees, while the unscreened material below belongs to the landowners, Priscilla and Andrew Higgins. Code Enforcement Officer Bob Forest agreed he had gone back and forth and probably should have cited for an illegal junkyard instead.

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

Elsewhere

← 2020-05-07 Board of Appeals2020-12-22 Board of Appeals →All meetings