Planning Board Meeting ~ November 2, 2016

2016-11-02 · Planning Board · 1:14:18 · watch on YouTube →

This was an ordinance workshop, opened by the chair as a meeting of the ordinance committee and described later in the session as an ordinance workshop rather than a planning board meeting. Most of the first half went to rewriting the sign ordinance so that no provision requires reading a sign to know how to regulate it, following a federal Supreme Court decision; the committee stripped out the off-site sign clause, the seven-day temporary sign rule and the identical-two-sided-sign rule, adopted the state temporary sign standard subject to Durham's tighter limits on size, height and illumination, and kept a flat exemption for flags. Six days before the state referendum, the committee asked Todd to carry a recommendation to the Select Board that the town enact the six-month moratorium the state law would allow on marijuana structures and uses. The second half worked through short-term rentals, which the code enforcement officer would treat as bed and breakfasts under the building code, accessory apartments, which were deferred until earlier work can be found, and inconsistencies in how the ordinance handles duplexes and multi-family dwellings. No formal votes were taken; a motion on the moratorium was begun and withdrawn when a member pointed out the body could not make one.

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. 0:10
   Why the sign ordinance has to be rewritten

   Paul, the code enforcement officer, had rewritten the signage section and circulated it against the existing ordinance. The reason is that a federal Supreme Court decision, referred to in the recording as the Reed case, means the content of a sign can no longer be the threshold for regulating it, because working out what a sign does requires reading it. Paul (?) said he had stripped out everything in the existing ordinance that would now violate federal law and kept as much else as he could.

2. 0:10
   Temporary signs and the election cycle

   The town's temporary sign language and the state's requirements around elections did not agree, so Paul's draft let the state rules take over during an election cycle. The state allows temporary signs in state rights of way, with rules on spacing, and those allowances cover municipal elections and referendums. He said the intent was to avoid the town fielding calls about a campaign sign on one side of a town road when the state rule does not reach that far.

3. 0:10
   Off-site signs: is there a problem to solve?

   A member said subsection two still targets content, because deciding whether a sign advertises related services or goods means reading it, and suggested it simply say no sign shall be located off the lot. Others asked what problem the clause solves at all, given the town already caps size and number and the state regulates billboards. Paul (?) said it was in the original ordinance and he had no idea why it should matter whether a business sign sits on its own property, since the owner would need permission in any case.

4. 5:10
   Existing size limits

   Members confirmed the current allowance is 24 square feet, which may be divided between no more than two signs, so a lot can carry one 24-square-foot sign or two 12-square-foot signs or any combination within the total. Someone (?) raised the run of signs leading to Rice's Christmas trees; another pointed out those are seasonal and sit in the public right of way, so they fall under temporary signage rather than this clause.

5. 5:10
   The state statute had already been changed

   A member read the current statute and found it no longer says six weeks before an election but any six weeks per calendar year. Members concluded the state took the election reference out deliberately, because targeting election signs means distinguishing on content. Paul (?) said he had worked from the older wording, which is why his draft used the election cycle.

6. 10:23
   One rule for temporary signs

   Rather than distinguish between state and town rights of way, members agreed to adopt the state standard for all temporary signage, on state roads, highways and town roads alike. The town can be more restrictive than the state and already is on illumination, height and size, so those limits would be preserved as exceptions. The seven-day temporary sign clause and the off-site sign clause were both to be deleted.

7. 10:23
   Two-sided signs

   The existing ordinance counts a sign with identical faces as one sign for the square footage limit, but confirming the faces are identical means reading both. Members said what matters is the size of the physical object rather than what is written on it, and that the clause distinguishing identical from different faces has to go.

8. 15:39
   Per lot rather than per applicant

   A member objected that limiting the allowance by applicant would give someone who owns two separate lots only one 24-square-foot sign between them. The committee agreed the allowance should run per lot.

9. 20:46
   The redrafted section

   The rewrite settled on: notwithstanding the state statute, no sign illuminated with flashing or moving lights, no sign exceeding 24 square feet, no permanent sign extending higher than 15 feet, and placement of temporary signs on town roads to comply with the state provisions. Government signs would be exempt, which members said works because the test is who erected the sign rather than what it says, and that also covers street signs and directional signs.

10. 20:46
    Flags

    The existing ordinance says flags are not signs. A member pointed out that removing that exemption would put the American and Marine Corps flags in his own yard in violation, and everyone else's too. Attempts to draw a line by flagpole, material, shape or who erected it all ran into the same content problem, and one member noted that treating an American flag differently from a campaign flag would itself be a problem.

11. 25:58
    Flags: leave the exemption alone

    The committee agreed to keep a flat exemption for flags, on the reasoning that a flag is a flag whatever it says and does not require reading to identify. Members acknowledged the loophole, that someone could hang a large flag rather than buy a sign, and agreed to deal with it if it ever became a problem.

12. 25:58
    Marijuana moratorium

    With the state referendum pending, the committee turned to whether Durham should enact a moratorium on structures and uses under the new law. The point was made repeatedly that a moratorium is not a ban but time to decide whether to district the use, regulate it, or leave it alone, and that without one it would be fair game. Paul (?) said the phone calls were already coming and that one company was set up and waiting to come in.

13. 31:02
    Length and mechanics of a moratorium

    Members took the state allowance to be six months, renewable with a second six-month moratorium. A member noted the state will not have licensing rules for at least nine months in any case, so nothing could open immediately, and that a conditional use permit could be conditioned on holding a state licence. The Select Board can enact the moratorium itself, but any permanent ordinance change would go to town meeting in April, and if town meeting does not approve it, the ordinance reverts.

14. 31:02
    How the recommendation goes forward

    A member began a motion that the planning board recommend a moratorium and withdrew it once it was pointed out that this is an ordinance workshop. The group settled instead on Todd raising it as a recommendation at the Select Board meeting the following Tuesday, and expected the board would ask Ruth to write moratorium language. Members also asked whether anyone could find them draft language from another town; Bangor was mentioned as having just passed one.

15. 36:12
    Accessory apartments raised

    Paul (?) said the town's current definition of an accessory apartment is significantly inadequate and that inquiries and pressure are increasing because rentals are now worth a lot. He had drafted a fuller definition for the committee to look at.

16. 36:12
    Short-term rentals under the building code

    Asked whether the town would try to regulate Airbnbs, Paul (?) said the mechanism already exists: they are an R-1 occupancy under the IBC, a residential occupancy containing sleeping units where occupants are primarily transient, which the committee took as under 30 days, and R-1 requires sprinklers. He put a vacation rental in the same class as a bed and breakfast, motel, hotel or rooming house.

17. 36:12
    Disagreement about owner-occupied houses

    A member objected that if she lives in her house all year and rents it out twice, the occupants are not primarily transient. Paul's answer was that the owner's own sleeping units do not come under the rule but any room rented does, so moving a child into another bedroom to rent theirs for a weekend crosses the threshold. The member said she disagreed with him.

18. 41:21
    How to handle short-term rentals in practice

    Members agreed the town cannot realistically police online listings and gets nowhere trying. The approach settled on was to keep a mechanism rather than a programme: if a complaint is made and substantiated, the operator gets a notice of violation requiring a conditional use permit as a bed and breakfast, with the structure having to comply with the R-1 rules, as the Royalsborough Inn does.

19. 41:21
    What other places are doing

    Members noted New York City had just prohibited short-term rentals outright, Rockland had passed temporary housing rules and Portland was considering something. Most of the activity is in coastal and recreational communities; Durham is not seeing much of it yet, which is part of why the committee did not want to write a detailed scheme.

20. 41:21
    Bed and breakfast definition

    The existing definition covers a commercial building accommodating travellers and other transient guests for a fee. Members agreed to strike commercial and simply say building, so it reaches residential, industrial and agricultural structures. Naming Airbnb in the ordinance was rejected as too specific, since the company could fold and be replaced.

21. 46:27
    Home occupation versus home-based business

    The draft used home occupation, but the ordinance defines home-based business in the use table and not home occupation. Members agreed the language should say home-based business throughout, and noted a home-based business is allowed if it meets the performance standards in article 4K, with a conditional use permit required if it does not.

22. 46:27
    Where accessory apartment rules belong

    A member objected that the committee had previously moved detail out of the accessory apartment definition and into the performance standards, and that the new draft puts performance standards back into the definition. She had no objection to the standards themselves, only to their location. Paul (?) said he had felt the definition needed more to it and had nowhere else to put it.

23. 51:48
    Accessory apartments on non-conforming lots

    The open policy question is whether an accessory apartment may be added to a lawfully non-conforming lot, for example a grandfathered house on an undersized lot or one sitting ten feet from a boundary. The current text bars accessory apartments where the non-conformity is one of use but permits them where it is dimensional. Members also flagged the confusion that adding housing to a lot triggers additional frontage and acreage requirements.

24. 51:48
    Accessory apartments deferred

    Members recalled earlier work on lot size and zone, recorded on a whiteboard and photographed, which nobody had to hand. Rather than repeat it, the committee agreed to leave accessory apartments until that work could be found. One member noted the earlier conclusion had been the odd result that an accessory apartment requires a bigger lot than a duplex would.

25. 57:07
    Duplex versus two family dwelling

    Paul had proposed replacing two family dwelling with duplex, because duplex is the term used in the spatial requirements. Members preferred to keep the sequence single family dwelling, two family dwelling, multi family dwelling and to fix the spatial requirements instead. Following a suggestion from Paul and Mindy, the definition of two family dwelling would say it does not include lawfully approved accessory apartments, so nobody can count an accessory apartment as a two family and avoid the extra acreage.

26. 57:07
    Conflict in the use table

    The use table shows multi family dwelling as permitted in Southwest Bend with code enforcement review only. Members pointed out that three or more units on a single lot must come in under subdivision review, so the table is in conflict with the rest of the ordinance and should require planning board review. The rural residential line, which appeared to allow multi family dwellings, turned out on a second look to say duplex only, which members were content with.

27. 1:02:19
    The three to six unit cap

    Members questioned why the multi family definition is limited to three to six units, since the same total could be built as more small buildings on a large enough lot. Arguments both ways were aired: that capping building size protects the residential character of Southwest Bend, and that subdivision review already gives the board screening and other tools with more oversight than a duplex gets. The committee agreed to leave the definition as it stands rather than risk unintended consequences.

28. 1:02:19
    Multi family dwelling or multi family housing

    Paul had changed multi family dwelling to multi family housing throughout his draft. A member preferred keeping dwelling to match single family dwelling and two family dwelling, and with nobody feeling strongly the committee kept dwelling.

29. 1:07:38
    General provisions

    Most of the general provisions section concerns paving, which members said belongs in the roads section, leaving only the sunset clause in the conditional use approval criteria. Members thought they had already dealt with it at a previous meeting but were not certain and agreed to check against the red-lined version.

30. 1:07:38
    Roads section and the master red line

    A member said she was working through the roads section slowly and carefully because it has so many pieces, and that Paul had flagged one of them. The committee agreed the next meeting should work directly from the latest red-lined master copy, displayed on a screen rather than on paper.

31. 1:12:42
    Next meeting

    The next meeting was confirmed for Monday, November 14 at 6:30 at the same location. Members noted it would be the last working session before the holidays, so the red line work needs to be done there, with Paul reviewing the document over the break and the committee resuming in January.

What was decided

• 10:23
  Delete the off-site sign clause and the seven-day temporary sign clause from the sign ordinance, both being provisions that cannot be applied without reading the sign. Agreed in discussion; this was a workshop and no motion or vote was taken.passed
• 10:23
  Adopt the state temporary sign standard for temporary signs on state roads, highways and town roads alike, rather than writing a separate local rule or distinguishing between state and town rights of way, while keeping Durham's more restrictive limits on illumination, height and size. Agreed in discussion; no vote was taken.passed
• 10:23
  Drop the rule that a sign with identical faces counts as one sign, and regulate the size of the physical object instead, since confirming the faces are identical requires reading them. Agreed in discussion; no vote was taken.passed
• 15:39
  Apply the 24 square foot sign allowance per lot rather than per applicant, so an owner of two lots is not limited to one allowance between them. Agreed in discussion; no vote was taken.passed
• 25:58
  Do NOT remove the existing exemption for flags from the sign ordinance. The committee agreed to keep it stated flatly, without qualifying by what the flag says, what it is made of or who erected it, because removing it would put ordinary flags across town in violation. Agreed in discussion; no vote was taken.passed
• 31:02
  Ask Todd to bring a recommendation to the Select Board at its next meeting that the town enact the six-month moratorium the state law would allow on structures and uses under the new marijuana law. A motion to this effect was begun and withdrawn when a member pointed out that this is an ordinance workshop and cannot make one, so no vote was taken and the recording records only the stated sense of the group.outcome unclear
• 41:21
  Do NOT write a separate regulation for short-term rentals. The committee agreed instead to rely on the existing bed and breakfast conditional use and the building code's R-1 occupancy requirements, acted on when a complaint is made and substantiated rather than sought out. Agreed in discussion; no vote was taken.passed
• 41:21
  Change the bed and breakfast definition from a commercial building to simply a building, so it reaches residential, industrial and agricultural structures, and do not name Airbnb in the ordinance. Agreed in discussion; no vote was taken.passed
• 46:27
  Use home-based business rather than home occupation in the ordinance, since home-based business is the term the ordinance defines. Agreed in discussion; no vote was taken.passed
• 51:48
  Do NOT settle the accessory apartment provisions at this meeting. Members agreed the performance standards belong in the standards section rather than the definition, and set the substance aside until the committee's earlier work on lot size and zoning can be found.tabled
• 57:07
  Keep two family dwelling rather than renaming it duplex, add to its definition that it does not include lawfully approved accessory apartments, and change the use table so multi family dwelling requires planning board review rather than code enforcement review, to match the requirement that three or more units on a lot come under subdivision review. Agreed in discussion; no vote was taken.passed
• 1:02:19
  Leave the multi family dwelling definition at three to six units rather than removing the upper limit, and keep the term multi family dwelling rather than changing it to multi family housing. Agreed in discussion; no vote was taken.passed
• 1:12:42
  Hold the next meeting on Monday, November 14 at 6:30 and work from the latest red-lined master copy of the ordinance displayed on screen, then break until January. Agreed in discussion; no vote was taken.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

• 0:10
  Durham cannot regulate a sign by what it says. A federal Supreme Court decision means every clause that requires reading a sign to apply it has to go, which took out the off-site business sign rule, the special treatment of election signs, and the rule counting a two-sided sign with identical faces as one. What survives are limits on the physical object: 24 square feet, no flashing or moving lights, and no permanent sign above 15 feet.
• 25:58
  Six days before the state referendum, the committee asked Todd to take a recommendation to the Select Board that Durham enact a six-month moratorium on marijuana structures and uses. Members were explicit that a moratorium is not a ban but time to decide whether to district or regulate the use. The code enforcement officer said calls were already coming in and one company was set up and waiting. Without a moratorium the use would be handled as an ordinary conditional use.
• 36:12
  The code enforcement officer's position is that a short-term rental is a bed and breakfast: an R-1 occupancy under the building code, because guests stay less than 30 days, which brings a sprinkler requirement. A member disagreed for an owner-occupied house rented a couple of weekends a year. The committee decided not to seek these out but to keep the conditional use route available when a complaint is substantiated.
• 51:48
  The ordinance currently makes an accessory apartment harder to build than a duplex, requiring more frontage and more acreage for the smaller addition, which members identified as the source of repeated confusion. Also unresolved is whether an accessory apartment may be added to a lawfully non-conforming lot, such as a grandfathered house on an undersized lot. Both were set aside until earlier committee work can be located.

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