Select Board Meeting ~ November 8, 2022

2022-11-08 · Select Board · 2:09:43 · watch on YouTube →

The Select Board met on election night, November 8, 2022, and gave most of the evening to reports rather than votes. Planning board chair John Talbot (?) described a conditional use approved for Celebration Tree Farm, a completeness review that found Deer Creek's final subdivision plan incomplete, and the survey the planning board put in front of voters that day on how Durham should respond to the state law requiring up to three dwelling units on a lot. Lois Kilby-Chesley pressed the board on a Union Church oversight committee it voted to form a year ago and has not formed, asked that $10,000 a year go back into a building restoration fund that has fallen from about $65,000 to about $12,000, and requested $100,000 of ARPA money for the church; the board questioned what the town gets for that spending and returned to the idea of moving the building to usable town land. Town planner George Thebarge (?) reported on three ordinance tracks, and the board restated firmly that the resource protection amendments must go to town meeting as two separate questions rather than one. On the capital plan the board told the road commissioner to raise the dump truck and stream crossing as their own articles rather than through a $200,000 reserve deposit, and the town manager reported that Durham's workers' compensation premium runs 113 percent above an average town.

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. 0:14
   Agenda amendments and public comment

   The chair moved board and commission comments out of public comment and made it item 3A, for reports from planning board chair John Talbot and Lois Kilby-Chesley of the historic district commission. He asked that anything about ARPA funds be held for item 5. No one came forward at public comment on other matters.

2. 0:14
   Planning board: Celebration Tree Farm

   John Talbot, of 636 Stackpole Road, reported the planning board approved a conditional use for Celebration Tree Farm to run agribusiness activities, covering the educational programming discussed earlier and no more than two music events a month, all finishing by 9 p.m. He said the applicants were conscious about noise for the neighbours and good to work with.

3. 0:14
   Deer Creek subdivision

   Deer Creek, the cluster subdivision on Route 9, returned with its final plan. The completeness review, which asks only whether everything required has been submitted rather than whether the board likes it, turned up several large missing items, so the board voted it incomplete; it can come back in December. A peer review of the submission by Gorrill Palmer, paid for by the developer, produced a list of items to work through including a Corps of Engineers permit for a stream crossing, and looked at whether the connection to Route 9 raises a traffic problem.

4. 0:14
   Housing survey put to voters

   Talbot (?) described the state law requiring towns to allow up to three living units on a single family lot, and the survey the planning board offered at the polls that day with three options, one of them simply the state law. He said most people who stopped by wanted it explained and were open-minded, one said outright he would vote no, and his sense is the town will be split.

5. 6:04
   How the survey will run

   Devin has the survey set up and is running tests, after which it will go live and be publicised on the Durham Blast. Once the planning board picks an option it will work with the select board on writing the article for April town meeting, with the required public hearing to follow, and Talbot (?) said tweaks are welcome now, citing one resident who asked whether the apartment option could be done with tiny houses.

6. 6:04
   Information for residents

   A board member said a survey and a public meeting do not let someone research and dig in on their own, and asked for an information packet or frequently asked questions on the website with an email contact for follow-up. Talbot (?) said nothing like that is planned but agreed it could be done with George's help. Members agreed that at town meeting confused voters vote no, and the aim is that nobody votes no for want of knowing.

7. 11:17
   The Union Church committee, a year on

   Lois Kilby-Chesley (?) said the board voted on November 23, 2021 to form a committee to track what the Union Church needs, that she asked in May where it was and was told the board would get back to her, and that a year has now passed with another year of deterioration. She said Calvin has told her the sills need replacing and that there is the six-inch hole in the sill reported in the newspaper a year ago. She noted she was told the work waited on a new town manager and that the town has since had three.

8. 11:17
   The building restoration fund

   Kilby-Chesley (?) said a restoration fund for town-owned buildings, covering the West Durham Methodist Church and the Union Church, once received $10,000 a year at town meeting and reached about $65,000 or $66,000, and now stands at about $12,000 because nothing has been added for years. Roughly $18,000 went on an emergency roof, which she called maintenance rather than restoration, and Jim Litchfield did work on the steeple. The commission asks that $10,000 go into this year's budget to start rebuilding the fund, since an unheated, damp building deteriorates faster.

9. 16:44
   Historic district commission's ordinance work

   The commission met George Thebarge on May 12 and October 6 and worked over the summer on article 12 and article 5.14 covering historic resources, aiming to align them and to clarify terms whose meaning currently depends on who is reading them. When the report came back in October the commission found many discrepancies with its own work, went through it line by line, and has documented comments on nearly every line.

10. 16:44
    Deferring changes to 2024

    The commission concluded there is not time to change the ordinances properly for 2023 and wants to bring changes to the town in 2024. It also believes it would need to meet the owners of the ten properties either on the National Register or identified by the Maine Historic Preservation Commission as eligible, and their abutters, before proposing changes.

11. 22:05
    What authority the commission actually has

    Kilby-Chesley (?) said one disagreement with the report is that it would do away with the historic district and make the commission advisory. Board members replied that it is already advisory: property owners in the district bring plans to it and it issues a certificate with recommendations, but the decision rests with the code enforcement officer and, beyond that, the planning board. She said that is not how the commission has been operating.

12. 22:05
    Expanding the commission's reach

    The report proposed replacing the district with a Durham Historic Preservation Commission overseeing the ten properties in town. The chair said there has been no direction from the board to expand the commission's purview, and that he personally will not support an ordinance putting restrictions on a property whose owner does not welcome them. He said the question needs a workshop rather than this forum.

13. 22:05
    The 25-foot buffer

    Kilby-Chesley (?) raised the existing ordinance provision creating a 25-foot buffer between a registered building and an abutter's property, which the codes officer and town planner told her runs from the property line onto the abutter's land. She asked what a buffer even means in that context, whether it is vehicles, hedges or height, and questioned whether an abutter's property should be restricted at all because the neighbour is historic.

14. 27:24
    How the commission's position changed

    A board member noted that the commission's wish to keep the district was not its view until a leadership change, after which a member who had voted in the affirmative asked for reconsideration and the commission re-voted. It was confirmed the commission is not seeking an ordinance change for 2023, though the town planner might still propose something.

15. 27:24
    ARPA request for the Union Church

    Kilby-Chesley (?) said that since the board decided only town projects and not non-profits are eligible for ARPA funds, the town-owned Union Church qualifies, and requested $100,000. The figure came from estimates Todd obtained from contractors in November 2021 putting painting alone at upwards of $25,000, plus sill replacement she said would exceed $25,000 if more than one sill is involved, based on the friends group's experience at the West Durham Methodist Church.

16. 27:24
    Foundation and the register

    Kilby-Chesley (?) said work three years ago replaced the missing granite foundation with concrete block, and that for a building on the register the appearance should match the style, which would mean granite. Members recalled the granite had been pushed down the hill toward the river long before and is now well out of reach.

17. 33:10
    What the town gets for the money

    The chair asked what purpose the $100,000 would serve, noting the Union Church has its own fund and that a municipal capital account already exists for any town building. He said the board stopped asking for money because it did not feel right to keep asking the town for a building that cannot do much given its position on the road, the lack of parking, and the absence of heat and plumbing, and questioned whether taxpayer money rather than grants and fundraising is the right vehicle.

18. 33:10
    The West Durham Methodist Church as a comparison

    Kilby-Chesley (?) said a town-owned building on the register carries a responsibility to maintain it, and that the alternative is what happened to the school on Bowie Hill Road, which fell into its foundation. She said the friends of the West Durham Methodist Church have raised $71,350 in grants and donations, expect to need about another $70,000, and will hand the building to the Durham Historical Society as agreed when it was sold to them for a dollar, for use as a small museum and lending library of antique books.

19. 38:42
    Who would apply for grants

    The Union Church's use was given to the Durham Historical Society by a town meeting article and it pays no rent; the contents on the first floor were donated by townspeople. Members noted grant applications ask who owns the building rather than who occupies it, so the town would have to be the applicant, but that the legwork should come from the historical society or the new committee. One member suggested a dollar-a-year lease as another route, letting the society step into the town's role for grant purposes.

20. 38:42
    Moving the building

    The chair said the committee's first job should be gathering the town's view of what the building could be and what residents would spend, since everyone favours preserving an old building until a figure is attached. He credited the town manager with the suggestion that if the building is to be genuinely usable it should be moved to town-owned land, possibly near the town centre. Members described the current access as horrendous with traffic going by, no parking and no practical place for a septic system without filling the embankment, and mentioned Swamp Road as another possible site.

21. 43:44
    Whether a registered building can be moved

    A member cautioned that federal guidelines for buildings on the register should be checked before any plan to move one. Later in the discussion someone reading the state historic preservation regulations confirmed movement is allowed if there is a plan, and members noted buildings are moved all the time precisely to preserve them.

22. 43:44
    Where the committee stands

    The chair said the committee's formation had been deferred first through the previous town manager's departure and then to let the new manager get through his first budget and town meeting, but that it now needs to get going within the next few months with a mission statement. Jerry (?) said he is going into budget season new and with a full plate, but is willing to help with grants and is already putting together an Efficiency Maine application. Kilby-Chesley (?) said she had not realised the committee was being held until after town meeting.

23. 48:44
    BYOB permit for the AmVets

    Chad Burke of 1043 Pinkham Brook Road (?) asked why the BYOB permit he dropped off last week was not on the agenda. He was told the board authorised the town manager to handle BYOB permits at its last meeting, so they no longer come to the board; the manager needs the fire chief and codes to look at it, and with the event on Friday (?) told him to come in the next day.

24. 48:44
    Town planner: where the ordinance work came from

    George Thebarge recapped the 2018 comprehensive plan, adopted unanimously at town meeting, which shifted away from the state's growth-area model toward keeping the whole town rural, getting into compliance with state development regulations and managing growth within the town's capabilities. The first job was overhauling a land use ordinance he described as unusable and unreadable, followed by giving the planning board workable tools for reviewing development proposals. He said the difference from a year ago is that the committees are now communicating with the select board, which he called hard communication but good communication.

25. 54:37
    Three tracks in progress

    Thebarge listed affordable housing, imposed by the new state law and also recommended in the comprehensive plan once the growth area with its multi-family allowance was removed; the resource protection district, based in large part on bad data from outdated sources, whose failure at last year's town meeting he attributed to disagreement about procedure rather than substance; and the historic district commission's overlapping jurisdictions among commission, code officer and planning board, which he said has produced conflict and an unclear system.

26. 54:37
    Proposed ordinance committee

    Thebarge and Jerry (?) proposed a standing arrangement rather than a new committee: the chairs of the planning board, board of appeals, historic district commission, conservation commission and any group that administers ordinances would meet twice a year, just after town meeting to review what passed and failed, set priorities and assign work, and again after Labor Day to report to the select board on what should go on the ballot. Members liked it, one comparing it to a department head meeting, and were relieved it does not mean recruiting more volunteers.

27. 54:37
    One question or two on resource protection

    Thebarge (?) said the conservation commission is still struggling with whether phases one and two should be one warrant question or two, and suggested putting that to residents as a survey question alongside the housing survey. The chair said that is too far into the process to survey and feels too finite a question, and that voters would be voting on the questions themselves rather than on how many there should be.

28. 1:00:03
    The chair's objection to combining them

    The chair said the conservation commission's concern is that residents will vote to take land out of resource protection but not to put land in, so it wants the two linked. He called holding property owners hostage over a map error unethical: where land is shown as resource protection that plainly does not meet the criteria, fixing that error should not be conditioned on other land going in. He said no survey result would change his position, and other members agreed there should be two questions.

29. 1:00:03
    Whose decision it is

    Members noted the conservation commission accepted the delegation from the planning board because the subject is its area of expertise, but that it is not a decision-making or quasi-judicial body, and it is the select board that approves the wording of warrant questions. Thebarge (?) said the commission is not opposing the split, only still wrestling with it.

30. 1:05:06
    State of the drafting

    Thebarge (?) said the map amendments for both resource protection phases are drafted and the language ready, the three affordable housing alternatives are still in progress, and research is done on all three topics even though the historic district work is on hold. The conservation commission has scheduled a public informational meeting, and postcards are to go to affected property owners.

31. 1:05:06
    Back lot roads

    Talbot had heard at the polls that day that building a road to a back lot costs about $100,000 and that residents call it unsustainable. The idea of allowing a 16-foot driveway for a single back lot was undercut by the state law requiring at least two units. The staff position now is to simplify and clarify how a private road outside a subdivision gets approved, since the code officer, road commissioner and planning board all currently have to agree on what amounts to a common driveway, and to include the clarification that a road can only be accepted at town meeting.

32. 1:10:21
    Why a mislabelled property is not simply corrected

    A member asked why property wrongly shown in resource protection is not just taken out. Members recalled a board of appeals case the appellant won because the criteria did not put the land in resource protection even though the map did, and a later one where the appeals board questioned whether it had authority to change the zoning map and declined to supersede the legislative process. Thebarge (?) added that a mislabelled area may still have some natural resource basis for protection, and that resource protection is the most restrictive of several tools alongside cluster subdivision open space, land acquisition and voluntary donation.

33. 1:10:21
    ARPA input: the Eureka Center

    A resident said he had planned to speak about the Union Church but that there is no plan there to reach a conclusion, and spoke instead for spending ARPA money on the Eureka Center, where the underpinning or lolly columns may not be supporting the floor. If it is to become a meeting room he urged paving the parking area, which would also stop people using the gravel as ammunition against the building, and checking whether the restroom is ADA compliant. He said the funds should go to things the town already has rather than something that does not exist.

34. 1:10:21
    Office space

    Members said that if the Eureka Center became the meeting room, the meeting room at the town office could be converted into perhaps two offices to relieve crowding, with about three people currently in a space of roughly eight by ten feet.

35. 1:15:58
    Quint refurbishment

    The fire chief asked that the Quint refurbishment be moved from 2024 to 2023 and budgeted at $125,000, citing a 30-year industry lifespan for a ladder truck and a refurbishment that should add seven to ten years. He reported the Quint and the department's 14 portable ladders had just been certified by an independent company for under $900, with the inspectors impressed by the truck's condition, and said replacing the truck new would start at a million dollars on a two-year build.

36. 1:15:58
    Renaming the cost column

    The board agreed to change the schedule's column heading from new cost to estimated cost, because before this chief arrived nobody had raised refurbishment as a possibility and every line assumed replacement.

37. 1:21:50
    Codes office request pulled

    The codes officer's proposal arrived at 3:30 the previous afternoon and was left out of the packet. The board wants the specifics on which scanner and what it costs, and had confirmed the municipal capital account holds about $97,000. The fire chief is also preparing a request on generators that did not work properly during the recent storm.

38. 1:21:50
    The $200,000 public works reserve request

    The request had been raised to $200,000 because the reserve balance ran into the red on the spreadsheet, and members noted ARPA funds cannot be used for reserves. The chair objected that it makes no sense to tax residents $200,000 into capital reserves and then, on the same warrant, vote to take $255,000 back out for a dump truck and a stream crossing. His view was that red simply signals the reserves cannot cover the items, so those should be raised directly.

39. 1:27:15
    How the requests should be structured

    The board's conclusion was to raise the stream crossing and the roughly $105,000 dump truck as their own questions, since ARPA cannot be used against a grant on the crossing and there is not enough in reserves for the truck, and then to ask separately for perhaps $50,000 to $100,000 to build the reserve balance above the roughly $65,000 that will remain. Calvin (?) said he had it that way at first and changed it to avoid showing a negative balance.

40. 1:27:15
    Leasing trucks

    The chair and Jerry (?) raised lease-to-own on trucks as a way to spread a $250,000 purchase over five years and ease the cash flow problem that has Durham borrowing on a tax anticipation note in June to get through its expenses. They agreed 2023 is too soon and that it should be looked at for 2024, with Jerry offering to bring in someone from the bank to explain it.

41. 1:32:27
    Where the stream crossing money went

    A member could not find on the spreadsheet the money already raised for the stream crossing. Reading last year's warrant, the article raised $101,000 as the municipal share for stream crossing culvert replacements on Swamp Road and Quaker Meeting House Road against a state share of $250,000. It emerged the $101,000 never got moved into the assigned public works capital fund, so it was missing from the reserve balance, and members agreed it should be shown there.

42. 1:37:27
    The project has shrunk and the price has risen

    The two crossings became cost prohibitive, so only one will be done; members said the second needs far more engineering and there is no ask on the table for it. The remaining single crossing was put at about $300,000 against the earlier estimate, with the current state application at $125,000 or $150,000 depending on which figure members read, so the additional request would be roughly $49,000. The town attorney had previously advised that money approved for two crossings can be spent on one so long as it is the same type of work.

43. 1:42:29
    Risk on the bid

    The engineer and Calvin settled on $300,000 as a comfortable figure based on the last bid and subsequent permitting changes, with bids expected around the first of the year, before town meeting. Members said they will not go back for money a third time and that if the bids come in far higher the town could decide not to proceed and return the grant, though that may itself need a town vote since $101,000 was collected for the purpose. They also noted the project is voluntary rather than mandated and that the safety issue is no longer there, and that the progression from the original figures to $300,000 must be explained plainly at town meeting.

44. 1:47:55
    ARPA spending to date

    Jerry (?) reported that articles three, four, five and six at the special town meeting totalled $118,730, of which $51,017.56 has been spent, leaving $67,712.44. The total ARPA award is $422,213.87, with about $371,000 not yet spent or committed. Eight computers have been bought and are at BEK being set up, and the town office and fire station HVAC and insulation came to $46,284.16, with the insulation ending up 18 inches deep.

45. 1:47:55
    Unspent article money

    The board confirmed that any funds left unspent on each of the four special town meeting articles return to the ARPA pool, and that it will want those figures when it decides how to fund budget and capital items.

46. 1:52:57
    Liability for an ice rink

    Jerry checked with MMA on an ice rink and reported that unimproved town property is protected under the tort claims act, as are land, buildings, structures, facilities and equipment designed primarily for public outdoor recreation. Flooding an area for a rink does not count as improving it, so the town is covered short of real negligence.

47. 1:52:57
    Workers' compensation costs

    Jerry (?) reported Durham pays roughly 113 percent more than an average town for workers' compensation, about $96,000 to $98,000 a year where it should be around $55,000, described as a factor of 2.13 against an average of 1. He attributed it to claims, which stay on the books three years, and to the town having no return-to-work policy; the fire department has one, and he has an MMA model policy to bring to the board to adopt.

48. 1:57:57
    MMA safety incentive program

    The program has three tiers worth 5, 7.5 and 10 percent off the rate, and Jerry (?) said the town already does much of what they require but has never told MMA. The fire chief already holds safety committee meetings, but Calvin has not been part of them and leadership has to attend, minutes have to be taken, and incident reports filled out. He asked the board to sign the attestation so he can file it, and noted rates vary by class, about 10.48 for fire, 0.38 for office workers and public works in between.

49. 1:57:57
    The $16,000 audit bill

    Jerry (?) said an unexplained $16,000 bill from MMA prompted the investigation. MMA asks each year for an estimate of wages and, having tried between January and April last year to reach someone at the town and got no response, adjusted the estimate up 20 percent. Now that MMA has the actual figures he expects the town to get back more than $16,000, and he noted insurers routinely add 20 or 30 percent when nobody responds.

50. 2:03:26
    Paying premiums off actual payroll

    A member described paying his own workers' compensation weekly off actual payroll so there are no surprises either way, and suggested the town ask MMA whether it can pay quarterly against actual payroll rather than an annual estimate. The town currently pays quarterly against an estimate and settles up at year end.

51. 2:03:26
    Election day workload

    Jerry (?) reported more than half of Durham's registered voters turned out that day, which he and members called unprecedented, and gave the staff a shout out. The strain meant Jessica could not get petition signatures certified in time and was in contact with the Secretary of State, and one petitioner told her to do her job. Members discussed setting up the meeting room as the voting room for the presidential election and recruiting volunteers, and looking at whether early voting can be handled differently from in-person absentee voting.

52. 2:08:39
    Consent agenda, upcoming meetings and adjournment

    The chair called for a motion to approve the consent agenda as presented. Meetings were announced for November 22 and December 13 at 6:30 p.m. at Town Hall, no executive session was needed, and members were reminded to sign the warrant before leaving.

What was decided

• 0:14
  Agenda amended to move board and commission comments out of public comment and make them item 3A, with ARPA comments held for item 5.passed
• 6:04
  No vote was taken on the planning board's housing survey, which was brought as a check-in. The board asked that an information page or frequently asked questions with an email contact be put on the town website alongside the survey, and Talbot agreed to work that out with George Thebarge.passed
• 27:24
  No action was taken on the Union Church. The board said it would form the oversight committee it voted for in November 2021 within the next few months, with a mission statement, and that the committee's first job would be establishing the town's vision for the building. The $100,000 ARPA request and the $10,000 restoration fund request were not voted on.tabled
• 27:24
  The historic district commission's proposed ordinance changes will not go forward for 2023 and are deferred toward 2024 at the commission's request, though the town planner may still bring something. Members suggested a workshop on the commission's role and authority.tabled
• 54:37
  Board endorsed, without a formal vote, the town planner's ordinance committee concept: the chairs of the planning board, board of appeals, historic district commission, conservation commission and other bodies administering ordinances meeting twice a year, after town meeting to set priorities and after Labor Day to report on what should go on the ballot.passed
• 1:00:03
  Board restated, without a formal vote, that the resource protection amendments must go to town meeting as two separate questions rather than one combined question, and rejected the suggestion of putting that procedural choice to residents in a survey. Members said correcting a map error on a property should not be conditioned on other land being added to resource protection.passed
• 1:21:50
  The codes office request was pulled from the CIP packet because the proposal arrived at 3:30 the previous day, pending specifics on which scanner and what it costs.tabled
• 1:27:15
  Board directed that the public works capital requests be restructured. Rather than raising $200,000 into capital reserves and then drawing it straight back out on the same warrant, the dump truck and the stream crossing are to be raised as their own articles, with a separate and smaller request to build the reserve balance above what remains.passed
• 1:27:15
  Lease-to-own financing for public works trucks was deferred to the 2024 cycle rather than 2023, with Jerry to bring in someone from the bank to explain how it would work.tabled
• 1:42:29
  Board agreed the capital improvement packet, with the corrections discussed, goes to the CIP committee for prioritisation, after which the committee reports back and the board decides how far down the list to go and how to fund it.passed
• 1:57:57
  Board agreed to sign the MMA safety incentive attestation so the town manager can file it, on the basis that the town already meets the first tier through the fire department's safety committee work and Maine Department of Labor compliance but has never told its insurer.passed
• 2:08:39
  Motion to approve the consent agenda as presented. The recording captures the chair entertaining the motion and the word favour, but no result is stated before the meeting moves on to announcements.outcome unclear
• 2:08:39
  Motion to adjourn, moved by Rich and seconded by Joe; the chair called for all in favour and declared the meeting adjourned.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

• 1:52:57
  Durham pays roughly 113 percent more for workers' compensation than an average town, about $96,000 to $98,000 a year where the town manager put the expected figure at around $55,000. He attributed it to claims that stay on the books three years and to the absence of a return-to-work policy, and reported a $16,000 audit bill that arose because MMA could not reach anyone at the town between January and April last year and raised its wage estimate 20 percent.
• 11:17
  The town's building restoration fund has fallen from about $65,000 to about $12,000 with nothing added for years, while the Union Church's sills have a six-inch hole. The historic district commission asked for $10,000 a year back in the budget and $100,000 of ARPA money; the board questioned what the town gets for it given the building has no heat, no plumbing and no parking, and returned to the idea of moving it to usable town land.
• 54:37
  Durham has until next July to adopt its own approach to the state law requiring up to three dwelling units on a lot, or the state's multi-family zoning applies automatically. The planning board put a three-option survey to voters at the polls on election day and expects opinion to be split.
• 1:37:27
  The town raised $101,000 last year toward culvert stream crossings on Swamp Road and Quaker Meeting House Road, against a $250,000 state share. Permitting changes made doing both cost prohibitive, so only one will proceed at an estimated $300,000, and the town will be asked for roughly $49,000 more. The $101,000 was also found never to have been moved into the public works capital fund.

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: 1 passage of motion language, against 13 decisions summarised.

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