May 6, 2020 ~ Planning Board Meeting

2020-05-06 · Planning Board · 2:00:43 · watch on YouTube →

The Durham Planning Board met remotely on May 6, 2020, chaired by Ann, with a single application on the agenda: an after-the-fact conditional use request from James Hurling of Riverbend Landscaping for the business he has been running at 14 Mill Pond Road. The board found no permit on record for either Hurling's use or the trucking operation that preceded him, and accepted that he had been told by successive code enforcement officers that none was needed. Three abutters spoke, all objecting mainly to the concrete block bins visible from Royalsborough Road and asking for a taller fence and evergreen screening. The board told Hurling it could not proceed until a qualified surveyor delineates whether the corner of his lot falls in the resource protection zone, and on a straw poll took the position that the concrete bins are structures, which would put them under a 100-foot setback from every lot line on a 1.4-acre parcel. At the applicant's request the item was tabled to June 3. The board then set an administrative workshop for May 20, agreed that the board secretary should sign conditional use permits, and approved corrected minutes from April 22.

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. 0:03
   Opening and roll call

   The board said the Pledge of Allegiance remotely and the chair asked to move approval of the minutes to the next meeting because the meeting had started almost half an hour late, though the board came back to them at the end. Juliet Kaplinger, Wes Grover and Alan Purington answered the roll; John Simino had not joined yet. The chair noted that the only item, Riverbend Landscaping, was warned as an expansion of a non-conforming use but that she did not believe it was ever a legal non-conforming use.

2. 0:03
   How the business came to be there without a permit

   James Hurling (?) said the business was established in 2005 and that the code enforcement officer at the time, Dan Feny (?), told him no permits were needed. When he bought 14 Mill Pond Road, map 6 lot 102, which already had a trucking company operating on it, he asked a fill-in code officer and then Calvin (?) and was again told nothing was required, with the only concern being portable toilets for employees. Bob searched the file and could find no permit or conditional use approval for the earlier use either.

3. 5:27
   What is existing and what is proposed

   Hurling (?) said he put up the concrete bins to control material that had been dumped loose on the lot, and intends privacy fencing and screening so equipment is not an eyesore for the neighbours. The building housing Riverbend and a residential tenant, the paved area and the parking area near the well are all existing, the parking area since he moved in in 2017. He proposed permeable pavers beside the paved area for parking, plow storage and stormwater, and said the future garage shown on the plan was only sketched in to get equipment out of sight.

4. 10:36
   Operations, hours and the fenced storage area

   The operation would continue as it has, with two new areas for material and a fenced enclosure for plows, mowers, excavators, trailers and a dumpster. Crews start about 7 with some arriving around 6:30 and return between 5 and 6:30 in the spring, summer and autumn; service work on the vehicles is done off site and small equipment maintenance is done inside the shop. The only different hours are in winter if someone comes in mid-storm to collect a truck or swap a plow.

5. 15:50
   Wash water containment and the DEP conversation

   Hurling (?) said Fred Galant (?) of the Department of Environmental Protection had told him there are guidelines rather than laws for truck washing, and that he had proposed a surface drain on the pavement piped to a sealed storage tank to be pumped out. He also discovered the garage floor drains were not tied into the septic tank as he had assumed, and stopped using them; he intends to tie them in and seal the tank. A board member pressed on winter washing when the ground is frozen and salt-laden water could reach Mill Pond; Hurling (?) said washing could be done inside or over the contained pavement, and that DEP (?) told him no permit or certification was needed if he follows the rules.

6. 20:51
   Gravel area, catch basins, drainage and the well

   Juliet Kaplinger (?) asked what goes in the blank area beside the parking; Hurling (?) said gravel, for trucks pulling in for material and for employee parking moved off the paved area. He described two catch basins, one in the permeable paver area at the front and one at the septic tank in back. The paved area drains east toward Mill Pond and the rest of the site can be made to drain to the back; the drilled well serves both the business and a residential tenant.

7. 25:58
   Materials stored, distance to Mill Pond and the septic system

   Stored material is bark mulch and possibly loam, which DEP (?) asked be contained and tarped. Wes Grover (?) asked how the 251 feet from the property corner to Mill Pond on the plan was arrived at; Hurling (?) said Google Maps and his site evaluator, and acknowledged that measured across Mill Pond Road to the water it would be within 250 feet, though he said Mill Pond is about 4.1 acres and DEP (?) told him it is not listed as a great pond. He also reported the existing leach field is outdated hemlock plank below grade and will be abandoned, with a new 1,000-gallon tank and field sized for a four-bedroom house; the lot is in the aquifer protection zone.

8. 31:08
   Resource protection mapping questioned

   Hurling (?) said the site evaluator, Stephen Mardi (?), and DEP had both looked at maps rather than measuring on the ground and concluded the green resource protection area falls just off his lot. The chair said the tax map, which at least attempts to overlay resource protection, appears to catch the corner of his parcel, and that where Dyer Brook begins had not been settled. She noted the current ordinance version was voted in in December 2019 with similar shoreland definitions before that.

9. 31:08
   Public comment: Philip Laflam

   Philip Laflam of 808 Royalsborough Road, the abutter in front of the site, said he wishes Hurling well but that he came home one night to find what he calls the bunker in place.

10. 36:31
    Laflam's requests and the permit question

    Laflam (?) said the bins cost him a buyer for his house and asked that year-round foliage such as evergreens be planted close together on the westerly and northerly sides, in writing, after which he would have no objection. He asked whether Hurling already had a permit and was told there is none on record and that he appears to have been given bad information by past code enforcement officers. He also raised sightlines for children on the easterly side of the bins and said 1.4 acres seemed small for everything proposed; told of the planned fence, he said a fence tall enough and tight enough would satisfy him.

11. 36:31
    Jean Wendland on fence height and assurances

    Jean Wendland of 824 Royalsborough Road, whose back yard looks at the bins, asked how tall the fence would be and doubted six feet would screen the view from the yard or deck, having expected something taller from a conversation with Hurling the night before. Wendland (?) asked what assurance the neighbours have that the screening actually gets done, and supported evergreens on the north side. The chair said any approval would carry whatever conditions the board thinks the ordinance requires, and that enforcement from there is the code enforcement officer's job.

12. 41:44
    Third abutter and the applicant's response

    A neighbour at 22 Mill Pond Road (?) said he had also been surprised by the bins but that Hurling had explained the plan to him, the proposed fence seemed reasonable, and he was on board. Asked whether the board considers fence height, the chair said it can require six feet or more if that is what its standards need. Hurling (?) said he would take the neighbours' requests on board, could raise the fence a foot and add a berm, but was concerned that heavy evergreen planting on Laflam's side would be too shaded by existing trees; he also explained he wants equipment nearer the bins because vehicles speed over the hill and backing out is unsafe.

13. 47:02
    Photos, bin height and the chair's list of issues

    The bins are six feet tall, built of two-foot blocks, and no vegetation would be removed beyond one small leaning tree already taken down. Bob had photographed the site from the road; he was on the meeting by phone with no internet at home and agreed to email the photos to Hurling the next day, and he raised whether the blocks count as a structure with setbacks. The chair set out the questions: an undersized lot, an after-the-fact permit for the whole business, aquifer protection under article 10, whether resource protection applies, whether the bins are structures, and setbacks and parking, noting the future garage and, if they are structures, the bins would also need site plan review.

14. 52:37
    Resource protection definitions and the call for delineation

    The chair read the relevant definitions: within 250 feet of the upland edge of a freshwater wetland of ten or more acres, within 250 feet of the normal high water line of a great pond, defined as ten acres or more, and within 100 feet of the normal high water line of a stream shown on the USGS map, which Dyer Brook is. Juliet Kaplinger (?) said the resource protection map was drawn to show roughly where resources are, not a point on the ground, and that the board had decided someone qualified must delineate them for any property under review. Alan Purington agreed, saying the December adoption puts the burden on the landowner and the board has to be diligent.

15. 57:43
    Dyer Brook, the burden of proof, and the options

    John Simino (?) said Mill Pond is really an impoundment on Dyer Brook, which starts across Route 9 and runs to the river, and that while Google Earth suggests the 100 feet is met the board needs better documentation; Wes Grover agreed the board leans toward delineation in close cases. The chair told Hurling the burden is his, that the zoning map does not show his lot line so the tax map overlay is what suggests his corner is in the zone, and that if he is in resource protection she did not think his business would be allowed at all. The options given were to proceed that night and be denied, or come back with a survey.

16. 1:03:14
    Aquifer protection standards

    The lot is below minimum size but existing, no vegetation is being removed, and the only fuel on site is heating oil plus a transfer tank inside a truck. A board member said the proposed holding tanks answer his concern about where salt-laden wash water goes in winter, since it would be pumped out rather than reaching a leach field. Hurling (?) confirmed oil changes are done in the garage, that spills are absorbed and disposed of through a contractor, and that anything getting past that would reach the proposed catch basin, which is not yet drawn on the plan.

17. 1:03:14
    Are the concrete bins structures?

    The ordinance defines a structure as anything constructed or erected with a fixed location on or in the ground, excluding driveways, walkways, patios and other paved surfaces, fences, and stone or brick walls used for area separation and not part of a building. Hurling's application took the position that the bins fall within the stone or brick wall exclusion. Bob (?) said the blocks sit on six or eight inches of gravel and that the wording is somewhat vague, but confirmed that a shed delivered and set on crushed stone is a structure, adding that sheds under 200 square feet need no permit so some do not meet setbacks. John Simino (?) said the blocks are holding material in place rather than separating areas and so do not get the exclusion.

18. 1:08:19
    First straw poll and the 100-foot setback

    Members said the exclusion is aimed at property separation rather than a functional bin wall, one member would not commit either way, and Alan Purington (?) said he leaned toward calling it a containment area rather than a structure, a term the ordinance does not define. The chair put the informal count at about three and a half to one and a half. She then pointed out that if the bins are structures, a non-residential use in the rural residential district carries a 100-foot setback from the front, side and rear lot lines, which would also apply to the proposed garage.

19. 1:13:25
    Conditional use criteria reviewed

    Hurling (?) argued that a structure is something with a roof and four walls and that DEP does not treat the bins as structures; the chair replied that he is separating materials rather than areas and that the exclusion was written for a wall along a property line. She then went through the criteria: she wants the wash water containment drawn on the plot plan with written policies, agrees with DEP that the piles need covering and wants that in writing, and said scale and intensity of use must be compatible with the neighbourhood, so the more screening the better. Noise, hours and right, title and interest were treated as addressed; financial and technical ability had not been submitted.

20. 1:18:35
    Future garage, retention pond and the definition read out

    Asked to be black and white about what would actually be built, Hurling (?) said he would take the future garage off the plan entirely given the setback problem, and that he would like to do the retention pond. The chair read out the two pieces of resource protection, the boundary shown on the official zoning map and the shoreland zoning overlay. Hurling (?) asked why he must pay to prove something the map shows on his neighbour's corner; the chair said his lot line does not appear on the zoning map at all.

21. 1:18:35
    Why nothing was being voted on

    Hurling (?) asked why the board had not voted as it went through the items. The chair said the board would vote on the specific criteria and, on what she had heard, would find he did not meet them, which is why the board was offering him the chance to ask for the item to be tabled and come back with more information.

22. 1:23:50
    Applicant asks for a vote on the structure question

    Hurling (?) asked for a determination on the blocks and the chair offered a straw poll. The definition was read again and the argument turned on the words erected with a fixed location, with one view that blocks with no foundation can be moved and are therefore not fixed, against the point that blocks weighing two or three hundred pounds each and set on five inches of crushed gravel are fixed in practice.

23. 1:29:18
    Second straw poll and what it means for the application

    Polled in turn, Juliet Kaplinger leaned toward structure and Alan Purington, John Simino and the chair each said structure; Wes Grover had frozen and dropped off the call. Hurling (?) asked whether a survey was pointless if the application would be denied anyway; the chair said that if he is in resource protection the use is probably not allowed, and if he is not it is a conditional use but the bins would have to meet setbacks, which he said he cannot do on his lot. She added that even if the bins were not structures the board would still have to find no negative environmental impact and compatibility with the neighbourhood, and bare piles would still be a problem.

24. 1:34:20
    Options, road frontage and a possible variance

    The chair laid out three routes: rethink the layout and come back, get the survey and take a denial to the Zoning Board of Appeals, which has disagreed with the planning board before, or take a denial that night. The lot has 281.42 feet of road frontage. She also pointed Hurling to section 17.3 of the ordinance on dimensional variances, since the planning board has no ability to modify the setbacks but the ZBA can for hardship.

25. 1:39:23
    Administrative workshop set

    The chair proposed a workshop on three things: how the board handles documents, notices, decision forms and minutes, the conditional use application and decision forms she had drafted, and the subdivision documents George has been drafting. She said the ZBA had not been getting the board's record for appeals and the board was not always getting notices of appeals. The board settled on Wednesday May 20 at 5:30 by Zoom, with Kathy, Bob and Tammy confirming and George to be invited.

26. 1:44:37
    Signing conditional use permits

    Bob (?) said a family waiting on a conditional use permit for a daycare need the actual permit with conditions on it, not just the findings, to send to the state. Conditional use permits were supposed to be signed by the whole board and never were, and nothing in the ordinance requires any particular signature, so the chair proposed that Kathy sign as secretary certifying the permit accords with the board's findings and conditions.

27. 1:44:37
    Multi-unit dwellings missing from the land use table

    Bob (?) raised a homeowner with an old farmhouse containing two apartments who wants to add another unit, and said he could not find multi-unit in the ordinance. The board confirmed multi-unit dwellings fell out with the last revision, tied to the removal of the growth district where they had been the only permitted use, and that a definition survives under dwellings but the use is not in the land use table. Since any use not listed in the table is prohibited, the owner would have to ask the Zoning Board of Appeals to find the use similar to a two-family, which is still permitted.

28. 1:49:54
    Ordinance articles and town meeting timing

    A member asked when the items the board had prepared for town meeting would be voted on. The answer was that they were to be removed if there were an abbreviated town meeting, so the board is waiting on a rescheduled date.

29. 1:49:54
    Corrections to the April 22 minutes

    Alan Purington (?) asked that the minutes record everyone attending, not just board members, naming Bob and the applicants who spoke, and noted the MMA had issued a webinar on running these meetings. He also raised whether the minutes should say what became of the conditions after the motion, which the chair thought may belong on the findings and the permit instead, and corrected the record on the vice chair nomination. Members noted the recording of the April meeting broke up at the end and discussed what Zoom account the town holds.

30. 1:55:10
    What belongs in the minutes, and adjournment

    The chair said the board technically does not need minutes if it has a recording and that overlap between minutes and findings risks confusion, but Bob (?) said the minutes are sometimes the only place he can find things, citing the Mill Pond property where he searched the minutes and the file for a conditional use permit and found neither. She asked members to think about what should be in them ahead of the workshop, and about whether Kathy's time is better spent on other work than re-watching recordings. The board then adjourned.

What was decided

• 0:03
  Move approval of the minutes to the next meeting because the meeting began almost half an hour late. Members agreed, although the board in fact took the minutes up at the end of this meeting.passed
• 1:29:18
  On a non-binding straw poll taken for the applicant's guidance, the board took the position that the concrete block bins are structures under the ordinance rather than stone or brick walls used for area separation, and are therefore subject to the 100-foot setbacks that apply to a non-residential use. Juliet Kaplinger leaned that way and Alan Purington, John Simino and the chair each said structure; Wes Grover had dropped off the call. The chair said members were not committed to this position for the next meeting.passed
• 1:34:20
  Table the Riverbend Landscaping conditional use application to the June 3 meeting at the applicant's request, so that he can have the resource protection boundary surveyed and bring back details on the containment areas and a settled plan. Moved by Alan Purington, seconded by Juliet Kaplinger, with every vote recorded on the roll call in favour.tabled
• 1:39:23
  Hold an administrative workshop on Wednesday May 20 at 5:30 by Zoom, covering board procedure, the conditional use application and decision forms, and the subdivision documents, with Kathy, Bob and Tammy confirming and George to be invited. Agreed by the members present without a formal vote.passed
• 1:44:37
  Have Kathy sign conditional use permits as secretary of the board, certifying that the permit accords with the board's findings and conditions, rather than continuing to leave them unsigned. Agreed when the chair asked whether everyone was comfortable with the idea.passed
• 1:55:10
  Accept the April 22 minutes with two changes: that they reflect who was present or at least who participated, and that they record Alan Purington as having nominated Juliet Kaplinger for vice chair with the chair seconding. Carried on a roll call with Juliet Kaplinger, Wes Grover, Alan Purington, John Simino and Ann all voting yes.passed
• 1:55:10
  Adjourn. Carried on a roll call with all five members voting yes.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

• 47:02
  The board was handling an after-the-fact permit for an entire business. No permit exists on record for Riverbend Landscaping or for the trucking operation that used the lot before it, and Hurling (?) said three successive code enforcement officers told him he needed nothing. Both the chair and Bob accepted he had been given bad advice, which did not change what the ordinance now requires of him.
• 36:31
  Philip Laflam of 808 Royalsborough Road (?) told the board the concrete bins went up without warning and cost him a buyer for his house. He and a second abutter asked for evergreen screening on the north and west sides and a fence taller than the six feet proposed, and asked what assurance they would have that the screening actually got done.
• 1:08:19
  If the bins are structures, as the board's straw poll concluded, a non-residential use in the rural residential district must sit 100 feet from the front, side and rear lot lines. On a 1.4-acre lot with 281.42 feet of frontage the applicant said he cannot meet that, and the chair told him a variance from the Zoning Board of Appeals is the only route to modifying it.
• 1:44:37
  Multi-unit dwellings dropped out of the land use table in the last ordinance revision, having been permitted only in the growth district which the town removed, and the board has not put them back. Any use not listed in the table is prohibited, so a homeowner adding a third apartment to an existing two-apartment farmhouse would have to ask the Zoning Board of Appeals to treat it as similar to a two-family.

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 7 decisions summarised.

Elsewhere

← 2020-04-08 Planning Board2020-09-02 Planning Board →All meetings