Planning Board Meeting ~ December 7, 2022

2022-12-07 · Planning Board · 1:48:13 · watch on YouTube →

The Planning Board took up two subdivision applications and then returned to its work on the affordable housing warrant article. The final plan application for the Deer Creek Crossing subdivision (map 7, lot 32A) was reviewed for completeness for a second time; three outside agency permits were still missing and the applicant had filed no request to waive their submission. A motion to find that application substantially complete on condition the permits arrive did not pass, and the board then voted to find it incomplete, so the substantive review did not begin. The board granted a procedural waiver for an amendment to the Brown Road subdivision (map 1, lot 9A), found that application complete, granted three waivers, adopted findings of fact one criterion at a time and approved the final plan with conditions. The rest of the meeting was spent on how to put the housing options before town meeting, with the town planner and members leaning toward the comprehensive plan option backed by a fallback article that adopts the state minimum. The next meeting was set for January 4, 2023, when officers are also to be elected.

What was discussed

1. 0:07
   Quorum, agenda and minutes

   The chair counted four members present at the start: Ron Williams, Juliet Caplinger, Allan Purinton and John Talbot. No amendments to the agenda were offered, and the minutes of the November 2, 2022 meeting were moved, seconded and approved. Tyler Hutchison arrived during the planner's report, giving the board five members.

2. 0:07
   Town planner's report

   George Thebarge reported that the Conservation Commission had held a public informational meeting the previous night on draft amendments to the zoning map that would recalibrate the town's resource protection areas to the data in the 2018 comprehensive plan, attended by about 30 people, as part of the process the board discussed in June in preparation for town meeting. He also said the consultant preparing the town's GIS tax maps expects to deliver digital tax maps for the first time, to be posted on the town website so residents can reach assessment data, correcting himself from a couple of months to a couple of weeks.

3. 0:07
   Deer Creek Crossing completeness review opened

   The board resumed the completeness review of the final plan application for the Deer Creek Crossing subdivision, map 7 lot 32A; public comment was not taken. The application had been found incomplete on November 2 over four items: DEP approval for the new stream crossing and removal of the old one, Army Corps approval, the MDOT entrance permit, and the assessor map and lot number. Only the map and lot number had been supplied; the applicant had filed copies of the DEP and Army Corps applications and a DEP stormwater permit, but no request to waive the submission requirement.

4. 0:07
   Applicant on the three pending permits

   The applicant's engineer said the three approvals were still pending and pointed to a culvert washout as bad timing, because the state had sent the matter to its engineers and was now concerned about culverts generally. He said the outstanding items were a timing question rather than a change to the plan.

5. 6:08
   Applicant describes the site design

   The engineer said the road follows the existing road and the stormwater pond sits on the gravel area at the existing crossing to keep disturbance down, acknowledging that the pond is within 75 feet of the stream. He said a ditch has been graded that should drain abutters' back yards, which had been flooding.

6. 6:08
   Request for conditional approval rather than a waiver

   The engineer asked the board to condition a final approval on later receipt of the DEP, MDOT and Army Corps permits, saying he could not waive permits required by law. A board member suggested not running a waiver process and instead conditioning approval on satisfactory submission of the three items.

7. 11:20
   Ordinance sections read into the discussion

   George Thebarge read section 6.8 C, which requires DEP, Army Corps section 404 and MDOT approvals in writing before the final plan application is submitted, along with review comments from Inland Fisheries and Wildlife and the Maine Historic Preservation Commission, which had been supplied. He then read the waiver provision at section 6.35 and said the board could either condition approval by holding the recording plan or hold the applicant to the ordinance's submission requirement.

8. 11:20
   Objection to proceeding before the agencies respond

   Juliet Caplinger said she was not in favor of letting the application go forward until the agencies responded. Thebarge added that public concern about environmental impacts had been raised at the preliminary stage and that the board had relied on the state permit reviews as part of the basis for preliminary approval. Tyler Hutchison, asked for his view, said he leaned toward Ron Williams and Allan Purinton's position that a condition would be acceptable.

9. 16:59
   How a condition of approval would work

   Thebarge compared it to the earlier waiver on survey monuments and said the condition would read that the recording plan is not released until the three permits are submitted. Members noted this could mean the agencies are not heard from until after final approval.

10. 16:59
    Peer review status and permit timing

    The peer reviewer had produced a shortened list but still saw unresolved design issues, and Thebarge said the burden of proof rests on the applicant to show why the town's engineer is wrong. The applicant said he hoped for the MDOT permit that week and had resubmitted the NRPA application that morning.

11. 22:12
    What work could proceed, and culvert sizing

    The board asked what the applicant could do with the three reports outstanding; the answer was surveying and layout work. The engineer said the stream is under two feet wide and he has specified a 60-inch culvert, and that a change in culvert size would not alter his stormwater calculations.

12. 22:12
    Exchange over interruptions

    The chair told the applicant's engineer not to speak that way to board members after repeated interruptions during the discussion.

13. 22:12
    MDOT position on alignment and Route 9 stormwater

    The engineer said MDOT had raised no problem with the entrance alignment by telephone, and that the peer reviewer had also accepted the alignment, but that MDOT now wants its engineers to review stormwater along Route 9 after a culvert washed out there. The chair said he did not want to set a precedent of accepting telephone calls in place of permits.

14. 27:40
    Votes on Deer Creek Crossing completeness

    A motion to find the application substantially complete conditional on receiving the three permits was moved, seconded and voted, and did not pass. A second motion to find the application incomplete was then moved, seconded and voted. A member reiterated that the ordinance, not the board's opinion of the project, requires the permits before an application is complete.

15. 27:40
    New business: Brown Road subdivision amendment

    The board took up the final plan application to amend the Brown Road subdivision, map 1 lot 9A. Kevin Clark of Sitelines appeared as agent for the applicants James and Grace Cullum, with Mr Cullum present.

16. 33:34
    Request for a procedural waiver

    The applicant asked to waive the sketch and preliminary plan steps and go straight to final plan review. Thebarge explained that many towns have a minor subdivision track for three or fewer lots, and that Durham followed the state model regulations in handling such cases individually through a procedural waiver.

17. 33:34
    Why board approval is needed at all

    Under Maine law splitting one lot into two would not normally require subdivision approval, but town records show a 1996 subdivision plan created this lot, so the land is part of an approved subdivision and cannot be changed without a further planning board approval. Thebarge offered two theories for why the 1996 division was treated as a subdivision, including the discontinued Grant Road creating a third parcel.

18. 33:34
    Which registry holds the 1996 plan

    A member questioned a reference to the Cumberland County Registry of Deeds, saying the property is in Androscoggin County, with Brown Road near the county line. An Androscoggin book and page were cited from the floor but the figures are indistinct in the recording; Thebarge later acknowledged a typo in his materials on this point.

19. 39:11
    The proposed division

    The existing lot of about 6.4 acres would be split into a parcel of 2.07 acres to be conveyed and 4.33 acres retained. Thebarge noted some towns, including Topsham, now allow such divisions without an amendment once five years have passed since the original approval.

20. 39:11
    Procedural waiver criteria and vote

    The board went through the four conditions for the procedural waiver: no new streets, no DEP approvals required, board agreement to waive the stormwater management and erosion control plan submissions, and all other applicable preliminary and final submissions present. It was noted that the stormwater plan language would have to be carried into one of the other waiver requests.

21. 39:11
    Completeness review of the Brown Road application

    The board turned to the applicant's completed submission checklist, which marked several requirements aimed at larger projects, such as a bank letter of commitment for infrastructure costs, as not applicable.

22. 45:01
    Checklist questions

    A member asked about the flood areas entry; the answer was that the property is in zone X, which is not a flood hazard area. Members also discussed a small pond off the northwest corner of the property, on the adjoining lot.

23. 45:01
    Application found complete; substantive review opens

    With the application accepted as complete the board began the substantive review. Thebarge said the lots meet the 90,000 square foot minimum and the road frontage requirement, that a test pit passes the state plumbing code with a groundwater restrictive layer 18 inches down, and that slopes on the lot present no erosion problem.

24. 50:10
    Fire protection waiver and residential sprinklers

    The applicant asked to waive the on-site cistern requirement of 30,000 gallons that applies to multi-lot subdivisions, offering instead to accept a condition that the house built on the new lot have a residential sprinkler system. Thebarge said the fire chief is satisfied with that.

25. 50:10
    Well exclusion zone and stormwater waivers explained

    The second waiver sought was from the requirement to show a well exclusion zone on the plan, the 100 foot separation between wells and septic systems still applying under the state plumbing code. Thebarge explained the zones matter most on dense or cluster lots. The applicant confirmed no construction is proposed; the lot is simply to be sold.

26. 55:47
    Order of waivers and notation on the plan

    The board clarified that only the procedural waiver had been granted so far and that two performance standard waivers remained, one of which had to be widened to cover the stormwater management plan. Members confirmed the waivers granted on standards, not procedures, must be recorded on the subdivision plan, and that the sprinkler requirement binds whoever buys the lot and builds.

27. 1:01:49
    Well exclusion zone waiver discussed and voted

    Members said the neighbouring lots are already developed and that requiring the exclusion zone here seemed excessive. Thebarge noted that code enforcement issues septic permits and checks the 100 foot separation at that stage, but does not review house or well siting through a site plan.

28. 1:01:49
    Findings of fact procedure

    Thebarge said draft findings covering each review criterion were at pages 92 to 97 of the packet, with the applicant's own justification copied into each, and that the board should move and vote on them one at a time. Several minutes were lost to confusion over packet pagination before the findings were put on screen.

29. 1:07:09
    Findings on pollution, sufficient water and erosion

    A member questioned how the board can know a subdivision has sufficient water for its reasonably foreseeable needs. Thebarge said the standard comes from state statute, that it bites where an area has dry wells or a high density or commercial withdrawal is proposed, and that a state map of well yields in gallons per minute is one reference; a hydrogeologic study could be required where there is doubt. The sufficient water finding was taken to include the fire protection waiver and the residential sprinkler requirement.

30. 1:07:09
    Findings on traffic and sewage disposal

    The traffic finding rested on the project adding one driveway on Brown Road. The sewage finding rested on the submitted soil test meeting the state plumbing code.

31. 1:12:17
    Remaining findings taken one at a time

    The board worked through municipal solid waste, aesthetic and cultural and natural values with a 50 foot vegetative buffer along the road and no sensitive resources in the state inventories, conformity with local ordinances, financial and technical capacity, surface waters, groundwater, flood areas, freshwater wetlands, farmland and streams. The stormwater finding was amended from stating the project is exempt to stating it has received a waiver from the stormwater management requirements.

32. 1:17:40
    Final findings and approval of the Brown Road amendment

    The board completed the findings on spaghetti lots, great pond phosphorus with Runaround Pond identified as the town's only great pond and outside this watershed, impact on adjoining municipalities, and liquidation harvesting. It then approved the final plan with the drafted conditions plus a requirement that the three performance standard waivers appear on the recorded subdivision plan.

33. 1:17:40
    Affordable housing warrant article: timing

    The chair said the board should be ready at the January meeting to recommend what the warrant article should say, after the informational meeting, the survey and conversations at the local election. He reported the Select Board's advice that the public hearing cannot be held more than 30 days before town meeting, which places it in the first week of March, and Thebarge noted nothing prevents holding more than one hearing. The survey stood at 195 responses, which members said showed no clear direction.

34. 1:23:10
    The options and the new state law

    Members compared the options, noting option three, which polled better, would require raising lot sizes and further ordinance changes. Thebarge explained that under the law taking effect next July the town must allow additional units, and may require additional lot area per extra unit so long as it does not exceed the single family lot requirement, so two acres per unit and six acres for three units would be permissible. Members also discussed how the board's recommendation relates to the Select Board, which writes the article.

35. 1:29:11
    Option one described and the planner's view

    Option one, also called option A, would keep the two acre minimum and allow a single family dwelling with up to two accessory units, or a duplex with one accessory unit, each accessory unit limited to 50 percent of the main dwelling. Asked which option best supports the comprehensive plan, Thebarge said option A. Members described the survey as roughly evenly split between those wanting more restriction and those wanting more housing options without larger lots, and Tyler Hutchison was thanked for analysing the correlations in the responses.

36. 1:34:45
    Two article strategy and consensus

    The approach discussed was to put the comprehensive plan option to town meeting first, with a fallback article adopting the state minimum if it fails, so the ordinance is not left inconsistent with state law for the code officer. Members agreed to carry options one and two to the Select Board the following Tuesday and to return to the wording in January; a further informational meeting on the two options was raised as an option.

37. 1:40:01
    Accessory apartment rules and tiny homes

    Under the current ordinance the code officer can approve an accessory apartment at 50 percent or less of the main floor area, and a larger one can be sought from the planning board as a conditional use. Members noted a separate state law requiring tiny homes to be allowed as accessory units at up to 400 square feet, and that Durham already permits duplexes and accessory units on two acres.

38. 1:40:01
    Back lot example raised at the election

    A member recounted a resident with acreage front and back who cannot afford to build the private road the back lot rules require, and so cannot bring his son back to town; the road figure quoted in the recording is indistinct. Option two would let a second unit be added on the front acreage without the back lot road.

39. 1:45:34
    Standing of the comprehensive plan, and option three

    Members disagreed over how binding the comprehensive plan is, one describing it as a tool rather than a rule while acknowledging that residents at public presentations ask why the town is not following it. Option three was summarised as the most restrictive, increasing the lot requirement as dwellings are added.

40. 1:45:34
    Next meeting

    The next regular meeting was fixed for Wednesday, January 4, 2023, after some back and forth over the date, with enough members confirmed for a quorum. Officers are to be elected at that meeting.

What was decided

• 0:07
  Accept the minutes of the November 2, 2022 meeting as presented. Moved and seconded; the chair recorded the vote as four to zero, four members being present at that point.passed
• 27:40
  Motion to find the Deer Creek Crossing final plan application substantially complete, conditional on receiving the DEP, Army Corps and MDOT permits. After the hand vote the chair stated that the motion did not pass.failed
• 27:40
  Motion to determine that the Deer Creek Crossing final plan application is incomplete. Moved, seconded and voted; no tally is audible, but the chair afterwards stated it had been voted incomplete and that the board would reconsider when the permits are in hand.passed
• 39:11
  Grant the Brown Road applicant a waiver of the procedural requirements, skipping the sketch and preliminary plan steps and moving to the completeness review of the final plan. Recorded five to zero.passed
• 45:01
  Accept the Brown Road subdivision amendment application as complete. Moved by Tyler Hutchison, seconded by Allan Purinton, recorded five to zero.passed
• 55:47
  Grant a waiver of the on-site fire protection water supply standard, the 30,000 gallon cistern, in exchange for a residential sprinkler system on the future house, together with a waiver of the stormwater management plan submission requirement. Recorded five to zero.passed
• 1:01:49
  Grant a waiver of the performance standard requiring a well exclusion zone on the plan. Recorded five to zero.passed
• 1:07:09
  Adopt the findings of fact on pollution, sufficient water including the waiver and the residential sprinkler requirement, and erosion. Each recorded five to zero.passed
• 1:07:09
  Adopt the findings of fact on traffic and on sewage disposal. Both were moved, seconded and put to a hand vote, but no tally is audible on the recording for either.outcome unclear
• 1:12:17
  Adopt the findings of fact on municipal solid waste disposal, aesthetic cultural and natural values, surface waters, flood areas, freshwater wetlands, farmland, and river stream or brook. Each recorded five to zero.passed
• 1:12:17
  Adopt the findings of fact on conformity with local ordinances and plans, financial and technical capacity, groundwater, and the stormwater finding as amended to record a waiver rather than an exemption. All were moved, seconded and put to a hand vote, but no tally is audible for these four.outcome unclear
• 1:17:40
  Adopt the findings of fact on spaghetti lots, great pond phosphorus, impact on adjoining municipalities, and land subject to liquidation harvesting. Each recorded five to zero.passed
• 1:17:40
  Approve the final plan for the Brown Road subdivision amendment with the conditions of approval as drafted, plus the requirement that the three performance standard waivers be added to the subdivision plan. Moved by Allan Purinton, seconded by Juliet Caplinger, recorded five to zero.passed
• 1:34:45
  No vote was taken on the housing warrant article. Members reached a consensus in discussion, without a motion or a vote, to carry option one to the Select Board with a second article adopting the state minimum as a fallback, and to settle the wording at the January meeting.outcome unclear

An outcome reads "unclear" where the recording does not state it plainly. The recogniser drops short words, and "the motion does not carry" is one missing word from its opposite.

Motions the minutes record

The town's own written account of what was decided, taken from pbminutes_12072022.txt. It owes nothing to the recording or to a model: the clerk typed it, with the vote. Where the summary above claims a decision this list does not carry, the summary is the part to doubt.

• accept the minutes from December 7, 2022 meeting as presentedcarried 3-0-1

  Moved by Allan Purinton, seconded by Juliet Caplinger

• table 5a and 5b until February 1, 2023, at the request of the applicantcarried 3-0-1

  Moved by Allan Purinton, seconded by Juliet Caplinger

• propose to the Selectboard, Part 1A – to apply Resource Protection criteria per 2018 Comprehensive Plan recommendationscarried 4-0

  Moved by Juliet Caplinger, seconded by Allan Purinton

• if Part 1Afailed

  Moved by John Talbot, seconded by Allan Purinton

Worth knowing

• 27:40
  The Deer Creek Crossing final plan application was found incomplete for the second meeting running, over three outside agency permits the ordinance requires before a final plan is submitted. The board declined to convert them into a condition of approval, so the substantive review has not started.
• 0:07
  The Conservation Commission held a public informational meeting the night before on redrawing the town's resource protection areas to match the 2018 comprehensive plan; about 30 people attended. The planner also said the town's first digital GIS tax maps are weeks away from going on the town website.
• 1:17:40
  The housing survey had 195 responses, and members said the results point in no clear direction. The Select Board advised that the public hearing on the warrant article cannot be held more than 30 days before town meeting, which puts it in the first week of March.
• 1:23:10
  Under the state law taking effect next July, a lot where a single family home is allowed will have to accommodate up to three units unless the town raises the lot area required for the additional units. The town may require up to the single family lot area per extra unit, so two acres each, but no more.

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: 11 passages of motion language, against 14 decisions summarised.

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