Planning Board Public Hearing ~ February 15, 2023

2023-02-15 · Planning Board · 2:41:23 · watch on YouTube →

A special Planning Board meeting and public hearing on the five land use articles headed for the April 1 town meeting: two on resource protection, two on affordable housing, and one on road acceptance. Town planner George Thebarge opened by walking through the draft state rules implementing the 2022 housing law, released only a week earlier and not final until after Durham's town meeting. On resource protection the hearing ran long, with landowners on Runaround Pond Road and elsewhere objecting that the expanded boundaries rest on high-level state habitat mapping and Blanding's turtle data they doubt; the board made only a wording change, dropping the word errors, and sent both articles forward. The affordable housing articles collapsed: members disagreed over whether article 2A complies with the new rules, an amendment to article 2B failed on a tie, and the board then pulled both articles rather than rush them to the April meeting. The roads article, requiring a town meeting vote before a private road becomes a public road, was forwarded three to 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. 0:08
   Special meeting opened

   The chair noted this was a special meeting rather than a regular one, called to discuss the land use articles that will be voted on at town meeting on April 1. A quorum was established by roll call, there were no minutes to accept, and no town officials or residents came forward on matters outside the agenda.

2. 0:08
   State rules on additional housing units

   George Thebarge, wearing a mask because his wife had an active case of COVID, introduced the draft rule from the Department of Economic and Community Development. The legislature passed a law in April 2022 requiring all municipalities to adjust local zoning to allow more housing units on lots wherever single-family homes are allowed, and DECD, working with the attorney general's office, has been developing an enforceable rule since last summer. The draft was released a week before this meeting, goes to state public hearing on March 1 and will likely not be final until late April, after Durham's town meeting.

3. 5:46
   What the draft rule says on dwelling units

   On a vacant lot the two required units may be a duplex, two single-family homes, or a single family with an accessory apartment. Where a lot already has one dwelling unit, two more must be allowed, attached, detached or one of each; where it already has two, a third need not be allowed unless the town chooses to. A municipality may allow more than the state requires, and where a lot becomes vacant through demolition the town decides whether to grandfather the previous status or treat it as vacant.

4. 5:46
   What the draft rule says on accessory apartments

   Municipalities may not impose larger dimensional requirements for the added units, though a lot area per dwelling unit may be applied. Accessory apartments must be allowed in the same configurations, with no lot area requirement, no dimensional requirements more restrictive than for single-family dwellings, and no extra parking, and must be allowed on nonconforming lots of record, which Durham already permits. A new interpretation not settled by the statute allows municipalities to set a maximum size for accessory apartments.

5. 5:46
   Advice sought and a numbering correction

   George (?) said he had requested an advisory opinion from DECD on the board's draft article 2A and had advised the board it could also ask the municipal attorney. The chair corrected a typo in the packet: what George had described applies to articles 2A and 2B, the affordable housing pair, while 1A and 1B are the resource protection articles.

6. 11:00
   How the dimensional limits work in practice

   George (?) explained that a town cannot require a larger setback for a duplex or an accessory apartment than for a single-family home. It may require extra lot area per unit, but not more per additional unit than it requires for a single family: Durham requires two acres for a single family and has historically added only half an acre for a duplex, and under the law could require four acres for a duplex or six for three units.

7. 16:01
   How the five articles are paired

   The chair explained that 1A both adds land to and removes land from the Resource Protection District, in response to the sense at last year's town meeting that adding and removing should be considered together after an article to remove land alone was defeated; if 1A passes, 1B is withdrawn, and 1B only removes land. Article 2A follows the comprehensive plan and is somewhat less restrictive, with 2B, which mimics the state law, as the fallback; if both fail the state law applies directly and the code officer has to enforce it. The fifth article, requested by the selectmen after confusion at last year's town meeting, provides that a private road can become a public road only by town meeting vote.

8. 16:01
   Rules for the hearing

   The chair asked speakers to state their name and address, to make all their comments in one turn rather than a back and forth, and not to repeat what an earlier speaker had already said. He explained that the board's decision tonight is a recommendation to the selectmen, who vote on February 28 and will only send 1A, 1B, both or neither on to town meeting without changing the language.

9. 16:01
   Support for article 1A

   The first speakers supported 1A as written, saying it carries out the changes set out in the comprehensive plan approved in 2018, that there had been a public hearing with Conservation Commission participation and considerable outreach, and that George's mapping work answered a lot of questions.

10. 21:05
    A request to send only 1A

    A speaker asked the board to reconsider sending both articles and to forward only 1A, citing an email from the select board chair saying that the select board should either vote to send the planning board's final language to the voters or not. She also asked for neutral wording, suggesting that where the article title says errors it should say something like outdated, and that the reference to correcting Resource Protection District boundary errors be softened.

11. 26:09
    What resource protection actually restricts

    Asked what is allowed in the district, George (?) said the effect is mostly in what is prohibited: no new residential or commercial structures or uses, with existing ones grandfathered, while forestry, farming and recreational activities remain permissible. Expansion of an existing structure is limited to 30 percent through the board of appeals, and anything beyond that requires planning board conditional use approval; a later clarification established that the residential expansion limit does not apply to agricultural buildings.

12. 26:09
    A landowner questions the turtle data

    A Runaround Pond Road property owner read from the letter he had received, which explained the expansion in his area is based on Beginning with Habitat data showing a composite value of six or more, with the major driver being identified Blanding's turtle habitat. He said the state's own website puts the Maine population only in southern York and Cumberland counties in complexes of small ponds and vernal pools, that he has been over the land for almost 30 years without seeing signs of turtles, and that he could not support the article until he knew more.

13. 32:03
    The hayfield and the Conservation Commission's answer

    A second resident said her land is a hayfield rather than the wooded, wet or sandy habitat the turtle is described as using, and that this detail was new to her and probably to most people. A Conservation Commission member responded that the turtle was found there during the survey, that it is the northernmost occurrence in the state and so a distinct population, and that they use a diverse habitat array including wetland complexes, vernal pools, forest, the stream running through and the edges of that stream along hayfields. He noted that regulations of this kind commonly exempt agriculture and forestry.

14. 37:19
    72 acres brought into the district

    A landowner said the boundary had been moved past the brook and about 900 feet in, so 72 acres he had spent his working life paying for as his retirement would become largely useless and he could not even build a shed. He said he had always intended to keep the brook area protected and would sign something to that effect, but did not want to be told what he could do with land that had never been in resource protection, and that he believed the change cut his property's value from $200,000 to $50,000.

15. 37:19
    Where the criteria came from

    George set out the process: in drafting the comprehensive plan the town used state natural resource data, the latest being from 2017, covering floodplains, shoreland zoning areas, wetlands of ten or more acres and habitat around high and moderate value waterfowl and wading bird habitat. The sixth criterion was the Department of Inland Fisheries and Wildlife co-occurrence rating, which overlays deer yard, waterfowl and wetland values on a scale running up to about sixteen. The comprehensive plan committee recommended that areas scoring six or more be considered for resource protection or cluster development, and voters adopted it.

16. 42:25
    Mapping accuracy and the right of appeal

    A property owner said the map shows a stream on his property line with the school when it is well inside the school property, and asked what recourse he would have. George (?) said the mapping is done at a high level from the best available state data rather than a ground survey, so variations of fifty feet are possible and the map serves as a flag to the code officer. If a survey shows a feature is more than 100 feet away, the board of appeals can make a determination and the code officer can then issue a permit, and an abutter who believes a permit was issued in error can appeal in the same way.

17. 42:25
    Only the mapped portion is affected

    A resident pointed out that a landowner worried about value could talk to the assessor about tax incentive programmes, since the town has recognised the effect. Another (?) clarified that if only part of a lot is shown in the district, only that part is in resource protection; the whole parcel does not become subject to it.

18. 47:43
    How the six-plus score is built

    A Conservation Commission speaker explained that no single resource pushes a score over six: an endangered species like the Blanding's turtle scores only three points, so other overlapping resources make up the rest, and the co-occurrence model is meant to show where values accumulate rather than to rest on one indicator. He added that resource protection limits certain permanent impacts while allowing forestry and agriculture, which regenerate, unlike a parking lot.

19. 47:43
    Why the district is changing

    Todd Beaulieu (?) asked whether resource protection is changing because the town is using a different model than before. George (?) said the 2005 criteria were floodplains, shoreland zoning areas and wetlands of ten or more acres, and that this round adds waterfowl habitat within 250 feet and the six-plus co-occurrence areas recommended in the current comprehensive plan. He noted the six-plus model is not new, is available to all towns, and that the state's recommendation is six as a place to consider protection.

20. 52:59
    Why the town has no per-parcel score

    George (?) explained that Inland Fisheries and Wildlife supplies regional maps shading habitat value from yellow through to dark green, and that GPCOG, at the comprehensive plan committee's request, extracted everything six or above as a single layer without the gradations. The town therefore cannot say what a particular parcel scored, only the regional assessment. A Conservation Commission member pointed anyone interested to the co-occurrence map on Beginning with Habitat online, which shows the finer bands.

21. 58:11
    Ten maps reduced to two

    At the December 6 informational meeting about ten maps showing the different gradations were displayed, and George had provided detailed analysis to anyone who asked and offered to keep doing so. For town meeting the material has been boiled down to two maps, one of areas to be added and one of areas to be removed, on the reasoning that voters need to know exactly what they are voting on rather than face ten maps.

22. 58:11
    Could the threshold be raised

    A board member asked what the consequences would be of setting the threshold at eight or ten rather than six, which would bring less land in. George (?) said the comprehensive plan committee, which included development, agricultural and conservation representatives, arrived at six through a public process that voters approved, and that with less than a month to town meeting the practical course would be to take the six-plus habitat layer off the table and review it in detail after the vote. A member of the public noted that state law requires the town's ordinances to accord with its comprehensive plan.

23. 58:11
    Calls not to rush, and how long this has run

    A speaker urged the board to research the science rather than rush to meet a town meeting date, saying the worst outcome would be to impose something on somebody's property that is not right. Another (?) responded that the process has run since 2017, through the comprehensive plan adopted in 2018, a hearing in 2021 and two in 2022, so it is not something arrived at in the last two months. The chair then closed the public hearing on 1A and 1B.

24. 1:03:46
    Board discussion: the word errors

    Members agreed with the speaker who objected to the word errors, and worked through whether the old floodplain mapping was an error or simply data that was accepted at the time and is now known to be wrong. They settled on removing errors and having the text read that the amendment is to correct mapping based on inaccurate floodplain data. One member noted that language matters here because the turtle habitat had also been characterised in the hearing as an error.

25. 1:09:10
    One article or two

    The chair explained why the board had gone with two articles: the request coming out of last year's town meeting was for the chance to vote on adding land as well as removing it, and he thought it unfair that owners whose land is covered by inaccurate mapping should have no route to correction if 1A fails. The board reached consensus to forward both articles to the select board rather than 1A alone.

26. 1:09:10
    Votes on the wording

    The board voted to change article 1B so it reads to correct mapping based on inaccurate floodplain data, with the word errors removed, and then separately voted to delete the word errors from the last line of article 1A. Both articles go to the selectmen with those changes.

27. 1:15:09
    Whether to revisit the six-plus threshold

    A member said the concern is that the added six-plus layer rests on large-scale mapping that may not be accurate, and that although an owner can appeal, the onus and the expense of proving it fall on them. Another answered that Inland Fisheries and Wildlife has been on the ground and found the turtles, that the scientists did their job, and that six came out of the comprehensive plan rather than being invented by this board. Members said they were comfortable leaving it, and the board did not reopen its vote.

28. 1:15:09
    Affordable housing hearing opened

    The chair reopened the public hearing on articles 2A and 2B, repeating that 2B mimics the state law as a fallback and that if neither passes the state law governs anyway.

29. 1:20:20
    A line-by-line critique of the drafts

    A resident, Will, had gone through the new regulation against the proposed language and identified several conflicts. He noted a provision on tiny homes requiring a municipality to allow one as a dwelling or accessory structure subject to the same requirements as a single-family home, which neither draft addresses, and asked why the parenthetical subject to subdivision requirements appears in 2B. George (?) explained that under Maine law and the local regulations, creating three lots or dwelling units within a three-year period by division, construction, lease or otherwise triggers subdivision review, so a single family plus two accessory units could reach it.

30. 1:20:20
    Homeowners associations and accessory units

    It was confirmed in the exchange that where a homeowners association's covenants do not allow accessory units, the state law does not override them and accessory units are not allowed on that property. A speaker suggested the ordinance would benefit from clarifying that.

31. 1:25:55
    Size limits challenged

    Will (?) said the section title should say accessory dwelling units to match the state language, and that section 5.1.B, which requires the main dwelling to have at least 1,500 square feet of floor area before an accessory apartment is allowed, is more restrictive than the state law permits. He recommended replacing that with an express minimum and maximum size, the state minimum being 190 square feet, rather than tying it to a percentage of the existing house, and said the ordinance language on a new structure whose primary function is not a dwelling conflicts with the state rule allowing a new structure built for the primary purpose of creating an accessory dwelling.

32. 1:25:55
    Septic, water and ownership of three units

    Todd Beaulieu (?) asked who would own three buildings on one lot and how many septic systems would be needed. The answer was that nothing in the change overrides setbacks, water or wastewater rules: septic is sized by bedrooms, and if the existing system is insufficient and there is no room for another the code officer will not approve the unit.

33. 1:31:44
    Functional subdivision

    Members discussed Maine case law on functional subdivision, under which three separately owned units placed on a single conforming lot can end up transferred separately, so a two-acre lot effectively becomes three lots without going through subdivision review. Condominium ownership with a jointly held lot and an owners association was raised as the more common route. The statutory exemption cited applies only to dwellings that legally existed before September 23, 1971.

34. 1:36:55
    Are accessory units a separate category

    George pointed to new language added by the attorney general and DECD confirming that municipalities may set a maximum size for accessory dwelling units so long as they are not less than 190 square feet, which he said preserves Durham's size limits. The disagreement was whether section 3, on dwelling units, permits the town to satisfy the law with accessory apartments alone: it says the additional units may be detached, which a member read as requiring the town to allow up to three detached single-family homes, a different matter from the accessory unit rules in section 4.

35. 1:42:15
    Board agrees it needs an interpretation

    The exchange continued over whether an accessory dwelling unit is a subcategory of dwelling unit subject to different rules or a separate category, and what the dimensional requirement provisions therefore permit. Members agreed the question should go to the town attorney rather than be resolved at the table, noting that lot size may be increased for ordinary dwelling units but not for accessory dwelling units.

36. 1:47:47
    The case for adopting limits now

    Will (?) argued that the town should adopt ordinance changes that take up every limitation the state allows, so that it is not left open to something like a 3,000 square foot accessory dwelling unit with no size cap, and so the code officer has clear rules to apply. Members answered that any unit still needs a building permit with a proven well and septic, and that the drafts already limit an accessory unit to 50 percent of the existing house, cautioning against telling residents the ordinance would allow three large houses on two acres.

37. 1:53:20
    Heather Roy on buffering and definitions

    Heather Roy (?) said the drafts leave questions about whether minimum lot size means acreage or building envelope and asked for the definitions to be made clear. She asked the board, as stewards of what Durham will look like, to require vegetative buffering as development comes, noting that a whole business development can sit unseen behind a well-buffered country road, and that mature trees are expensive but worth requiring. She also asked how septic would be handled for three units and how a third unit added later would be treated for subdivision purposes.

38. 1:53:20
    Accessory units and the rate of growth ordinance

    Heather Roy's main concern was a provision stating that accessory dwelling units do not count toward the permit total for the municipal rate of growth ordinance. She said that means three households could arrive where one permit used to, feeding into the school system and the tax base without counting toward the trigger for a moratorium, and urged town officials to make a public comment at the state level on that point.

39. 1:58:57
    Final public comment

    A speaker cited 30-A section 4364-B on zoning requirements for accessory dwelling units, under which at least one accessory dwelling unit must be allowed on any lot where a single-family dwelling is the principal structure, and said the ordinance requirement that the main dwelling have at least 1,500 square feet of floor area conflicts with it. The chair then closed the public hearing on the affordable housing articles.

40. 1:58:57
    Board discussion: scrap 2A?

    A board member (Anne (?)) argued that section 4.1.A.7 of article 2A, which limits the outcome to a single family with two accessory units or a two-family with an accessory unit, conflicts with the new rules, and proposed dropping 2A and working on 2B instead. Ron and the chair pushed back, saying 2A offers real protection because it does not permit three large houses on a two-acre lot, that 2B would allow exactly what she fears if 2A fails, and that George as the professional planner believes 2A complies with the comprehensive plan and the law.

41. 2:05:08
    Walking through the regulation text

    The member took the board through the provisions: section 3 requires additional dwelling units to be allowed attached, detached or one of each, and bars dimensional requirements for those units more restrictive than for single-family houses, with dimensional requirements defined as governing the size and placement of structures. Her point was that size limits are permitted for accessory dwelling units under section 4 but section 3 does not deal with accessory units at all. The meeting was briefly interrupted by audio problems.

42. 2:10:16
    An alternative built on 2B

    The member's proposal was to drop 2A, keep 2B, add minimum lot sizes for two and for three detached dwelling units that are not accessory dwelling units, replace the 1,500 square foot main dwelling requirement with an accessory unit size range of 190 to 900 square feet, and strike section 5.1.C. Another member said she felt the material was not black and white or well written, might conflict with itself, and that an official opinion should be obtained.

43. 2:10:16
    Could 2A be amended instead

    Ron (?) asked whether the only real objection to 2A is that it does not allow more than one detached single-family home, and whether the relevant sections could be amended rather than scrapping the article, since the board chose 2A in January as the closest fit to the comprehensive plan. Members went back to what the comprehensive plan actually says: allowing three or four units, smaller housing on smaller lots, and farmhouse-style fourplexes sized like a farmhouse rather than four full units, with design standards compatible with typical Durham housing that the town does not currently have.

44. 2:15:16
    The chair resists setting lot sizes tonight

    The chair said the board had considered raising lot sizes when it took the survey and voted in January to go with 2A, and that a discussion about increasing lot sizes is not something that can be done between now and April 1. He said he was not comfortable producing acreage figures on the spot, since whatever the board sets affects far more than houses with accessory units. Members raised the possibility of a special town meeting in June alongside the school budget vote, or the November election, to allow more time.

45. 2:21:01
    The amendment to 2B is put

    The motion as finally stated was to amend article 2B by adding a minimum lot size of 180,000 square feet for two detached dwelling units that are not accessory dwelling units and 270,000 square feet for three, reducing the minimum lot size for a two-family dwelling to 90,000 square feet, rewriting 5.1.B so an accessory dwelling unit must be at least 190 square feet and not exceed 50 percent of the floor area of the main dwelling, and striking 5.1.C. It was seconded.

46. 2:26:09
    The amendment fails and both articles are pulled

    Members objected in discussion that the board was moving very quickly and producing numbers without enough thought, warning about unintended consequences. The vote split evenly and the chair declared the motion did not carry. A motion then followed to pull both affordable housing articles so that neither goes to the select board for the April 1 meeting, with the intention of returning to the question at a calmer time, possibly for a June or November vote; the chair treated the matter as concluded and moved on.

47. 2:31:13
    Roads: what the article does

    The chair opened the hearing on the roads article, which proposes only that acceptance of a private road as a public road requires a town meeting vote. He explained it came out of discussion at last year's town meeting about paving and private roads, where the whole article failed, followed by a request that it be made clear the selectmen cannot accept private roads on their own.

48. 2:31:13
    Whether the clarification is needed

    A speaker asked whether the language is needed at all given that road acceptance is already covered in state law, and recalled everyone who lived on a private road turning up at town meeting to get their road accepted and then leaving. She recommended clearer wording along the lines of acceptance of any private road or way as a town road must be approved at a town meeting, and noted that a petition might produce a special town meeting, so if the board is going to list the ways a road can be accepted it should list all of them.

49. 2:36:14
    History of road acceptance in Durham

    A resident recalled a road in his neighbourhood accepted around 2004 or 2005 that had to be built to the town's public road standard. George (?) said the 2004 comprehensive plan included a growth area and a growth management ordinance under which public roads would only be accepted inside that area; when the growth area was eliminated in 2019 the ordinance went with it. He said he had pointed out to the select board at the time that the town has no road acceptance policy setting out bonds, the deed and the rest, as most towns do, and it still does not. Subdivision roads, he confirmed, are built to a private road standard.

50. 2:36:14
    Roads article forwarded

    The board discussed that the request had come from one of the selectmen who did not want the issue left to the select board, and that no other road issues are in play. A motion to send the article to the selectmen was made and seconded and carried three to one. The board then moved to close the meeting.

What was decided

• 1:09:10
  Amend article 1B so that the word errors is removed and the text reads to correct mapping based on inaccurate floodplain data. Moved and seconded; carried 4-0.passed
• 1:09:10
  Delete the word errors from the last line of article 1A. Moved and seconded; the chair then confirmed that both 1A and 1B go forward to the selectmen with those changes. The vote count is not stated in the recording.passed
• 1:09:10
  Consensus to forward BOTH resource protection articles, 1A and 1B, to the select board, rather than forwarding 1A alone as a member of the public had requested.passed
• 1:15:09
  The board considered but did NOT reopen its earlier vote to include the areas scoring six or more on the habitat co-occurrence model in the Resource Protection District. Members said they were comfortable leaving it, noting the threshold came from the comprehensive plan.passed
• 2:26:09
  Motion to amend article 2B by adding a minimum lot size of 180,000 square feet for two detached dwelling units that are not accessory dwelling units and 270,000 square feet for three, reducing the two-family minimum lot size to 90,000 square feet, rewriting section 5.1.B so an accessory dwelling unit must be at least 190 square feet and not exceed 50 percent of the main dwelling's floor area, and striking section 5.1.C. Moved and seconded; the vote was tied and the chair stated it did not carry.failed
• 2:26:09
  Motion to pull both affordable housing articles, 2A and 2B, so that NEITHER is sent to the select board for the April 1 town meeting, with the intention of returning to the question with more time, possibly for a vote in June or November. No vote count is audible; the chair treated the matter as settled and moved on to the roads article.tabled
• 2:36:14
  Approve sending the roads article, providing that acceptance of a private road as a public road requires a town meeting vote, to the selectmen. Moved and seconded; carried three to one.passed
• 2:36:14
  Motion to close the meeting; the recording ends as the vote is called.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.

Worth knowing

• 5:46
  The state rules implementing the 2022 housing law were released only a week before this meeting, go to a state public hearing on March 1 and will not be final until late April, after Durham's April 1 town meeting. The town planner had asked the state for an advisory opinion on the board's own draft.
• 37:19
  Landowners (?) objected that the expanded Resource Protection District rests on high-level state habitat mapping rather than ground survey. One with 72 acres said the boundary runs about 900 feet past the brook and believes it cuts his land's value from $200,000 to $50,000; correcting a mapping error falls to the owner through the board of appeals.
• 1:53:20
  Heather Roy pointed out that accessory dwelling units do not count toward the permit total in the town's rate of growth ordinance, so three households could arrive where one permit used to without counting toward the trigger for a moratorium, with consequences for the school system and the tax rate.
• 2:26:09
  Both affordable housing articles were pulled rather than sent to the April town meeting, after an amendment failed on a tie and members disagreed over whether article 2A complies with the new state rules. Until the town adopts something, the state law applies directly and the code officer has to enforce it.

Motion language found in the transcript

Located by pattern matching, with no model involved: "I move that", "I'll second", "all those in favour". This is an independent check on the summary above: 4 passages of motion language, against 8 decisions summarised.

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