Planning Board Meeting ~ November 2, 2022

2022-11-02 · Planning Board · 1:57:56 · watch on YouTube →

A Planning Board meeting with two applications and a piece of ordinance work. The board finished its substantive review of the Celebration Tree Farm conditional use application at 125 Bowie Hill Road, working through all eight criteria and adopting conditions that set a tiered limit on events: unlimited workshops up to 25 people, three monthly events up to 50 of which two may have amplified music, and one annual event up to 100, all between 9 a.m. and 9 p.m. Chair John Talbot voted against two of the findings, saying the scale and intensity question was the one that bothered him most. It then found the Deer Creek Crossing final plan application incomplete on four items, chiefly the unresolved question of whether an Army Corps permit is needed for the stream crossing, and set it for December 7. The meeting closed by approving the draft affordable housing survey subject to the board doing a trial run before it goes live, and by discussing the narrowed scope of the road ordinance amendments.

What was discussed

1. 0:10
   Call to order and minutes

   John Talbot opened with a quorum of Juliet Caplinger, Allan Purinton and himself, with Tyler Hutchison arriving during the item. There were no amendments to the agenda, and the minutes were moved and accepted as presented; the recording refers to October 5 and 12 while the town's minutes record October 5.

2. 0:10
   Town planner's report: ordinance process and training

   George Thebarge said he will meet the select board the following Tuesday at the town manager's request to discuss the ordinance amendment process for town meeting, with John Talbot reporting on the affordable housing initiative, Lois Chelsea (?) on the Historic District Commission's work, and Samantha of the Conservation Commission invited. He also circulated an invitation to Maine Municipal Association planning board training on December 13, a Zoom session from 4 to 7 p.m., with the town covering the $45 registration fee.

3. 0:10
   Housing starts against the comprehensive plan trigger

   The 2018 comprehensive plan addendum adopted when the town removed the growth area and the building cap requires tracking two indicators: new housing permits issued in a calendar year and lots approved by the planning board. Through the start of November there have been 30 new housing starts, against a trigger of 45 at which the plan provides a process for considering a moratorium and establishing a growth area. On the subdivision side there was one this year and two last year totalling about 26 lots, plus the 13-lot application now under review, well short of the 100-lot trigger.

4. 5:12
   Clarifying the trigger

   The 30 permits include homes in subdivisions such as Bowie Hill, and the town does not differentiate between subdivision and other permits. Last year there were about 22, so this is an uptick, though a further 0.75 point rise in interest rates was expected to damp it. A member asked that the 45-permit trigger be explained to the selectmen after it had come up at their meeting.

5. 5:12
   Public comment on non-agenda items

   The chair invited residents and then non-residents to speak on Durham land use matters not on the agenda. Nobody came forward.

6. 5:12
   Celebration Tree Farm: where the review stood

   George Thebarge summarised the conditional use application of Celebration Tree Farm for camping, public workshops and events at 125 Bowie Hill Road, map 10 lot 43. The first substantive review was August 3, the site walk was rescheduled to October 5, and the board tabled to this meeting for a formal parking plan and a lighting plan meeting the article 8 site plan review standards, which the board may draw on selectively under the conditional use criteria without triggering a full site plan review.

7. 5:12
   What the applicant submitted

   The applicant provided computer-generated parking diagrams for the main area west of the entrance, showing 30 spaces of nine and a half by eighteen feet with a 24-foot aisle, and for the overflow area, together with lighting diagrams showing fixture locations and types. George noted the lighting submissions gave no illumination levels as the site plan standards require. The road commissioner, Calvin, measured sight distances and found three of the four met the 305-foot standard along Bowie Hill Road, the exception being the main driveway looking east, blocked by vegetation in the right of way and the mailbox.

8. 11:02
   Status of the draft findings and a member's eligibility

   George said his draft findings and conditions were assembled from the application, the minutes and his notes of the public discussion, offered as a starting place rather than a recommendation, and invited the board to change anything. Tyler Hutchison confirmed he had watched the video of the meeting he missed and was comfortable voting.

9. 11:02
   Applicant's presentation

   Jonah Fertig said that after the site visit a section of the garden was taken out of the plan, which gave the 60 feet needed for two rows of stalls plus the 24-foot aisle. Fixtures have not been chosen but will meet the town's foot-candle illumination levels. Vegetation and shrubs between the two driveways and past the second driveway will be removed and the mailbox moved to the west side of the driveway, all of it within the road right of way rather than in resource protection.

10. 16:07
    Parking setback from the road

    The parking spaces sit about 20 feet from the road against an ordinance standard of 25 feet from the front property line, and the 20 feet includes the right of way. The applicant said moving them would mean taking out more of the garden. George advised that the board need not apply that standard here because the purpose of the 25-foot setback is separation between parking and abutting uses, which the dense mature vegetative buffer already provides, and the board accepted that on the understanding the buffer stays.

11. 16:07
    Headlights and the buffer

    A member raised the prospect of headlights sweeping across a neighbour opposite. The applicant confirmed the vegetation being cleared is on the other side, in front of their own house, and that nothing would come out where the parking lot is. The overflow lot has more depth and flexibility.

12. 21:55
    Mud tracking onto Bowie Hill Road

    The road commissioner was concerned the grass parking would turn to mud in heavy rain and John Talbot's concern was mud carried out onto Bowie Hill Road, so he raised a stone construction stabilisation entrance to pull mud off tyres. The applicant testified, and the site walk found, that the substrate is adequate to support the expected vehicles with no signs of rutting or erosion. The board reached consensus that at the level of use proposed the vegetation would not be beaten down enough to track mud, and did not require gravel, while noting it would be a concern with much heavier use.

13. 27:34
    Criterion 1: public health impacts

    The findings were that the applicants propose to install a leach field for the wastewater from the proposed sink and outdoor shower, and composting toilet outhouses that will compost all human waste. The board moved, seconded and voted the criterion satisfied.

14. 27:34
    Criterion 2: traffic safety findings

    The findings recorded a parking diagram for 34 cars meeting the dimensional standards of section 8.6.4.E west of the main entrance with an existing forested buffer to the road, an overflow diagram for 18 cars off the easterly entrance, lighting plans showing solar fixture locations, the adequacy of the substrate without gravel, and the road commissioner's sight distance measurements. Two changes were made: a note that the applicant had since submitted information confirming the illumination levels will meet the section 8 foot-candle standard, and the word trees in finding G replaced with plant material.

15. 33:09
    Parking lot lighting hours

    Members did not want the parking lot lit all night. The distinction drawn was between the 10-foot poles over the parking area, which should go off at a set hour, and the very low solar path lights, which are dim and needed for people walking to the yurt and campers. The board agreed to limit the restriction to the parking lot poles, and a suggestion to require the vegetative buffer between the main parking lot and the road be maintained was held over to the environmental criterion.

16. 33:09
    Criterion 2 vote and criterion 3: public safety

    The traffic finding, that the applicant will not create unsafe vehicular or pedestrian traffic conditions when added to existing foreseeable traffic in the vicinity, was moved by Juliet Caplinger, seconded by Tyler Hutchison and carried 4-0. On public safety the findings covered occupancy limits monitored and enforced by staff, no parking signs on Bowie Hill Road, and working with the fire chief and code officer on life safety code requirements for public assembly. In discussion the 100-person limit was changed from applying only to the annual craft fair to being the maximum occupancy at any time, with 50 the limit for other events.

17. 38:43
    Criterion 4: environmental impacts

    The findings were that the substrate of the access aisle and parking spaces is adequate with no construction involved in areas that are currently vegetated and showed no erosion at the site walk, that water and wastewater requirements will be minimal, and that wastewater and composting will comply with public health standards. The board added a fourth finding that all facilities have been moved outside the Resource Protection District, on the reasoning that it is better on the record in case anyone questions it later. Moved by Tyler Hutchison, seconded by Juliet Caplinger, carried 4-0.

18. 38:43
    Criterion 5: scale and intensity

    The draft findings had occupancy at the annual craft fair limited to 100, up to two monthly events between April and October limited to 50, and no weddings hosted. George warned that leaving the limits vague would make it very difficult for the code officer to verify either compliance or violation if he received complaints, and that the applicants can always come back for an amended approval.

19. 43:52
    The applicant's case for more flexibility

    Jonah Fertig said two events a month is very limiting for a farm and wellness centre offering yoga and educational workshops, and that what neighbours had objected to was amplified music rather than gatherings as such. He said they live on the site and are not looking to hold events every day, and that a yoga class with quiet recorded music is not something neighbours would hear.

20. 49:15
    Negotiating the event tiers

    Working through categories of weekly workshops, monthly events and the annual event, the board and applicant settled on unlimited weekly events and workshops with a maximum of 25 people and no amplification, three monthly events with a maximum of 50 of which two may have some form of amplification, and one annual event with a maximum of 100. Members reasoned that this gives the code officer something to check against when he is called out.

21. 54:16
    Vegetative buffer and the weddings finding

    Allan Purinton proposed a condition to maintain the vegetative buffer between the main parking lot and the road to keep headlights out of the neighbour's property opposite, which the board recorded as satisfying the buffering requirement for light purposes. John Talbot questioned how a wedding differs from a bar mitzvah or a retirement party; the applicant said weddings are simply larger and longer. The board kept the no weddings finding on the record so that a future reader can see the point was addressed.

22. 54:16
    Vote on scale and intensity

    The finding that the applicant satisfied the criterion for scale and intensity of use, based on the negotiated limits, was moved and seconded and carried three to one. John Talbot explained his vote against, saying this was the one that bothered him most and he was not sure it is the right use for the site.

23. 1:00:22
    Criterion 6: noise and hours

    The draft had a 9 p.m. cutoff for all events and recorded or acoustic music only with no amplified bands. At the applicant's request this was changed so amplified music is allowed twice a month and at all other times recorded or acoustic music is permitted on a limited basis at lower volumes per the event limits, with events falling between 9 a.m. and 9 p.m. Members noted the ordinance noise limit of 55 decibels from 7 a.m. to 7 p.m. and 45 outside those hours applies regardless. The chair again voted against for the same reason he gave on the previous criterion; the vote count is not audible in the recording.

24. 1:00:22
    Criterion 7: right, title or interest

    The findings were that the applicants submitted a copy of their warranty deed naming them as owners and that the town's tax list also lists them as owners. Moved by Juliet Caplinger, seconded by Tyler Hutchison, carried 4-0.

25. 1:06:04
    Criterion 8: financial and technical ability

    The applicants submitted a cost estimate of $47,500 for the improvements, stated they hold $20,000 in cash and an equity line of credit of $55,000, may apply for an additional loan from the Cooperative Fund of the Northeast, and have prepared a five-year cash flow projection showing the operation is sustainable. A member asked whether a letter of commitment from a financial institution should be required; George said that is specified for site plan and subdivision review but the board can decide here. The finding was approved with one member voting against on the grounds that other projects are asked to provide such a letter.

26. 1:06:04
    Conditions of approval

    The drafted conditions, as amended in discussion, cover no more than one annual event with maximum occupancy of 100, the monthly event limits with amplification allowed at two of three, the 9 a.m. to 9 p.m. window for events, no parking signs posted on Bowie Hill Road during all events, removal and maintained clearing of vegetation in the Bowie Hill Road right of way to achieve at least 305 feet of sight distance at the main entrance, verification of that sight distance by the road commissioner before events take place, a limit on how late the parking lot lighting may stay on, and maintenance of the vegetative buffer between the main lot and the road. George will clean up the wording and circulate it to the board and the applicant before issuing the notice of decision.

27. 1:11:37
    The applicant's existing operations

    Jonah Fertig raised the craft market they have run alongside Christmas tree sales for six years, due at the end of the month, and asked whether the new conditions put it at risk. The board said the existing tree farm and craft market continue under their current approvals and that the new conditions attach to the added camping and community events, but asked him to prioritise cutting back the largest vegetation for the sight line.

28. 1:11:37
    Deer Creek Crossing: completeness review

    The board turned to the final plan application for the Deer Creek Crossing Subdivision, map 7 lot 32A, with preliminary approval granted September 7 and the final plan submitted October 19. George's preliminary completeness review flagged DEP approval of the new stream crossing and removal of the existing one, Army Corps approval, an MDOT permit for the road entrance, Maine Historic Preservation Commission comments, written approval of the street name by the street addressing officer, the assessor's map and lot number in the title block, the method of financial improvement guarantee, and a letter of commitment from a lender for the performance guarantee.

29. 1:16:55
    Late material and the peer review

    The board must determine completeness within 30 days of receiving the application. The code officer confirmed by email that there are no current violations, the subdivision is not affected by the aquifer protection standards, and the street name Deer Creek Crossing is acceptable for addressing. A memo arrived that day from Will Haskell, the town's engineering peer reviewer at Gorrill Palmer, whose opinion is that an Army Corps permit is required for the stream crossing, which George noted is advisory and not binding on the board.

30. 1:22:15
    Performance guarantee and bylaws

    The applicants propose a cash deposit for the performance guarantee, which meets the ordinance requirement. On the homeowners bylaws they submitted a set, which satisfies completeness, but George alerted them that the ordinance requires the town attorney's template so the improvements are maintained and the town has enforcement authority; an alternative may be submitted but must be reviewed by the attorney at the applicant's expense. George will meet the peer reviewer the next day, this being the first engineering peer review the town has commissioned.

31. 1:22:15
    Whether the Army Corps has jurisdiction

    Charles Burnham said his understanding is that an Army Corps permit is needed only where navigable water is impacted and this stream is clearly not navigable, and that he had never filed one for a minor stream crossing. George described the chain from Congress to the Army Corps and the delegation of certain authority to state DEP, saying DEP used to handle all stream crossings but the Corps has more recently wanted to see them, on the theory that the stream feeds into the river. The applicant may obtain a written determination from the agency that no permit is required, which would settle it.

32. 1:27:29
    DEP permits and stormwater calculations

    The applicant explained that NRPA permits by rule work on a two-week silence, which is how the stream crossing permit went, and that a further NRPA filing is needed for disturbing over an acre. The peer reviewer wants calculations showing how much impervious and disturbed area the site involves rather than a bare assertion. The wetland delineation covered vernal pools and found none, and the fire chief's sign-off on the pond size remains outstanding but belongs to substantive review rather than completeness.

33. 1:32:47
    Finding the application incomplete

    Charles Burnham said he came in knowing the application was incomplete on the DEP and DOT permits alone. John Talbot listed four outstanding items: DEP approval of the stream crossing, Army Corps approval of the stream crossing, the MDOT permit for the road entrance, and the assessor's map and lot number in the title block. The board voted the application incomplete on those grounds and set it for December 7.

34. 1:32:47
    Procedure (?) noted for the next stage

    George pointed out that determining completeness starts a 60-day review clock, and that if everything else were resolved and only the Army Corps permit outstanding the board could grant a conditional approval, since the plan could not be recorded without it in any case. He also cautioned that the Corps could require a redesign of the stream crossing.

35. 1:32:47
    Affordable housing survey: distribution

    George presented the draft survey for the board's approval, having shown it to the selectmen. Devin would host it on the town website as a Microsoft Forms survey that tabulates itself. Members worried about reaching residents who do not read the Durham Blast or use the internet, and suggested a notice at the polls on November 8, a sign in the window at the Get and Go, posting through Jill and Heather on All Things Durham, and printing copies case by case at the town office; the town manager and clerk did not want paper surveys handed out at the election because it would interfere with voting.

36. 1:44:39
    How the survey results would be used

    George said 400 responses on the comprehensive plan against a population of about 4,000 was fairly substantial and that the point is to look for a clear lean rather than statistical precision, since citizen surveys are never truly representative. The three options in response to the state affordable housing requirement run from being less restrictive than the town currently is and than the state requires, in order to create housing opportunities for Durham residents, to being as restrictive as the law allows, reflecting perceptions about taxes, growth and loss of rural character. If the responses split evenly the board makes its own call and puts it to voters.

37. 1:44:39
    One article or several

    Members discussed presenting multiple options as separate warrant articles, as the town did with marijuana, and letting whichever passes stand. George said the selectmen did not want that. The board agreed to leave the question until the survey results are in.

38. 1:49:58
    Survey timing

    The plan is to report to the select board the following Tuesday, display a draft at the November 8 election, and go live on the website on the ninth or tenth once the selectmen agree. George recommended keeping the survey open at least until the January public hearing so that nobody can say they were not consulted, even though the board would already be giving guidance on the article.

39. 1:49:58
    Road ordinance amendments narrowed

    The road amendments are down to two items: a statement that roads can only be accepted by the town at town meeting, and language moving maintenance agreements out of the planning board's hands to the road commissioner and code officer. Staff discussions with the code officer, road commissioner and town manager found the current language confusing and hard to administer. The board and planner agreed to fix the administrative problems this round and reduce the bureaucracy to a single staff process, leaving standards such as paving and the 16-foot road width until the state affordable housing requirements are settled.

40. 1:49:58
    Schedule for the four ordinance articles

    The intention is to discuss the roads item in December, have survey feedback by January and give George guidance at the January meeting on which option to draft, then hold the public hearing for all four articles, from the planning board, the Conservation Commission and the Historic District Commission, in early February ahead of the April town meeting. Members noted the school break and Valentine's Day complicate the February dates. The Conservation Commission holds its own informational meeting on resource protection on December 6 at 6:30.

41. 1:55:24
    Approving the survey with a trial run

    A member said the survey's graphic design was hard to follow with small graphics crowded onto one page. George said the concepts are hard to illustrate and that spreading them over pages loses the reader. The solution agreed was for Devin to build the survey without publishing it so the board could each run through it first, and the motion to approve was reworded to make that trial run a condition of approval before the board adjourned.

What was decided

• 0:10
  Accept the minutes from the October 5, 2022 meeting as presented; the recording refers to October 5 and 12. Moved by Allan Purinton, seconded by Tyler Hutchison; carried 4-0.passed
• 16:07
  Agreed not to apply the 25-foot parking setback from the site plan review standards to the Celebration Tree Farm parking area, on the basis that the existing dense mature vegetative buffer already provides the separation the setback exists to achieve.passed
• 21:55
  Consensus that the board would NOT require a gravel base for the parking area or a stone stabilisation entrance, accepting the applicant's testimony and the site walk observations that the substrate is adequate and that the proposed level of use would not track mud onto Bowie Hill Road.passed
• 27:34
  Finding that the applicant has satisfied a reasonable burden of proof of compliance with the criterion for public health impacts. Moved by Allan Purinton, seconded by Juliet Caplinger; carried 4-0.passed
• 33:09
  Finding that the applicant will not create unsafe vehicular or pedestrian traffic conditions when added to existing foreseeable traffic in its vicinity, with the illumination-level note added and the word trees replaced by plant material in finding G. Moved by Juliet Caplinger, seconded by Tyler Hutchison; carried 4-0.passed
• 33:09
  Finding that the applicant has satisfied the criterion for public safety impacts, amended so that maximum occupancy of 100 applies at any time rather than only during the annual craft fair, with 50 the limit for other events. Carried 4-0.passed
• 38:43
  Finding that the applicant has satisfied a reasonable burden of proof of compliance with the criterion for environmental impacts, with an added finding that all facilities have been moved outside the Resource Protection District. Moved by Tyler Hutchison, seconded by Juliet Caplinger; carried 4-0.passed
• 54:16
  Finding that the applicant has satisfied the criterion for scale and intensity of use, based on the negotiated limits of unlimited weekly workshops up to 25 people, three monthly events up to 50 of which two may be amplified, and one annual event up to 100. Carried three to one, John Talbot voting against.passed
• 1:00:22
  Finding that the applicant has satisfied the criterion for noise and hours of operation, amended so that amplified music is allowed twice a month with recorded or acoustic music at lower volumes at other times, and events fall between 9 a.m. and 9 p.m. The chair stated he was voting against for the same reason as before; the vote count is not audible in the recording.outcome unclear
• 1:00:22
  Finding that the applicant has satisfied a reasonable burden of proof of compliance with the criterion for right, title or interest, based on the warranty deed and the town tax list. Moved by Juliet Caplinger, seconded by Tyler Hutchison; carried 4-0.passed
• 1:06:04
  Finding that the applicant has satisfied the criterion for financial and technical ability. The chair announced it approved, with one member voting against on the grounds that other projects are asked to supply a lender's letter confirming funds are available; the tally is not stated in the recording.passed
• 1:11:37
  Apply the conditions of approval as amended to the conditional use permit for Celebration Tree Farm, covering event numbers and occupancy, the 9 a.m. to 9 p.m. window, amplification limits, no parking signs on Bowie Hill Road, clearing and maintaining vegetation in the right of way to achieve 305 feet of sight distance with road commissioner verification before events, a cutoff for parking lot lighting, and maintenance of the vegetative buffer. Moved by Juliet Caplinger, seconded by Allan Purinton; carried 4-0.passed
• 1:32:47
  Find the Deer Creek Crossing final plan application incomplete on four items: DEP approval of the stream crossing, Army Corps approval of the stream crossing, the MDOT permit for the road entrance, and the assessor's map and lot number in the plan title block. Moved by Juliet Caplinger, seconded by Allan Purinton; carried 4-0. The application returns December 7.passed
• 1:55:24
  Approve the draft affordable housing survey with a condition that the board first do a trial run of the online form before it goes live. Moved by John Talbot, seconded by Juliet Caplinger; carried 4-0.passed
• 1:55:24
  Vote to adjourn; all in favour.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.

Motions the minutes record

The town's own written account of what was decided, taken from pbminutes_11022022no.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 October 5, 2022 meeting as presentedcarried 4-0

  Moved by Allan Purinton, seconded by Tyler Hutchison

• the applicant has satisfied a reasonable burden of proof of compliance with the criterion for public health impacts

  Moved by Allan Purinton, seconded by Juliet Caplinger; no outcome recorded

• the applicant will not create unsafe vehicular or pedestrian traffic conditions when added to existing foreseeable traffic in its vicinity

  Moved by Juliet Caplinger, seconded by Tyler Hutchison; no outcome recorded

• the applicant has satisfied a reasonable burden of proof of compliance with the criterion for environmental impacts

  Moved by Tyler Hutchison, seconded by Juliet Caplinger; no outcome recorded

• the applicant has satisfied a reasonable burden of proof of compliance with the criterion for Right, Title or Interest

  Moved by Juliet Caplinger, seconded by Tyler Hutchison; no outcome recorded

• apply the following conditions of approval to the permit for conditional use

  Moved by Juliet Caplinger, seconded by Allan Purinton; no outcome recorded

• the application is incomplete based on the four things that John (Talbot) just listedcarried 4-0

  Moved by Juliet Caplinger, seconded by Allan Purinton

• approve the draft survey, with a condition of a trial runcarried 4-0

  Moved by John Talbot, seconded by Juliet Caplinger

Worth knowing

• 0:10
  Durham has issued 30 new housing permits so far this calendar year against about 22 in all of last year. The comprehensive plan sets 45 as the trigger for considering a moratorium and establishing a growth area; subdivision approvals are far short of the separate 100-lot trigger.
• 49:15
  Celebration Tree Farm's approval sets tiered event limits: unlimited workshops up to 25 people, three monthly events up to 50 of which two may have amplified music, and one annual event up to 100, all between 9 a.m. and 9 p.m. Chair John Talbot voted against the scale and intensity finding, saying he was not sure it is the right use for the site.
• 1:16:55
  Deer Creek Crossing is the first project the town has put through an engineering peer review. The reviewer's opinion is that an Army Corps permit is required for the stream crossing, which the applicant disputes on the ground that the stream is not navigable; obtaining one would be time consuming and could force a redesign.
• 1:44:39
  The affordable housing survey offers three responses to the state initiative, from being less restrictive than the state requires in order to create housing for Durham residents, to being as restrictive as the law allows. It will stay open at least until the January public hearing, with the article going to town meeting in April.

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: 2 passages of motion language, against 15 decisions summarised.

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