Planning Board Public Hearing ~ March 22, 2023

2023-03-22 · Planning Board · 1:02:15 · watch on YouTube →

A special Planning Board meeting on March 22, 2023, held as a formal public hearing on the two land use ordinance articles going to the town meeting on April 1. One rewrites the resource protection district and the zoning map to match six criteria the town adopted in its 2018 comprehensive plan; the other states that a private road can be converted to a public road only by vote of the town meeting. Chairman John Talbot opened by ruling that the articles are set as printed in the town report and that nothing said at the hearing could change them. Almost the whole session went to resource protection, with the town planner walking through the map on screen and residents pressing on farming, taxes, building expansion, the cost of proving a boundary wrong, and mapping that has changed since 2018. The private roads article drew no comment at all. No vote was taken; both articles go forward as written.

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
   Call to order and quorum

   John Talbot called the special meeting to order and confirmed a quorum, naming the members present. Brian Lanoie, the board's newest member, was attending for the first time. Also present were an alternate, Ron Williams and a member whose name the recording garbles.

2. 0:03
   Purpose and ground rules

   Talbot (?) said this was a formal public hearing, not a question-and-answer session: speakers should not repeat what others had said, and questions should be put to the chair, who would decide who answered. He stressed that both articles had already been printed in the town report and submitted for approval, so no changes could come out of the hearing.

3. 0:03
   The private roads article, described

   The chair summarised the second article briefly at the outset: approval of converting a private road to a public road must go to town meeting rather than to town staff or the selectmen.

4. 0:03
   The six resource protection criteria

   Mike Friendly (?) of 155 Runaround Pond Road, a member of the Conservation Commission, said the 2018 comprehensive plan recommended six criteria for putting land into resource protection: the 100-year floodplain; a 250-foot shoreland buffer on the Androscoggin River and Runaround Pond; a 100-foot buffer on streams, in place in Durham for more than 20 years; moderate to high value wading bird habitat; wetlands of 10 acres or more; and a Beginning with Habitat score of six or higher. He said the criteria were approved in 2018 and this article puts them into effect after a process running a couple of years.

5. 0:03
   The maps: what is added

   George, the town planner, took over at the screen. On the first map, grey is the existing resource protection and green is what the six criteria would add.

6. 5:57
   The maps: what is removed

   The second map shows land that would come out of resource protection, in it since 2002 on floodplain data that has since proved inaccurate. FEMA has remapped and shown most of these areas are not floodplain. The removals happen in the same vote as the additions, producing the third map, the updated zoning map.

7. 5:57
   Individual property help offered

   The chair said the planner had worked with many owners already and was available to sit down with anyone about their particular property before the April 1 vote. A sign-in sheet was at the back.

8. 5:57
   Farming in resource protection

   The first resident to speak said he had farmed his land for 20 years and asked whether he would now be barred from farming around the bog on his property. The answer was that farming and forestry are permitted uses in resource protection. On his plan to build a garage, the planner said that for a wetland of 10 acres or more it is the wetland itself that is restricted, and that federal and state permitting applies regardless.

9. 5:57
   Effect on property taxes

   Asked whether the designation would change real estate taxes, the planner said he is not the assessor and has no assessing credentials, but that in his experience value rests mainly on the residence and other structures plus the minimum lot area around them, with undeveloped land adding value but not taxed at the same level. Land removed from resource protection would in theory gain value and land added would lose some.

10. 11:07
    Assessment is property by property

    The follow-up was that a reduction would be considered case by case and that the assessor could not give a general answer. Residents were directed to her.

11. 11:07
    Why there are two reds on the map

    Asked about the two shades of red, the planner said the town has had two designations since 2005, resource protection and resource protection rural, with no clear criteria for either, and that clearing that up was part of what started this process. Red is resource protection under the state's mandatory shoreland zoning; green is what Durham itself decided to protect under the comprehensive plan.

12. 11:07
    Limited residential around farm fields

    The orange areas are limited residential around open wetlands, many of them farm fields. When the state required action in 2019 the town chose limited residential rather than resource protection, allowing residential development subject to buffering standards that do not apply elsewhere. Small red patches inside them are forested wetland, because state criteria bar limited residential on forested wetland larger than two acres and DEP requires open wetland to be resource protection.

13. 11:07
    Which waters are which on the map

    Working the cursor across the screen, the planner identified Runaround Pond, the river, Newell Brook, part of Dyer Brook and the east and west branch of Chandler running to the Royal River as segments meeting state shoreland zoning criteria. The remaining streams shown green are ones Durham's comprehensive plan chose to give similar protection.

14. 16:31
    Three regulatory regimes for streams

    The planner described three programs. Streams in red meet state criteria for habitat and size, with a state mandate given as 75 feet and a shoreland zoning buffer treated as a 100-foot setback. Green streams are major segments the town identified in 2002. Streams shown only in blue fall under neither but are still covered by the Natural Resources Protection Act, which requires a permit by rule for a culvert or other disturbance.

15. 16:31
    Whether the map matches the 2018 comprehensive plan

    Asked whether this is the same map as the comprehensive plan's, the planner said the data came from the state Beginning with Habitat program in 2018 and the GIS layers from the Greater Portland Council of Governments, and that it has been reformatted as a zoning map rather than a planning map. It is consistent with the comprehensive plan but does not look identical to it.

16. 16:31
    Parcels that never qualified

    Pressed on whether some land was in resource protection that should never have been, the planner said the parcels that meet none of the criteria have been taken off. He put the number at some 300 parcels that would lose the designation if the map is approved.

17. 16:31
    What else changes on the zoning map

    An alternate member, Ann (?), said this was the first time she remembered seeing the full zoning map and asked what else on it changes. The planner confirmed nothing else does: the pink, the red and the aquifer protection district all stay as they are, and the only edits are the green resource protection additions and the removals.

18. 22:10
    Age of the current zoning map

    The zoning map now in force dates to 2004. It was updated in 2019 to correct an Aquifer Protection District that did not line up with the aquifers, and to make changes DEP required for certification. The planner presented this article as realigning resource protection the same way aquifer protection was realigned to match state data.

19. 22:10
    Three routes to relief

    A resident said the green on his land holds fruit trees and he does not accept it is wetland. The planner set out three remedies: an appeal to the board of appeals for a boundary determination, which can be started by the owner or requested by the select board, planning board or code enforcement officer; an allowance to expand an existing residential use by up to 30 percent, and beyond that with approval; and continued updating of the maps as better data arrives.

20. 22:10
    The equestrian center precedent

    The planner cited an appeal a year or two earlier by the equestrian center on Royalsborough Road, whose operation had been zoned resource protection in 2002 on floodplain data. It brought evidence that the land was not floodplain and the board of appeals moved the mapped boundary off it. He said the town cannot map every property and the article rests on the best generally available data, far better than 2002's.

21. 27:53
    What evidence the board of appeals may consider

    A member of the board of appeals asked how the rule limiting appeals to evidence available when the decision was made would apply here. The planner said that limit governs appeals of an administrative decision, such as a permit the code officer issued, and not a boundary determination. He read from section 2.3 A.6, which directs the board of appeals to interpret boundaries where features on the ground are at variance with the official map. A determination binds only the property under appeal.

22. 27:53
    Resource protection turns on more than wetland

    Ron Williams sought confirmation that wetland is only one of the triggers. The planner agreed, and added that whichever criterion applies, the ordinance permits farming and forestry in any resource protection district. He gave Beginning with Habitat scores of six or more, and Blanding's turtle habitat in particular, as an example raised at the February 15 hearing where a letter from Inland Fisheries and Wildlife could be enough to move a line.

23. 33:14
    Mapping that has changed since 2018

    A resident said the state mapping updated to January 2023 puts her property in a buffer where earlier mapping had not, along with about seven other properties. She also said the habitat block her land sits in had been shown at over 1,200 acres, worth three points, and the newest mapping puts it at 1,164 acres, below that threshold. The planner agreed that is the kind of data the board of appeals could act on.

24. 33:14
    Who has to bring the appeal

    The resident said she had been told she might have to go before all three boards at her own cost. The planner said he had not said that: only the board of appeals can change a boundary, and the select board, planning board or code officer can request the determination as an alternative to the owner appealing. The chair advised starting with the code enforcement officer or the planner.

25. 33:14
    Objection to acting only after the vote

    The resident said that once the article passes it is law and harder to change than it was to put in. The chair repeated that the planning board could not amend the article now, and that the updated January 2023 maps had been posted on the town website that week but would need a process to be worked down to individual property scale.

26. 38:16
    Expansion allowance and property value

    A resident of nearly 40 years said he had always intended to enlarge a small house and that the expansion allowance came to 172 square feet, which would hardly be worth doing. He said the article devalues his property and that the building he works in is the only value he has. The chair said the argument was best made on the floor of the town meeting, and repeated that a larger expansion is possible with board of appeals approval; the percentage he quoted here differs from the figure given earlier.

27. 38:16
    What happens if the article fails

    Asked what the zoning map would be if the maps are not approved, the answer was that it stays as the first map in the packet, the grey one.

28. 38:16
    The planner's case for the ordinance

    The planner said the ordinance as it stands defines resource protection only as what is shown on the map, with no criteria behind it, so there is nothing to explain why a given property is in or out. Writing measurable, observable criteria into the ordinance makes the designation something a landowner can follow, measure and challenge.

29. 38:16
    How old the data is, and who updates it

    The map is built on the 2018 data adopted with the comprehensive plan, which is the only data the town has adopted. Inland Fisheries and Wildlife posted a 2023 map in January; the planner said the agency updates periodically as workload allows rather than on a fixed cycle, with previous updates in 2017 and 2018. The chair added that the Army Corps and FEMA handle floodplain and that wetlands are now mapped by overflight, and gave it as his own view that major changes should go back to town meeting while limited ones go to the board of appeals.

30. 43:56
    How floodplain elevations are set

    For the Androscoggin, the floodplain rests on water characteristics, terrain and past flood records read from gauges. Dyer Brook and Newell Brook have had the same analysis, usually done because road crossings and culverts cause damming. Other streams are designated from topography without a specific elevation, which an engineer or surveyor can establish.

31. 43:56
    Roads through wetland

    An existing road through a wetland is grandfathered. A proposed one needs planning board approval to go through resource protection, and the planning board will not act before the federal or state agency with jurisdiction has signed off.

32. 43:56
    The cost of disproving the map

    A resident said what she was hearing amounted to putting the burden on landowners to disprove the mapping, which means surveyors and engineers and is extremely expensive for a homeowner who has owned a property for years and has plans for it. She pointed to the horse ranch having had to bring in a survey team.

33. 48:57
    The chair's answer on cost

    Talbot (?) said he did not want anyone leaving the room assuming they must spend five thousand dollars on a surveyor to add 100 or 200 square feet, and that the first stop should be the code enforcement officer or the planner. The planner added that the town will not pay for detailed engineering, but that for Beginning with Habitat scores the state will often supply a letter that is evidence enough, whereas in the equestrian center case the board of appeals was not satisfied by his GIS maps and required a survey as a condition.

34. 48:57
    State and federal rules apply either way

    A member made the point that a landowner with wetland will face state and federal permitting to put a road through it whether or not this article passes, so the article does not change that.

35. 48:57
    The Snow Road wetland

    Asked about a wetland at the top of Snow Road, the planner said it is one of five in town designated by Inland Fisheries and Wildlife as moderate to high value waterfowl and wading bird habitat, with a 250-foot buffer recommended by the comprehensive plan and the Beginning with Habitat program. When the Bowie Hill subdivision came in it had to show that buffer on its plan and get DEP approval, so the requirement is not only Durham's.

36. 54:31
    The salmon crossing culvert

    In the course of answering a floodplain question, a quarter of a million dollars was quoted as what the town would spend on a culvert the Corps of Engineers has called a salmon crossing. A member of the budget committee in the room disputed the figure, putting the town's own share at about fifty thousand and saying the balance is state money. He returned to it again before the meeting closed.

37. 54:31
    Offer of individual GIS review

    The planner said he had been using the GIS system throughout this process to zoom in on individual parcels and turn layers on and off, and could show any owner the basis on which their land is being added or removed. He pointed again to the sign-up sheet.

38. 54:31
    Why the board of appeals held back on a case

    A speaker explained a case in which the appeals board did not feel it was its place to pre-empt what the town meeting would decide, and was not willing to fix a boundary from a map when the owner intended to develop the property for children's use. The owner obtained a survey, and the board acted on that. The point made was that town staff can now do more of that work than was possible before.

39. 1:00:04
    The private roads article

    The chair explained that the board had been asked to put forward an ordinance change stating specifically that a private road can be approved as a public road only at town meeting, and that no one else, the planning board, the road commissioner or the selectmen, has that authority. He invited comments and questions on it. None were offered.

40. 1:00:04
    Close

    Talbot (?) said the decision on both articles would be made on April 1, urged those present to bring neighbours and vote, and directed anyone with a question about a particular parcel to the town planner. He closed the public hearing and the meeting.

What was decided

• 0:03
  The chair ruled at the outset that both land use articles are set as printed in the town report and that nothing arising at the hearing could change them; any change would have to come at the town meeting on April 1. He restated the ruling later when a resident asked the board to correct the map.passed
• 33:14
  A resident asked, on the strength of state mapping updated in January 2023 that put her property in a buffer it had not been in before, that the map be corrected before the town meeting vote. The chair declined, saying the planning board had no authority to amend the article at this stage and pointing her to town staff before the vote and the board of appeals afterwards.failed
• 1:00:04
  The chair asked whether any board member had anything further and, hearing none, closed the public hearing and the meeting. No vote was taken by the board on either article; both go to the town meeting of April 1 as written.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

• 16:31
  Roughly 300 parcels carry a resource protection designation they do not qualify for, applied in 2002 on floodplain data FEMA has since corrected. The same vote that adds new land to the district takes the designation off those properties.
• 33:14
  A resident said the state mapping updated to January 2023 put her property, and about seven others, into a buffer that earlier mapping had not shown, and that the habitat block her land sits in had dropped from over 1,200 acres to 1,164, below the threshold that scores three points. The map going to the April 1 vote is built on 2018 data, the only data the town has adopted.
• 38:16
  A resident of nearly 40 years said the permitted expansion of his house worked out to 172 square feet, that the change devalues his property, and that the building he works in is the only value he has left. The chair's answer was that the argument belonged on the floor of the town meeting rather than at this hearing.
• 54:31
  A figure of a quarter of a million dollars for a culvert designated a salmon crossing was stated during the hearing and then disputed on the record by a member of the budget committee, who said the town is not spending $250,000 and put Durham's own share at about $50,000 with the state carrying the rest.

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