April 8, 2020 ~ Planning Board Workshop

2020-04-08 · Planning Board · 1:06:25 · watch on YouTube →

A Planning Board workshop held over Zoom, with no formal votes taken. The board worked through its membership problem first: with the April town meeting postponed indefinitely, terms have run past their end and the board is thin enough that any business would need a unanimous vote, so members who had resigned agreed to stay on and two appointments were recommended to the select board. Bob, the code enforcement officer, reported on two conditional use applications and on two stop work orders, one for a duplex foundation poured with no permit 82 feet from a resource protection stream where the town's new ordinance requires 100 feet. George, the town planner, presented draft preliminary and final subdivision review checklists built on the land use ordinance adopted last December, and the board asked him to remove the not applicable column so applicants must request a waiver instead. The board set its next regular meeting for April 22 by Zoom and agreed that application materials should be available to the public as well as to members.

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. 0:04
   Board membership and expired terms

   The chair's own term ran only to the April town meeting, which has been postponed with no date set. He said the board is low enough on membership that it would take a unanimous vote to get any business done, and was willing to stay to keep the board functional until members can be added. Allison was understood to be in the same position, having been the third member to resign but not wanting to leave the board unable to operate.

2. 0:04
   Moving Wesley to a regular member

   The select board had not yet acted on moving Wesley from alternate to regular member. Members agreed this should be a recommendation from the planning board and could go on the select board's agenda for Tuesday.

3. 0:04
   Al Purington's application

   Al Purington (?) had applied and said he would be willing to sign up for a year and see how it goes. Because John is continuing for a short time, the seat he would fill is Brian's, which has one year left and which Brian does not appear interested in continuing even in the short term. He wants to be a voting member rather than an alternate.

4. 0:04
   Vetting a second applicant

   A second application had come in from someone the board did not know. The chair said he was not of the opinion that the board should appoint any warm body who applies, and that some vetting was worth doing, whether an interview or at least a discussion, with a member available to speak to the applicant. The vetting was put on Tuesday's agenda with the other membership items.

5. 5:20
   Nomination of a chair

   The chair had thought of nominating a chair at the workshop, but Ann pointed out that should happen at a regular meeting. It was moved to the next meeting agenda.

6. 5:20
   Conditional use process draft

   A draft conditional use process and application had been sent to George, who had not yet responded, so it was held for the application discussion later in the meeting.

7. 5:20
   Status of the two conditional use applications

   Bob (?) reported both applicants had submitted new paperwork that appeared complete, the plot plan having been the main gap on one of them. DEP visited the farm site and concluded the work was not disturbing enough wetland to require action, sending a letter and the relevant regulations with a square footage threshold.

8. 5:20
   Wetland delineation against the town's ordinance

   Members pointed out that a DEP determination sounds like a finding that no permit is required, which is a different question from whether the site complies with the town's resource protection zone. The town still has to confirm where the wetlands are and test that against its own ordinance, and without mapping that cannot be done, so the direction given was for a survey by a wetland scientist. Bob (?) said he would relay that.

9. 10:38
   Two stop work orders

   Bob (?) reported stop work orders on two properties. One is at Riverbend on Mill Pond Road (?). On the other, a duplex foundation was poured with no building permit at all, 82 feet from a resource protection stream, after the owner had been told to bring in a septic design and plot plan and never did. He had also issued a conditional use permit to someone who had put in a parking lot with three or four dump trucks for a home-based business.

10. 10:38
    Enforcement options

    Bob (?) asked what the next step is if the owners do not submit conditional use permits. Ann (?) said the courts are not scheduling anything at present, and that the options are a second notice of violation, which she doubts people heed any more than the first, or drafting a consent agreement to see whether they want to resolve it. She noted any enforcement beyond a notice of violation that goes to court has to be signed off by the select board, and offered to talk it through with Bob offline.

11. 15:45
    The 82-foot foundation

    The owner has a five-acre back lot behind the property, and the foundation sits half on one parcel and half on the other because he never came in for a permit, putting part of it inside resource protection. The former ordinance required 75 feet but the ordinance adopted on December 9 requires 100, and the foundation went in about two weeks before this meeting. Bob (?) said DEP (?) told him he cannot give an inch, and the owner knows he will have to remove it unless it can be shown the state standard overrides the town's.

12. 15:45
    Setting the next meeting

    With the applications having been under way for some time, members did not want to wait for May 6. Bob (?) confirmed both applicants have Zoom and are ready and willing to present that way, and that he would circulate the new information the following day so members could flag anything missing.

13. 20:47
    The three-stage subdivision review

    George (?) explained that article six of the land use ordinance adopted last December uses the Southern Maine Regional Planning Commission model, splitting review into a pre-application sketch plan, a preliminary plan that is a formal but limited review, and a final plan. The philosophy is sequential, increasing scrutiny and commitment, with the final stage being where the decision is made and the point at which it becomes ripe for appeal, whether to the zoning board of appeals or the court.

14. 20:47
    What preliminary approval is for

    At the preliminary stage the board works through whether the project can meet the standards in general and identifies the technical issues, then conditions approval on what has to follow, such as a hydrogeological study for groundwater, a traffic peer review, or DEP and DOT permits. The developer then knows the expectations and can get those reviews done in parallel, so that everything needed for a decision is in hand at final approval, instead of the drawn-out process of resolving one issue and having three more raised.

15. 25:55
    Flexibility in how the stages are used

    George (?) said if the board is not comfortable giving a formal preliminary approval, the ordinance allows it to defer more of the review to the final stage. His own recommendation was to use preliminary approval with standard conditions attached, so the developer and the board both have a clear path forward rather than spinning on issues as has happened on some applications.

16. 25:55
    The two checklists

    There is a preliminary approval checklist and a final approval checklist, differing only in the completeness review section, the final one covering the recording plan and other final submissions. Items are highlighted to show what the board decides at the preliminary stage, with a column noting those left to the final stage. George (?) described three uses: telling the applicant what is expected, giving the board a systematic way to work through a review, and letting findings of fact be drafted on the preliminary issues while the applicant is out getting state approvals.

17. 31:33
    Who determines completeness

    Asked whether the applicant checkbox column would be filled in by staff, George (?) said the applicant completes every item in that column. He added that under the ordinance and, he believes, state subdivision law, the completeness determination has to be made by the board itself unless expressly delegated, and that he has always advised against staff being put in the position of telling someone they cannot go before the planning board.

18. 36:54
    What role the code officer plays

    Members wanted to define what gatekeeping role Bob should have, not to make the formal determination but to ensure a minimum level of materials before an application reaches the board, and to have it written into the roles and process so everyone works to the same expectations. George (?) suggested staff send the package with a memo setting out what is missing and the applicant's explanation for why.

19. 36:54
    The not applicable column

    Bob (?) argued the not applicable column should come out, because whether an item is needed is the board's decision and NA is too grey a judgment for him to be making. George gave the example of a three-lot subdivision on an existing road, where several of the eighteen preliminary plan items may genuinely not apply, and explained that marking something not applicable amounts to requesting a waiver of that submission.

20. 41:54
    Waivers and boxes that can never be waived

    Members agreed to drop the not applicable column and rely on the waiver column, on the understanding that an applicant who thinks an item does not apply is asking for a waiver and has to make the case. They also discussed marking out the items for which a waiver would never be granted, such as a survey plan, and requiring a written reason for any waiver requested. George (?) said he needed time to work out which are genuinely never waivable and would start with a deliberately narrow list.

21. 47:12
    Formal receipt of application and notification forms

    George (?) noted that at present Bob gives applicants a cash receipt for the fee, which is not a formal legal receipt of a subdivision application. State law requires notice that the application has been received because clocks start running, and the model includes a formal notice of receipt setting out the applicant's rights and requirements. He will also put into Durham format the abutter notification form and forms for notifying outside agencies, including a neighbouring town's planning board or code office and any water supply entity within the prescribed radius.

22. 47:12
    Standard conditions and findings of fact

    George (?) offered to draft standard conditions of approval and standard findings of fact, noting the board has spent a lot of time labouring over findings and that much of it is routine, such as recording that every lot has a septic system meeting the state plumbing code. He said the postponement of town meeting had freed up time to get this ready before the first subdivision comes in under the new ordinance.

23. 53:53
    Conditional use application form

    Ann had drafted a conditional use application form which George had turned into a fillable PDF and suggested some wording changes to. Only a small group had seen it, so it will go to the full board for review and official approval. The PDF could in principle be filled in on the website, though George doubted that was wise given the documentation that has to accompany it; for now applicants can at least type rather than handwrite their answers.

24. 53:53
    Getting materials on screen for the Zoom meeting

    Members wanted applicant submissions turned into PDFs so they could be put on the screen during the Zoom meeting, rather than everyone looking down at their own paper. Kathy (?) said staff are still in the office and she could do it, and Bob agreed to send everything the following day so members could flag anything missing before the meeting.

25. 58:58
    Public access to application materials

    George (?) raised whether the public will be able to see the same documents, pointing to Falmouth, where a resident can click an agenda item and see all of an applicant's submissions, and to Brunswick's lower-tech practice of posting a scan of the application material with the agenda as one PDF. Members agreed, noting neighbours often turn up without having seen the materials, which will be worse over Zoom, and that applicants can reasonably be expected to submit electronically.

26. 58:58
    Testing Zoom connections in advance

    A suggestion was made to test applicants and other presenters on Zoom before a meeting starts, after a Topsham meeting the previous night where the applicant could not be heard and the discussion was lost for the twenty or so people attending. Members noted the requirement is that the public can hear all the members and that members can hear each other, and that at the last select board meeting someone calling in from the audience had been asked to speak to verify it.

27. 1:04:25
    Public hearing on the ordinance amendments

    George (?) reminded the board it still has to hold the public hearing on the ordinance amendments before town meeting. With the annual town meeting postponed to a date to be determined, the hearing and the select board process will have to be backed up a couple of weeks from whatever date is eventually set, and members agreed to schedule them together when the time comes.

28. 1:04:25
    Close

    The chair confirmed the next regular meeting is April 22, continuing the daycare and farm applications, whose names the recording does not render clearly. One member's connection froze during the closing exchange. As a workshop, no motion to adjourn was taken.

What was decided

• 0:04
  Recommend to the select board, for its meeting on Tuesday, that Wesley be moved from alternate to regular voting member and that Al Purington (?) be appointed as a voting member filling the remainder of Brian's term, which has one year left. Agreed in discussion without a formal vote.passed
• 0:04
  Vet the second applicant rather than appointing whoever applies, with the discussion placed on the same Tuesday agenda as the other membership items, and members willing to speak with the applicant or answer questions.passed
• 5:20
  Hold the nomination of a chair over to a regular meeting rather than taking it at the workshop, on Ann's advice, and put it on the next meeting's agenda.tabled
• 5:20
  Require the wetland delineation on the farm application to be surveyed by a wetland scientist, because DEP's finding that no state permit is needed does not establish compliance with the town's own resource protection requirements and the board has no mapping to test it against.passed
• 15:45
  Hold the next regular meeting on April 22 by Zoom to take up the two conditional use applications, rather than waiting for the May date, both applicants having confirmed they can present over Zoom.passed
• 41:54
  Remove the not applicable column from the preliminary and final subdivision checklists, so that an applicant who believes an item does not apply must instead request a waiver and make the case for it.passed
• 41:54
  Have George mark out the checklist boxes for which a waiver could never be granted, starting from a deliberately narrow list such as the survey plan, with more added later once the board has had time to consider which items are genuinely never waivable.passed
• 47:12
  Endorse George continuing to develop the supporting forms: a formal notice of receipt of application in place of the cash receipt currently given, abutter and outside agency notification forms, and standard conditions of approval and standard findings of fact for use on the first subdivision under the new ordinance.passed
• 53:53
  Circulate Ann's conditional use application form, incorporating George's (?) suggested wording changes, to the full board as a fillable PDF for review and official approval, with Bob using it in the meantime and sending it to applicants electronically.passed
• 53:53
  Have Bob and Kathy work together to get all applicant submissions into PDF before the next meeting so they can be shown on screen during the Zoom session.passed
• 58:58
  Agree in principle that application materials should be available to the public as well as to board members, and that applicants can be expected to submit electronically. How the town will publish them was left to a later conversation on process and procedures.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

• 15:45
  A duplex foundation was poured with no building permit at all, 82 feet from a resource protection stream. The town's ordinance adopted on December 9 requires 100 feet where DEP requires 75, and the code officer says DEP (?) told him he cannot give an inch, so the owner has been told he will have to remove it unless the state standard can be shown to override the town's.
• 0:04
  The planning board is short of members. With the April town meeting postponed indefinitely, terms have run past their expiry, and members who had already resigned are staying on because otherwise any business would need a unanimous vote. Two appointments are being sent to the select board.
• 31:33
  Under the town's ordinance and state subdivision law, the determination that an application is complete has to be made by the planning board itself rather than by staff, so an incomplete application still reaches the board. The town planner recommended the board deal with it by going through the checklist at the meeting and sending a formal letter listing what is missing.
• 47:12
  The town has been giving subdivision applicants only a cash receipt for the fee. That is not the formal notice of receipt state law requires, which matters because statutory clocks start running from it, and the planner is preparing the proper form along with abutter and outside agency notices.

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: 1 passage of motion language, against 11 decisions summarised.

Elsewhere

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