In 1994, the Maine Department of Environmental Protection imposed a shoreland zoning ordinance and map on the Town of Durham for its failure to comply with Maine’s Mandatory Shoreland Zoning Act. That ordinance and zoning map are at odds with the Durham Land Use Ordinance and Zoning Map. In December of 2019, Durham voters approved amendments to the Land Use Ordinance that adopted a new ordinance framework and format that used the DEP shoreland zoning guidelines to bring the Town into greater compliance with State law.
At the same time, the Planning Board attempted to tailor the new shoreland zoning regulations to have the least impact on development rights of existing landowners. Upon conducting an informal review of the adopted regulations, DEP staff indicated that significant changes would be required in order to bring the Town into full compliance with the Mandatory Shoreland Zoning Act.
The changes now proposed will require the imposition of some Resource Protection zoning around five large-nonforested wetlands as shown on the draft Zoning Map. The Planning Board hired an environmental consultant who specializes in shoreland zoning to conduct research to establish which areas surrounding those “swamps” could have Limited Residential development and which areas must be Resource Protection. Affected landowners must be notified by mail of the proposed changes under Maine’s notice laws.
Along with the requirement for additional Resource Protection zoning, the DEP also pointed out that the State’s Limited Residential classification does not allow commercial or industrial uses. Durham’s rural zoning allows home-based businesses and other commercial uses with approval by the Planning Board, but such uses cannot be allowed within 250 feet of those large wetlands.
Finally, the Planning Board attempted to streamline the shoreland zoning regulations to only address the limited shoreland issues Durham actually deals with. Most areas affected by Mandatory Shoreland Zoning are already in the Town’s Resource Protection, but DEP staff indicated that all provisions contained in the State guidelines must be addressed to bring Durham into compliance with law. The Town Planner and environmental consultant have proposed amendments to bring the Town’s shoreland zoning regulations into full compliance. Upon adoption of the amendments, the new shoreland zoning regulations must undergo formal review by DEP before they can go into effect.
The Land Use Ordinance contains multiple articles with inconsistent and conflicting standards for the approval of roads. This creates confusion for citizens using the Ordinance and for those charged with administering and enforcing the regulations.
The Planning Board has observed that the voters adopted a policy limiting back lot development to require at least 350 frontage and about 8 acres for the development of a single back lot. Yet the allowance for the development of private roads has enabled people to circumvent the back lot limitations and put in multiple standard 2-acre lots on a private gravel road with no review by the Planning Board. The Planning Board’s current authority is limited to approving a maintenance agreement with no public process for reviewing such new roads that can affect public safety and abutting property owners.
At the same time, because of the concern for adding lots to a back lot access, the Town’s Fire Chiefs have advocated for construction of a 20-foot wide road even to serve a single back lot. This has created hardship for property owners seeking to follow the Town’s allowance for development of back lots.
To address these inconsistencies and Ordinance conflicts, the Planning Board has proposed limiting back lot access to a single back lot while allowing the use of a 16-foot wide gravel driveway to serve such back lots. Any further development using the back lot access would need to follow the same process and meet the same standards as anyone pursuing a subdivision, with public notice of abutters.
Another change proposed is to abandon the “private road”/”public road” distinction that was based on the Town’s prior Growth Management District that was repealed by voters in 2019. The proposed Ordinance amendments classify new roads according to their function as “minor local” or “local” roads, with design standards that roughly follow the current public and private road conventions. A new class of “sub-collector” has been added to address larger projects and roads that cumulatively serve more homes than minor local and local roads.
Finally, parking standards have been moved from the road standards appendix to the article dealing with commercial site plan standards, and those parking standards have been expanded to include the types of development typically found in towns like Durham.
Durham’s Land Use Ordinance gives opportunity for citizens who believe that the Code Officer and the Planning Board (or another board) made errors or bad decisions to appeal those decisions to the Board of Appeals. In many towns, appeals of such board decisions must be taken directly to court.
Under the proposed revisions, the Appeals Board will still have authority to uphold Planning Board (or other board) decisions, if they determine that all of the evidence was appropriately considered, and all of the relevant rules were applied.
Under the proposed revisions, the Appeals Board will also retain authority to overturn a Planning Board (or other board) decision if they consider, based on the evidence and testimony, that the board didn’t fairly judge the evidence or misinterpreted the Land Use Ordinance. Under this option, the Planning Board (or other board) that made the decision will need to do the process over, unless the person losing the Appeals Board decision appeals that decision to court.
The third option the Appeals Board will retain under the proposed revisions is to remand or send the decision back to the Planning Board (or other board) for further consideration if they determine that the board didn’t follow all procedures or didn’t apply all relevant ordinance standards.
A fourth option in the current Land Use Ordinance will be eliminated. The Appeals Board will no longer have authority to “modify” the Planning Board (or other board) decision. This provision of the current ordinance has obscured the lines of delegated authority and puts the Appeals Board in the position of second guessing the Planning Board (or other board) and making a different decision than that of the Board with appropriate jurisdiction. That has the potential and actually has led to confusion between the boards.
During the workshops where the Planning Board discussed potential policy changes to the Land Use Ordinance, it received input from citizens requesting changes. Many of those requests were beyond the scope of the Planning Board’s ability to address at this time, but some were incorporated into the proposed changes for roads and home-based businesses.
Two simple changes that the Planning Board decided to include were clarifications of current policy. It is understood that property owners seeking conditional use approval are subject to all requirements of the Land Use Ordinance, and a new subsection was added to explicitly state this policy.
Similarly, Code Enforcement Officers and the Board of Appeals have interpreted that for any lot to be “grandfathered” against the 2-acre lot size and 300-foot frontage requirements it had to exist prior to 1976. The proposed amendments clearly state the date of March 6, 1976 as the date for establishing lawfully non-conforming lots.