Proposed Amendments to the Land Use Ordinance 2020

Part 1: Proposed Zoning Map and Land Use Ordinance Update for Shoreland Zoning

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.

Proposed Zoning Map and Land Use Ordinance Update for Shoreland Zoning

Part 2: Proposed Land Use Ordinance Update for Roads

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.

Proposed Land Use Ordinance Update for Roads

Part 3: Proposed Land Use Ordinance Update for Home-Based Business

Unlike most towns in close proximity to major urban centers in Maine, Durham does not have an established commercial downtown or shopping district where non-residential development is allowed by right, and not allowed in other more rural parts of the community. Durham allows businesses to be located anywhere residences can be developed, and it relies upon Planning Board review of business development to deal with potential conflicts between those running businesses from their property and surrounding residential property owners.

The current regulations for “home-based businesses” lack clarity on whether such businesses on residential properties should be treated primarily as a residential property or a commercial property. Using a model from Maine’s Land Use Regulatory Commission regulations, the proposed amendments distinguish between “minor” and “major” home-based businesses. Minor home-based businesses are sometimes called “home occupations” because they indicate that the occupants are just working at home and have limited, if any, impact on neighbors. Minor home-based businesses can be approved by the Code Enforcement Officer, as is the case with current regulations.

Major home-based businesses, on the other hand, do have more intense activity and larger scale that could negatively impact neighbors if not carefully managed. At the same time, the Planning Board intends to continue the historic allowance for home-based businesses and does not see such uses as requiring the same level of scrutiny as someone developing a purely commercial site somewhere in Town. Any proposed business not qualifying as a minor or major home-based business will need to go through full conditional use and site plan review. Both major-home based businesses and commercial sites require Planning Board approval with notification of neighbors.

Another clarification of the proposed amendments is how daycares are treated. As with other home-based businesses, the current ordinance is not clear whether such uses should be treated as accessory residential uses or as commercial ventures. There is also a prohibition against any outside activity, which is an obvious problem for kids attending day care. The proposed revisions to the Land Use Ordinance amendments will make a clear exception for outside play areas and will classify daycares with 12 or fewer clients as “minor” home-based businesses. Daycares with 13 or more children will be treated as “major” home-based businesses. Of course, a daycare center that is not associated with a residence would be treated as a commercial venture.

Proposed Land Use Ordinance Update for Home-Based Business

Part 4: Proposed Land Use Ordinance Update for Conditional Use and Nonconforming Lots

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.

Proposed Land Use Ordinance Update for Conditional Use and Nonconforming Lots