Subdivision Notice to Abutters
Click here for the Notice to Abutters Form. Section 6.6 E of the Durham Land Use Ordinance requires that applicants for subdivision approval notify all abutting landowners of the pending subdivision application with a brief description of the project and the date of the Planning Board meeting where the application will be discussed. This notice must be provided to all abutters with verification of notice being provided in one of two manners:
- The notice can be sent to the property owner of record by certified mail, return receipt requested.
- The notice can be hand-delivered with a signed receipt of the abutting landowner.
The notice must be provided not more than 30 days before the scheduled Planning Board review meeting nor less than 10 days before the meeting.
Notice is required for the first meeting of the Planning Board for review of the preliminary subdivision plan application and for the first meeting of the Planning Board for review of the final subdivision plan application.
Subdivision Sketch Plan Application and Checklist
Click here for the Subdivision Sketch Plan Application and Checklist. This is the first step in the subdivision review process, and it is required for all applicants unless a procedural waiver is granted by the Planning Board.
The purpose of this step is to have the applicant discuss their project with the Planning Board before they invest a lot of money in developing preliminary subdivision submissions. They must submit baseline inventories of the property proposed for development and a conceptual layout based on that site information, which involves some level of investment. But this step occurs before the engineering design of the project so that the contemplated direction is set on the right track. This saves everyone involved in the process time and money as opposed to redesigning an ill-conceived project plan that does not meet the subdivision criteria and performance standards.
If a cluster subdivision is proposed to take advantage of allowable reductions in lot area and road frontage, then the applicant must submit a conceptual site plan showing how the proposed layout creates usable open space for conservation and recreation and how the lots are configured to take advantage of that open space in terms of where the homes will be sited.
Sketch plan review is not conducted as a public hearing and abutter notice is not required. No formal decisions are made by the Planning Board and the applicant does not receive any vested rights or approvals. The goal is to have the applicant and the Planning Board "on the same page" before the project is designed and goes to a public hearing.
Preliminary Subdivision Application
Click here for the Preliminary Plan Application. This form contains contact information for the applicant and consultant team along with general information about the property proposed for development. It also asks a series of questions intended to identify possible aspects of the project involving special reviews or consideration. The separate preliminary plan checklist provides a detailed list of submissions to be attached to the application.
The application also includes space for identifying waiver requests. Please note that each waiver request must be accompanied by a separate waiver request form to be filled out and submitted with the preliminary plan application. The waiver request must provide an explanation supported by documentation that a waiver of the procedural steps or subdivision standards is justified and the subdivision review criteria will be met.
The application must be accompanied by the required review and escrow fees before it will be accepted or processed. The nonrefundable review fee is $500 for the first 3 lots and $100 for each additional lot over 3 lots. A refundable review escrow of $250 per lot must be submitted to provide the Planning Board with resources to obtain professional assistance in reviewing technical issues related to the project if necessary. Careful preparation of submissions by qualified professionals can minimize the need for use of the escrow funds. Inadequate preparation of submissions can lead to project delays and maximum use of the escrow fund.
10 printed copies of the application must be submitted for review by staff and the Planning Board along with one digital copy of the application and submissions.
Preliminary Subdivision Checklist
Click here for the Preliminary Subdivision Plan Checklist. This checklist is intended to help applicants prepare their application and to help the Planning Board systematically review it in an efficient way.
The preliminary plan review process ensures that the proposed subdivision meets all criteria of the Durham Land Use Ordinance and State subdivision laws. The checklist is organized to follow the adopted criteria and standards, and specific references to the Ordinance are included for each checklist item.
The first three pages of the checklist contain the list of required submissions to establish a complete application that can be reviewed for approval. The Planning Board will not begin the formal review process unless and until it has a complete application. A formal determination of completeness is the first step in the review process and a letter acknowledging receipt of a complete application will be issued following the completeness review. If an application is determined to be incomplete, deficiencies will be noted in the letter and the application will not be reviewed until those deficiencies are addressed.
Although the Durham Land Use Ordinance provides broad flexibility and authority for granting waivers of procedural steps, submissions, and performance standards to the Planning Board, the burden of proof is on the applicant to document that granting a waiver of the standards will not result in a project that fails to meet the subdivision review criteria. Each and every waiver request must be submitted with a waiver request form supported by objective evidence that the criteria can be met with the proposed departure from the relevant ordinance requirement(s). If a project approval faces a legal challenge, that documentation of the basis for granting the waiver will be important to sustaining the Board's decision.
A completed application should provide adequate information for the Planning Board to come to a preliminary determination of the ability of the proposed project design to meet all of the Ordinance criteria and standards. In most cases, any additional documentation needed to verify compliance, such as special studies and outside agency reviews, can be submitted with the final plan application as indicated in the checklist.
Subdivision Waiver Request Form
Click here for the Subdivision Waiver Request Form. Section 6.35 of the Land Use Ordinance grants the Planning Board discretionary authority to grant waivers of the requirements for subdivision approval if there are special circumstances on a particular project that warrant a waiver of the procedural steps, submission requirements, and/or performance standards.
In all instances, the Board must make findings that the criteria of the Land Use Ordinance and State subdivision laws will be met with the granting of any requested waiver(s). Those findings will be based on the applicant providing the Board with documentation supporting the waiver request. It is the burden of the applicant to convince the Board that granting a waiver is in the interests of the Town as well as the applicant based on objective information provided by the applicant with the waiver request. A separate waiver request form with supporting documentation is required for each and every waiver request of the applicant.
Final Plan Application
The final subdivision plan application, available here, must be submitted within 6 months of receiving preliminary plan approval from the Planning Board. If the applicant cannot make this deadline due to delays caused by other agency reviews or other reasons beyond the applicant’s control, extension requests will be considered by the Board if filed before the deadline. For the Board to consider a final subdivision plan, all outside agency reviews must be obtained, and all submissions must be submitted for a determination of completeness of the application. The Board will not consider any final plan application that is incomplete.
Final plan applications must incorporate any changes ordered by the Planning Board as preliminary approval conditions (see notice of decision) and changes required by outside reviewing agencies (if any). Applicants are encouraged to submit their final plan set with supporting documentation to the Town’s peer review engineer on or before filing the final plan application so that peer review comments will be available for Board consideration at the earliest point of their deliberations.
Final Plan Checklist
The final subdivision plan checklist, available here, is intended to help applicants prepare their application and to help the Planning Board systematically review it in an efficient way. The final plan review process ensures that the preliminary approval is carried forward to a complete set of fully engineered plans and legal documents that are ready for recording. As with the preliminary plan, the Planning Board will not begin a final plan review until all required documentation is submitted. The first three pages of the checklist contain the list of submissions required for determination of a completed application.
Once the Board determines the application is complete, including outside agency reviews and any special studies indicated in the preliminary approval, it will conduct a review of the final plan application against the same review criteria and performance standards as the preliminary plan along with final plan items not considered at preliminary approval. The Board will consider whether any changes from the preliminary plan affect its prior determination of consistency with the review criteria and standards.
Template for Declaration of Covenants & Bylaws
Click here for the Template for Covenants & Bylaws. Section 6.32 of the Durham Land Use Ordinance requires that all common land and improvements be owned and maintained by a private homeowners' association. The Town Attorney has prepared a template for the subdivision declaration of covenants and bylaws that covers the typical subject matter of most declarations and bylaws, but it covers the maintenance of common improvements in much greater detail and ensures that the association has needed authority and responsibility to maintain the project in keeping with the Ordinance standards and subdivision approval conditions.
The template further differentiates between covenants that will be enforced by the Town of Durham and those that are strictly private matters to be enforced by the association. Applicants are free to propose changes that do not affect the maintenance and enforcement provisions required by the Town Attorney-approved template. Changes to provisions affecting the Town will only be considered by the Planning Board after legal review by the Town Attorney at the applicant's expense.
Template for Performance Guarantees
Click here for the Template for Performance Guarantee. Section 6.34 of the Durham Land Use Ordinance requires that all common improvements (road, stormwater facilities, fire protection water supply, etc.), be secured by the developer with a financial performance guarantee based on the project engineer's estimate of the construction costs (not contractor bids). The most common form of performance guarantee is an irrevocable letter of credit issued by the lending institution that is financing the project. The letter of credit is a contractual agreement between the developer, the lending institution, and the Town of Durham and must be approved by the Board of Selectmen.
The Town Attorney has approved a template meeting all legal obligations. Alternative forms of performance guarantees can be proposed, but they will require review by the Town Attorney at the applicant's expense and must be approved by the Planning Board. The one exception is a deposit of the cash amount needed to complete the remaining improvements to be held in escrow by the Town of Durham. The letter of credit template provides for the gradual reduction of the credit amount as the improvements are completed. Such reductions require the issuance of a new letter of credit for the remaining amount.