Eliminating single-family zoning among ways to increase housing opportunity, state commission says

Dec. 3—A commission formed to examine barriers to building housing in Maine is recommending eliminating single-family zoning, allowing homeowners to build in-law apartments as a matter of right and removing local caps on new housing production, among other things.

The Commission to Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions met for the seventh and final time Thursday, finalizing its recommendations to state lawmakers in a nearly six-hour meeting.

The recommendations, which also include providing technical and financial assistance to municipalities as they work to comply with any new state mandates, will go before the Labor and Housing Committee next month. State lawmakers will consider whether to offer any bills to implement any of the recommendations.

Commissioner co-chairs, House Speaker Ryan Fecteau and Sen. Craig Hickman, both Democrats, each has a placeholder bill to enact all or portions of the report.

"The next step will require a great deal of advocacy and work to convince (our) colleagues to ultimately throw their support behind what we ultimately put forward as a bill or bills," Fecteau told commissioners. "I hope you will all be a part of that process."

Two of the recommendations appear to be aimed at preventing affordable housing projects from being blocked based on neighborhood opposition, like the recent affordable housing development that was thwarted in Cape Elizabeth. It was the first affordable housing proposal in the affluent coastal town in a half a century.

The 46-unit rental project proposed by The Szanton Co. would have reserved 37 units for low-income households, or those earning 60 percent or less of the area median income.

The project required zoning changes by the town, which granted Szanton a height increase; lowered the amount of land needed per housing unit, doubling the allowable footprint of the building; and no longer required the building to have commercial tenants on the first floor.

However, opponents launched a referendum drive to undo those approvals. It qualified for the ballot and Szanton announced this week that it was dropping the plan.

In November 2020, L.L. Bean withdrew its support for a developer looking to build a mix of hundreds of housing units, including 60 apartments and 70 duplexes, on 250 acres the company owns near Interstate 295 in Freeport that includes a golf course. The project would have required a zone change and was fiercely opposed by area residents, who worried it would change the town's character.

One recommendation aimed to strengthen the Fair Housing Act by eliminating the ability to deny a project based on concerns about neighborhood "character," "overcrowding of land" and "undue concentration of population in one area."

"These are terms used to keep certain kinds of people out of communities," Fecteau said.

Another recommendation would create a state appeals board, which could override a municipality's denial of an affordable housing project before turning to the courts.

The 15-member commission was formed by a bill sponsored Fecteau. It came after an analysis commissioned by the Greater Portland Council of Governments showed that only 5 percent of the land in Portland, Falmouth, Westbrook, Gorham, Scarborough, South Portland and Cape Elizabeth is designated for multiunit apartments and condominiums. The report concluded that restrictions meant to preserve community character and combat sprawl often have the opposite effect.

Apartments in Maine are becoming increasingly expensive, with one in five tenants paying more than half of their income for rent, according to the Maine Affordable Housing Coalition. A Mainer earning the minimum wage of $12.15 an hour can't afford a typical two-bedroom apartment in any of the state's 16 counties, the group says.

The commission's report features nine recommendations, including a list of mandates and incentives aimed at reducing barriers for affordable housing and multiunit buildings. It is also expected to include a minority report, explaining the reasons why some commissioners opposed certain recommendations.

The commission tried to balance Maine's tradition of strong local control with state mandates, recommending that the state offer financial and technical assistance to municipalities that seek to review their land use laws and ordinances to make it easier to develop housing.

BALANCING LOCAL CONTROL

Kate Dufour, a legislative advocate for the Maine Municipal Association, said she initially felt like other commissioners were teaming up and placing too much blame on municipalities for the housing shortage, when state and federal policies also are to blame. By the end, Dufour felt that the commission took the concerns of municipalities seriously, even if the report includes recommendations that could limit local control.

"I don't want municipalities be set up for failure," Dufour said while arguing for robust support, rather than penalties, for municipalities. "We need to look at why communities make the decisions they make. It's not one size fits all."

Dufour said the MMA opposed proposals to eliminate growth caps and to establish a state appeals board.

The commission also issued some informal recommendations, including a suggestion that the state study how short-term rentals are impacting long-term housing supply and costs.

"Commissioners noted that the rapid growth of short-term rentals in Maine has taken existing housing stock out of the year-round rental pool, putting pressure on rental rates throughout the state," the draft report states. "Although long-term impacts may not yet be known, there is evidence that short-term rentals are impacting the housing market."

The recommendations include eliminating single-family zoning by allowing up to four residential units to be built on all lots, provided that other health and safety requirements, such as minimum sewer and lot sizes, are met. The group also recommended allowing people to build in-law apartments, or accessory dwelling units, as a matter of right.

Those two recommendations alone could make a big difference, said Hannah Pingree, director of the Governor's Office of Policy Innovation and the Future.

"I think the addition of (accessory dwelling units) and this four-unit opportunity will make a big difference in towns," Pingree said. "I think this is actually a very big step."

ANNUAL GROWTH CAPS TARGETED

The group also recommends eliminating so-called local growth caps, which limit the amount of housing that can be developed in a given year.

Falmouth is one community that currently has such a cap, and reached its 65-permit limit for 2021 in June.

The group also recommends:

— Providing funding and technical assistance on zoning matters to municipalities looking to increase affordable housing, including reducing minimum lot sizes and relaxing parking requirements to increase diversity of housing sizes and types;

— Creating density bonuses throughout the state for low- and middle-income housing projects, provided the units remain affordable for a period of time;

— Establishing a three-year incentive plan for towns willing to review zoning and land use policies to encourage more housing opportunities; and

— Asking each town to designate a priority growth area that is located near community services.

Affordable housing developer Erin Cooperider said she was excited to see the recommendations come together and urged lawmakers to act.

"What a terrific job this commission has done and I hope the Legislature will take the next step and make it happen," she said.

The commission also included: Dana Totman, president and CEO of Avesta Housing; Jeff Levine, a former Portland planning director who now teaches urban studies at the Massachusetts Institute of Technology; Sen. Matthew Pouliot, R-Kennebec County; Rep. Amy Arata, R-New Gloucester; Dan Brennan of the Maine State Housing Authority; Heather Spalding of the Maine Organic Farmers and Gardeners Association; construction industry representative John Napolitano; real estate broker Madeline Hill; Cheryl Golak, an advocate for low- and middle-income Mainers; and Anthony Jackson, an advocate for civil rights and racial justice.