- The Maine Wire - https://www.themainewire.com -

Affordable housing commission encourages local zoning flexibility and deregulation, state appeals board

The Commission to Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions recently submitted its final report to the Maine Legislature.

The report included nine recommendations for policies it recommends the legislature consider and numerous other suggestions that were discussed over the course of the commission’s seven meetings.

The commission was established by legislative resolve and was required to review data on housing shortages for low-income and middle-income households, review laws that affect local housing regulations, review efforts being made by other states and municipalities to address housing shortages, consider measures to increase housing options, and review the “historical role of race and racism in zoning policies and the best measures to ensure that state and municipal zoning laws do not serve as barriers to racial equality.”

The commission was made up of 15 members, including legislators from both parties in the Senate and House of Representatives, the director of the Maine State Housing Authority, a member appointed by the governor, and various members of the public.

In its report, the commission first recommended allowing accessory dwelling units (ADUs) by right in all zoning districts that are currently zoned for single-family homes. All 15 members of the commission voted for this recommendation.

Under current Maine law, an ADU is defined as a self-contained dwelling unit that is within, attached to, or detached from a single-family dwelling unit located on the same piece of land. 

In conjunction with its recommendation, the commission discussed whether to approve a recommendation related to LD 1312, a bill that was carried over from the first session of the 130th Legislature.

LD 1312 would require municipalities to allow one ADU to be located within or on the same lot as a single-family dwelling unit. An adopted amendment would also prohibit municipalities from adopting ordinances or regulations that circumvent the requirement.

Some commission members were concerned the bill’s current language would allow municipalities to block ADUs by setting minimum lot sizes or through locally adopted land use restrictions. Other members were concerned the bill would create a mandate for municipalities or place greater restrictions on land use.

The commission ultimately decided not to endorse LD 1312, but unanimously agreed ADUs should be “permitted by right in all districts zoned for single-family housing.”

By a vote of 13-2, the commission also recommended the elimination of single-family zoning restrictions in all the state’s residential zones by allowing up to four residential units on all lots. The recommendation included a sunrise clause to allow municipalities adequate time to prepare for the zoning changes.

The commission acknowledged overlap between its first two recommendations and suggested the legislature consider them together to determine any overlap or impact one has on the other.

According to the report, the commission’s recommendation to allow up to four residential units on all lots takes into account “certain practical financial and regulatory implications.” 

The commission noted that there are factors other than zoning that limit lots to single-unit housing, such as health and safety requirements, shoreland zoning, and limitations related to wastewater disposal and historic preservation ordinances. 

While the commission recognized these requirements might lead to exceptions to its recommendation, it cautioned that “such exceptions should not enable municipalities to evade the elimination of single-family zones nor should they be used as loopholes for municipalities to unnecessarily restrict multi-family units.”

The commission’s third recommendation would prohibit municipal growth caps on producing new housing. Fourteen of the commission’s 15 members voted to approve the recommendation. 

The commission’s report notes it debated whether to recommend a general prohibition on municipal growth caps or a more specific prohibition related to the production of affordable new housing. At its final meeting, the commission agreed on a general prohibition because it came to the conclusion that “municipalities have many other tools at their disposal to plan for local development and growth more generally, and that growth caps are artificial and cumbersome barriers which are unnecessary.” 

The commission noted that production of more housing units will lead to more affordable housing and encouraged municipalities to use other tools, with possible technical assistance from the state, to “responsibly plan for local development and growth without growth caps.”

The commission’s fourth recommendation was unanimously approved and called for the state to provide technical and financial assistance to communities looking to make zoning improvements and identify opportunities to increase affordable housing.

The commission notes in its report that local governments adopting any of its recommendations will require additional resources. The commission further notes the state should provide funding for technical assistance to all communities, but notes what that assistance looks like “may vary greatly” in each municipality depending on its needs.

Commission members further stated it will be “critical” to designate a state entity to provide technical and financial assistance. It identified the Department of Economic and Community Development and the Department of Agriculture, Conservation, and Forestry as agencies that potentially provide the aid needed. According to the report, commission members also believe “further discussion and study should be conducted to determine whom and where that assistance should come and how that assistance can be provided.”

The Greater Portland Council of Governments submitted a pilot project proposal, which the commission appended to its report. The proposal requires a single state entity to provide direct state technical assistance, regional technical assistance, and municipal technical assistance grants funded directly by the state.

Several of the commission’s other recommendations are closely related to its fourth recommendation as they propose establishing several different programs intended to incentivize municipalities to create affordable housing.

The commission’s fifth recommendation would create density bonuses in residential zones across the state. The bonuses would lead current low-income and middle-income housing projects to have 2.5 times their current density and would include a parking requirement of no more than .66 spaces per unit for additional units.

The commission also specified that units would be protected as affordable for a specific period of time but did not make a recommendation for how long that should be. It further noted it made this recommendation “in recognition of the general principle that a certain threshold number of units need to be met in a project in order to spread out costs sufficiently to make those units affordable and density bonuses have proven to be an efficacious way of achieving that end.” 

The commission’s sixth recommendation would create a three-year statewide incentive program for municipalities. It was approved by a vote of 14-1. 

In the program’s first year, a qualifying community would commit to reviewing zoning and land use restrictions. In the program’s second and third years, qualifying communities would have to adopt zoning and land use regulations that promote housing opportunities. According to the commission’s report, examples of regulations could include reducing minimum lot sizes and relaxing parking requirements

Qualifying communities would receive up to three years of financial reward from the state so long as they remain within the program’s requirements. 

The commission initially recommended having MaineHousing develop model zoning policies and oversee the program, but were concerned this would create a conflict of interest. Instead, the commission suggested either the Department of Economic and Community Development, the Department of Agriculture, Conservation, and Forestry, or the Governor’s Office of Policy, Innovation and the Future administer the program.

The commission’s seventh recommendation would create “a system of priority development areas where multi-family housing is permitted at a significant density with limited regulatory barriers.” It was approved by a vote of 10-5. 

According to the commission’s report, the system would require each community to pick a growth area where state investment would be focused and where state review of projects would be expedited if local zoning ordinances encourage development.

The report says priority development areas “should be reasonably sized and either centrally or otherwise conveniently located near resources such as municipal services, transportation, schools, employment, and amenities.”

The commission’s eighth recommendation, which was approved by a vote of 13-1, would amend the Fair Housing Act.

The commission recommends eliminating the terms “character,” “overcrowding of land,” and “undue concentration of population” from the law and from being legal bases of zoning regulations. The commission notes these terms are not defined in Maine law and the commission “emphasizes that any reference to them in law should include explicit and clear definitions.”

The commission states the vagueness of the terms has been used to restrict affordable housing projects and suggests using physical site characteristics instead. “By contrast, consideration of physical site characteristics – not people or their income sources or levels – more appropriately provides guidelines for municipal officials and may still preserve, for example, historic site protection,” the commission writes in its report.

The report notes municipalities will need guidance for how to remove vague terms and states “a clear definition is needed so that communities can understand where violations may occur and the penalties for such violations.” The commission recommends the legislature look to similar policies being pursued by Connecticut as part of the Desegregate Connecticut coalition.

The final recommendation approved by the commission would create a state housing appeals board that would review local denials of affordable housing projects. The recommendation was approved by a vote of 12-2.

The commission further noted that a housing appeals board “could also fast-track viable affordable housing proposals that have zoning by right, but are met with costly or unreasonable delays that are often fueled by local opposition.” 

The commission’s report also included additional considerations on topics it felt were beyond the scope of its charge or which it did not have time to fully explore, but which it believes advance its goal of increased housing opportunities and should be examined by the legislature.

Those recommendations include preventing zoning that charges “unreasonable or different” fees for multi-family affordable housing or land-lease communities, reconstituting the State Planning Office, and using energy efficient building materials in new housing projects and refurbishing older buildings for use as affordable housing. 

The commission also expressed concern over the rise of short-term rentals, like Airbnb, which it says have removed housing stock from the year-round rental pool and increased rental rates. The commission’s report notes it did not study the issue in depth but members are “particularly interested in ensuring that new housing units produced using the recommendations from this report are used primarily as permanent, year-round housing for Maine residents.”

The commission expressed concern over workforce housing shortages, specifically farmworker housing. While the commission did not have time to explore the issue fully, it expressed concern about “loss of prime agricultural land to development.”