Cape Elizabeth Brings Zoning Ordinances into Compliance with State-Mandated Affordable Housing Requirements

The Cape Elizabeth Town Council has voted to approve a slate of changes to bring their zoning ordinances into compliance with the state’s new affordable housing mandates.

Originally passed in 2022, LD 2003 — An Act To Implement the Recommendations of the Commission To Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions — required that municipalities across the state make a number of amendments to their local ordinances in the name of improving access to affordable housing.

One of the most notable changes imposed upon municipalities by LD 2003 was the unconditional allowance of accessory dwelling units (ADUs) on any residential housing lot — meaning that these additional structures are not to be subjected to the same parking and density requirements as other buildings.

The other primary change that municipalities must make in the near future to their zoning ordinances under LD 2003 is the implementation of an “affordable housing density bonus” — which automatically multiplies the maximum allowed density for an area by 2.5 times for qualified affordable housing developments.

Although the legislation initially required that towns and cities have these changes in place by July of this year, lawmakers decided over the summer to extend the deadline to 2024. Depending upon a municipality’s governmental structure, it now either has until January or July of next year to make the necessary adjustments.

For Cape Elizabeth, the Town Council was required to have these changes in place by the first of the year.

[RELATED: Deadline Extended to 2024 for Municipalities to Meet One-Size Fits-All Affordable Housing Requirements]

According to a press release from the Cape Elizabeth Town Council, all members except for Councilor Timothy Reiniger voted in favor of the ordinance amendments.

In addition to implementing the mandatory changes surrounding ADUs and affordable housing density bonuses, the Council also brought the town’s ordinances into compliance by clarifying the maximum number of “dwelling units” allowed on a given property — a figure that changes depending upon whether a zone is classified as a “designated growth area” or not.

Also as part of these changes were alterations to the town’s site plan review requirements. According to the town attorney, LD 2003 mandates that small multi-family buildings must be treated — for purposes of site plan review — in the same manner as single-family residences.

In Cape Elizabeth, this means any buildings that fall under this description are not required to undergo a site plan review by the town. Remaining in place, however, are the site plan review requirements for large multi-family dwellings that fall outside of LD 2003’s parameters.

The town attorney did note, however, that site plan review is one of several aspects of LD 2003 where a certain level of legal interpretation is required to understand what exactly they are being asked to do.

Councilor Reiniger challenged this interpretation, arguing that the law as written does not actually require that this be the case.

Nonetheless, these exemptions remained in the series of zoning ordinance amendments approved by the remaining Council members.

Click Here to Read All the Changes Made to the Town’s Zoning Ordinances

At the meeting where these amendments were approved, Councilor Nicole Boucher framed the changes as “guardrails that wouldn’t be there otherwise,” and as a means by which to safeguard the Town from being subjected to lawsuits after LD 2003’s January 1 deadline comes and goes.

Town Council Chair Jeremy Gabrielson noted at the meeting that it is common practice for the Council to amend the zoning ordinances and that their decision to approve these amendments does not preclude them from making any additional alterations in the future.

Click Here to Read the Town of Cape Elizabeth’s Full Press Release

As of now, it remains to be seen how and to what extent these new mandated zoning ordinances will affect the character of and approach to housing developments in Cape Elizabeth going forward.

Similarly, it is as of yet unknown how, in practice, these one-size-fits-all affordable housing requirements will impact other municipalities — large and small — throughout the state.