Now that LD 2003, the housing bill sponsored by Speaker of the House Ryan Fecteau (D-Biddeford) has been signed into law, municipalities around the state, with some exceptions, will be required to allow the construction of up to four dwelling units per lot when that regulation goes into effect on July 1, 2023.
But despite new statewide zoning requirements, municipalities are still taking different approaches to reforming local ordinances, particularly those that affect housing development and zoning. Two of those cities are Portland and Auburn.
Portland recently completed the first phase of its ReCode Portland project, during which the city reorganized and streamlined its code. In the second phase, it’s looking to rewrite the code to better reflect the goals of Portland’s Plan 2030, a comprehensive plan the city council voted to adopt in 2017, and address technical issues and concerns raised in public feedback.
The drafting process of phase two has just begun and the city expects the process to extend throughout this summer and fall. It will then solicit additional public engagement, including input on draft code language.
But while the particulars of the new code are yet to be finalized, the city’s comprehensive plan does provide a set of principles that will guide new land use regulations.
These include a goal of making Portland an “equitable, sustainable, dynamic, secure, authentic, and connected community.” According to the land use code evaluation, the city’s comprehensive plan also supports several land use principles, including the development of “one Portland, where no one area of the city carries all expectations for accommodating growth and all areas can expect appropriate City services and amenities.”
Other goals include complete neighborhoods, a strong downtown, a “thriving working waterfront,” “priority nodes and corridors” that align with the city’s multimodal transportation, and “connected transportation, open spaces and infrastructure” as the backbone of future growth.
According to Heather Donaldson, the director of special projects for the city’s Planning and Urban Development Department, housing is a “major focus” of the second phase of ReCode Portland.
“[We’re] not only looking at where we can create opportunities for additional housing city-wide across all neighborhoods, but where there are opportunities for concentrated density, for instance around transit centers,” said Donaldson, who also noted that doing so could help the city meet transportation, climate, and equity goals at the same time it looks to address the city’s housing needs.
“[J]ust as we’re looking for ways to foster housing development in all its forms, we’re also looking specifically at our affordable housing regulations to see where we can create opportunities there,” Donaldson continued.
Portland’s ordinances related to affordable housing, defined as housing for which rent and other housing expenses do not exceed 30 percent of household income, are laid out in Article 18 of its land use code.
The code also contains definitions for low-income households, where income does not exceed 80 percent of area median income (AMI) for the area of residence, moderate-income households, where income does not exceed 120 percent of AMI, and very low-income households, where income does not exceed 50 percent of AMI.
As currently written, Portland’s ordinances that relate to affordable housing are intended to “offer incentives to developers to include units of affordable and workforce housing within development projects, thereby mitigating the impact of market rate housing construction, or the demonstrated increase in affordable housing needs resulting from the creation of new lower-income jobs, on the limited supply of available land for suitable housing, and helping to meet the housing needs of all economic groups within the city.”
To this end, the city offers fee reductions commensurate with the percentage of new units that are intended for low-income or workforce housing, defined within the code as having a household income that does not exceed 80 percent of AMI. If between five and 10 percent of new units in a housing project are affordable for low-income or workforce households, the developer receives a five percent fee reduction. The maximum reduction a developer can receive is 25 percent.
Fees eligible for deduction include site plan review and inspection fees, subdivision review and inspection fees, impact and administrative fees, and construction and permit fees.
The code as currently written also includes an ordinance related to ensuring new construction housing developments that create 10 or more new dwelling units for rent or sale include workforce housing units. At least 25 percent of units in a project that fits this description must qualify for workforce housing, or the developer can pay a fee of up to $15,000 per unit for some or all of those units to the Housing Trust Fund. This measure was part of the Green New Deal referendum passed by the city’s voters in 2020.
Brit Vitalius, president of the Southern Maine Landlord Association, said his group is not involved in the ReCode process but that current thinking about housing “encourages more density, lower parking requirements, and an easing of restrictions that inhibit smart growth.”
Vitalius also said that his association recognizes the need for more housing in southern Maine and across the state and “supports reasonable updates to housing code.”
Vitalius also spoke unfavorably of Portland’s Green New Deal policy.
“Ultimately, for all the City’s recode efforts, the ‘Green New Deal’ which was passed by referendum in 2020 will do more to worsen our housing situation than the recode can help. The GND is a housing ordinance in disguise as an environmental one. This ordinance will do more, on its own, to discourage housing development in Portland. Instead, the 25% inclusionary zoning requirement will drive the new units out of Portland and exacerbate the non-green, urban sprawl which most progressives profess to be against,” Vitalius said.
Residential construction permits declined by nearly 82% in the programs’ first year according to a study from the Boulos Company, a commercial real estate firm operating in Maine and New Hampshire.
According to Donaldson, the goal of the ReCode project is to “revise regulations in whatever way is needed to meet the objectives of our comprehensive plan.”
What this means for the city’s code as a whole, including ordinances that apply to other aspects of city management besides housing, and whether regulations will be added or removed, hasn’t yet been finally determined. According to Donaldson, the project may involve “rewriting parts of our land use code; it may mean adding new material or eliminating regulation that isn’t helping the city move the needle on housing, climate, complete neighborhoods, or other big concepts from the plan.”
Donaldson also says Portland is looking at models, especially those that look to create opportunities for more housing that serves a more diverse set of needs, from across the region and state.
Another in-state approach to zoning reform is underway in the nearby city of Auburn, located about 35 miles from Portland, which Mayor Jason Levesque has said he believes is a nationwide model of zoning reform.
“What Auburn has done is reduced regulations and corresponding permit fees by over 40 percent. As an example, a permit fee to build a home used to be anywhere from $600 to $1,200, depending upon the size of the home. Today it’s only $25,” Levesque said.
Additionally, the city has waived all permitting fees for veterans and 50 percent of fees for veteran-owned businesses. It also eliminated commercial parking requirements, which Levesque says has created “more flexibility in the commercial and industrial sectors, which has led directly to several businesses opening, Target and Olive Garden specifically.”
Auburn is also in the process of converting all of its residential zones to a “less restrictive, form-based code.” According to Levesque, this allows a lot of flexibility within the city. He estimates the city is about one-third done with rezoning.
Further, Auburn made accessory dwelling units (ADUs) allowable in all residential zones in 2021, before LD 2003 went into effect. That Auburn was ahead of the state on eliminating single-family zoning means none of their ongoing reforms will be impacted by the state’s new requirements when they go into effect in 2023.
“A lot of LD 2003 was inspired by the city of Auburn and our zoning reforms and the positive outcomes associated with those reforms,” Levesque said.
In March, Levesque testified in favor of the bill during its public hearing before the legislature’s Labor and Housing Committee. In his testimony, Levesque noted that the city was in the process of adopting, or already had adopted most of the bill’s recommendations.
“As for the ones we have not yet adopted…we will incorporate those into our work over the next couple of months,” Levesque stated in his written testimony.
Levesque noted that after the city eliminated “single family exclusionary housing zones,” as well as took other steps to allow ADUs, eliminate minimum parking requirements, and reduce the number of “complicated residential zones,” the reforms led to the creation of 800 new market rate housing units, which are already built, being built, or having received planning permission.
But increasing the city’s housing stock isn’t the only focus of the city’s reform efforts.
“Auburn’s philosophy is to open up the city for opportunities and that would allow the market to solve some of our issues with regards to housing. By not just focusing on one type or one area, the market’s going to help provide all types of housing throughout the city that’s going to be truly attainable for people regardless of their income or their socioeconomic background,” said Levesque.
Levesque’s goal is to make living in Auburn attainable for anyone who wants to live there, regardless of income level.
“It’s about attainability, that means housing that’s attainable for someone who makes $100,000 a year or someone who makes $35,000 a year and everything above or beyond. No one should be denied the ability or the opportunity to either build or purchase a home that they would like because of their income level.”
“We do believe in an all-of-the-above approach and execution, and that’s what we’re doing. We’re executing,” Levesque concluded.
Photo: Pixabay, City of Auburn
