The City of Portland is currently in the process of squandering a rare opportunity to allow for much needed new homes. Maine is currently in the midst of an unprecedented housing shortage; a recent study commissioned by MaineHousing, the Governor’s Office of Policy Innovation, and the Future and the Maine Department of Economic and Community Development found that we are short around 84,000 units of housing. The state passed LD2003 with the intention of addressing this crisis, but the Portland planning staff’s proposed implementation of this law will not even make a dent.
On Tuesday, October 10th, Portland’s planning staff presented to the planning board their proposed changes for our zoning code to comply with LD2003. Passed in 2022, LD2003 is a state law that intended to allow for the construction of more housing by updating zoning restrictions across Maine. Zoning restrictions (also referred to as land use restrictions) are local laws set by cities and towns to limit the sorts of buildings that are allowed to be built. The state put together a commission to study how these laws could be updated to encourage the construction of more housing, and LD2003 was built on the recommendations from that committee. Since zoning restrictions are mostly at the discretion of cities and towns, LD2003 sets some minimum standards that cities and towns must meet with their local laws to allow for the construction of more housing.
Cities and towns in Maine have until January 1st, 2024 to bring their local zoning codes into compliance. In order to pass these changes, they must first be read before the planning board, then at a subsequent meeting they must be voted on by the board. The same process must be repeated by the city council, first presented, then voted on. This puts three meetings (at minimum) in between now and the ultimate passage of these changes. Both bodies meet once roughly every 2 weeks, so it may take more than 6 weeks to pass these changes. This puts us deep into November trying to pass changes with only a month and a half (at most) of wiggle room. And that wiggle room is in the holiday season.
Because LD2003 combines committee recommendations into a single bill, it has several parts that are independent from each other. These recommendations are all important, but I am focused in particular on section 5, titled “Residential areas, generally; up to 4 dwelling units allowed.” It’s no mystery what the effect of this provision is supposed to be.
Zoning rules can get pretty complicated. Even people who work with these rules every day are often bewildered by the sort of jargon in zoning codes. I will try to keep things simple, but it’s important to define a few key terms before we get into it:
Minimum Lot Size: Minimum Lot Size is a per-zone restriction on how large a piece of property needs to be before the city will let someone build on it. The sizes are not based on what is realistic or safe to build, a common misunderstanding, but are intended to shape the character and look of neighborhoods. The minimum varies in different parts of the city. In the West End and Munjoy Hill, which are in the densest residential zone, it is 3,000 square feet, while even in the second most dense residential zone it doubles to 6,000. Lot Area per Dwelling Unit Minimums: This restriction further demands that each unit of housing require a certain amount of land. For example, in the R-5 zone the minimum lot size is 6,000 ft2 and the lot area per dwelling unit minimum is 3,000 ft2. If you have a 6,000 ft2 lot, you are allowed to build two units on it because each unit needs 3,000 ft2 of lot area. To build a third unit your lot would need to be 9,000 ft2. These laws limit density directly, so they are often referred to as Density Limits. Accessory Dwelling Unit (ADU): Accessory dwelling units are extra places to live that can be added alongside the primary structure on a property. They can either be attached to the main building or stand on their own; they are often small additions to the home or cottages for older parents to live in. Cities and towns usually have rules that make them somehow “secondary” to the main building, for example, in Portland you can add up to two ADUs so long as they’re smaller than the main building. ADUs are often perceived as less intrusive than other forms of housing, so cities and towns use them as a way to allow for more housing while preserving neighborhood character. Use Standards: These rules limit how land can be used. For example, a restaurant is not an allowed “use” in a residential zone. In addition to limits about numbers of units, single-family homes are also a separate “use” from homes with more than one unit. Use standards can also contain more specific requirements you must meet to use land in a certain way. For example, even if you are allowed to build a residence in your zone, that use is not allowed if the lot doesn’t have sufficient street access.
With LD2003 the state has set minimum standards that cities and towns must meet. What are those standards? I am specifically focusing on section 5, “Residential areas, generally; up to 4 dwelling units allowed.” This section requires that:
- Any lot that currently allows housing but does not have a home on it must allow at least two units, and at least four units if it is in a “growth area.” All of Portland, save for the islands, is considered to be a growth area.
- Any lot with a home on it must allow at least one extra attached unit and one extra unit that is detached from it, for a total of two potential extra units.
The section gives cities and towns the choice over whether lots that have become vacant after July 2023 are eligible for four units or not. If they choose to allow it, a lot with a home that was demolished in 2024 would be treated the same as the existing vacant lots. If they chose to prohibit it, only the existing vacant lots – only those which today, in 2023, are vacant – will ever be permitted to build four units by this law.
The section also gives cities and towns the option of enforcing density limits on these additional units provided they are the same for the first unit as they are for any additional units. For example, a city or town could say that you need 3,000 ft2 per unit, but they could not say the first unit on a lot needs 3,000 ft2 and any extra units need 300,000 ft2. This prevents cities from nullifying the law by making units beyond the first require way more land than any lot could realistically have, effectively preserving one unit only limits. While the law can’t be fully nullified in this way, density limits still could prevent some lot-owners from building the full number of units the law would have entitled them to if they are not large enough for the city’s tastes.
The Planning Staff Proposal
To comply with these rules, the planning staff could have simply proposed to upgrade the allowed number of units in all residential areas on the mainland. Instead, planning staff have opted to add what’s called a “supplemental use standard.” This allows the code to permit more units… but with additional restrictions. They are calling this supplemental use: “Additional residential use” (ARU) (See 6.4.2 in the proposed amendments to the land use code.)
If there is already a home on a lot, you would be allowed to add up to two units on that lot. However, staff added the restriction that if you add units in this way, you’d lose the ability to add accessory dwelling units (ADUs), of which you are currently allowed two. This makes the change a purely lateral move in terms of adding new housing units. It is true that adding your two units through this new method may give you more options, for example, your units wouldn’t need to be smaller than the main structure. However, it has several new limitations which may make the currently allowed ADUs more attractive.
For vacant lots that meet the minimum lot size in their zone and allow housing, you would be allowed to build up to four units. There are many lots which are vacant because they are too small to legally be built on, so these will not be included. The only lots that this applies to are lots that are currently legal to build on – but have not been built on for some reason. Usually, it’s a very good reason.
Much of this land is unofficially part of a park, or otherwise is unfeasible to build on due to drainage issues, oddly shaped boundaries, or lack of road access. After removing wetlands, lots with trails, and irregular lots, only 396 lots in the entire city will now allow up to four units, less than 1% of our land area. This allows for a theoretical maximum of 1,188 additional units total.
And even this is a generous analysis. In practice it would be surprising if even a handful of these lots were developed; many of these are vacant for reasons not captured in my analysis. For example, some are unofficially used by communities, or others may have deed restrictions which further narrow usage. They also tend to be further from places that are already built up with amenities like shops or transit.
Explore this interactive map to look at all of the examples.
The number of units made possible to build by these changes will not grow over time because planning staff have opted to add that restriction which prevents lots made vacant in the future from qualifying. That means the lots you see here, right now, are all we are ever going to get. This locks away over 28% of the land in the city from ever qualifying for these additional units.
A Wasted Opportunity
Section 5 of LD2003 is titled “Residential areas, generally; up to 4 dwelling units allowed”, but apparently the city of Portland does not fall under this “generally.” I have little doubt that planning staff’s recommendation follows the letter of the law, but it is clear they are explicitly proposing the minimum amount of change by way of a complex workaround.
LD2003 states that cities and towns may place a limit on lots that become vacant after the law is enacted. We don’t have to add this new language to our zoning code, but planning staff have chosen to.
We don’t have to prevent lots that add these units from adding ADUs, but planning staff have chosen to.
To add these limits, planning staff has added new language to our zoning code. Language that was not there before and is not required by the state. While this language only limits the new changes they have been forced to add to comply with LD2003, they are new limits that planning staff have added.
Getting rid of them would be as simple as not adding two bullet points, 6.4.2 C and E to be precise. We don’t have to keep these bullet points, but planning staff have chosen to.
We also have the option of adding language to make these new additions more cohesive with the rest of the zoning code. For example we could exempt these additional units from parking minimums and density limits like we currently do for ADUs. We don’t have to leave these tight restrictions in place for these units, creating two similar types of units with subtle benefits and drawbacks, but planning staff have chosen to.
Planning staff have also chosen to push for more time throughout this process to make these changes, claiming that complying with the law was very complicated, and that waiting for specific details from state rule-making was necessary. These justifications should not go unexamined. Complying with LD2003 is only complicated if your goal is to use sophisticated legal strategies to prevent change.
The law states that a city or town may allow more units than the number strictly required. There was no need to skate this close to noncompliance. We could have simply allowed people to build four units on any parcel that is large enough to do so, and we would have complied with this section immediately and unambiguously.
Now we are down to the wire to get changes passed. This is the first time the public has even been able to hear the proposal and the city only has a little over two months to pass it. Making these choices is not an apolitical technical decision, they are choices about what we value. Do we want to be a leader in housing in the state, or resist change as much as we possibly can?
The current proposal goes out of its way to do the latter. It makes our zoning code even more complex, during a ReCode process which is supposedly simplifying it. We now have a new subsection, with specific limits that references a specific calendar date. From now on, if anyone wants to know what they can build on a piece of land, they will need to pore through historical records to figure out what was there on that fateful July in 2023. It creates a new category of housing that is largely redundant as regards ADUs, but lacks the thoroughness that went into our original ADU provision. This complexity makes it hard for people to navigate the code, hard to make future changes, and hard to build the housing we desperately need.
How did planning staff present these proposals to the people of Portland?
On October 10th at 4:30, the planning board held their first workshop on these changes. This author provided a public comment that roughly followed my criticisms as laid out in this article. The planning board members were open to removing the prohibition on building ADUs if you build an ARU, and generally to treating all vacant lots the same, regardless of whether or not they had a home on them in July of 2023. However, ultimately, they seemed to be leaning against these ideas, and suggested floating these options directly to the City Council.
I would like to take the time to highlight and push back against a few key points discussed in the meeting.
Is LD2003 for Portland?
During the meeting planning staff repeatedly emphasized that this law was not passed with Portland in mind. Christine Grimando, Director of the Department of Planning & Urban Development said, “[I]t is really more focused on lower density areas, and lower scale areas, which again makes perfect sense because it wasn’t written for Maine’s largest city in particular”.
This was immediately followed by a slide of the new proposed downtown height overlay – which is in no way related to LD2003 – but was included to emphasize LD2003’s supposed irrelevance to Portland’s context.
This interpretation seems unlikely, given the fact that this law passed with unanimous support from the representatives of Portland and all of its surrounding towns: Westbrook, South Portland, Scarborough, Gorham, and Falmouth. Not only did they unanimously support this bill, if their votes were reversed it would not have passed. Furthermore, numerous groups in the Greater Portland Area shaped, refined, and advocated for this bill. Portland and its suburbs have been at the core of this process from the beginning.
Christine also stated that compliance with LD2003 would be a relatively small disruption for Portland because “in many cases Portland’s codes meet, or vastly exceed what LD2003 is requiring”. It is true that any city with apartment buildings has probably zoned at least some of their land in a way which vastly exceeds what LD2003 is requiring. However, having tall buildings downtown and proposing to make them even taller doesn’t change the fact that over 41% of the land in the city, which makes up 60% of the land zoned for housing of any type, is zoned for single family homes only. These neighborhoods are precisely the sort of areas in Maine which LD2003 was designed to reform.
Even much of the remaining 40% still is bound by restrictions that do not meet LD2003’s standards. This law was designed by our elected representatives, with us in mind, and it is intended to make real change in Portland. While the proposed zoning code changes were merely designed with us in mind.
‘Let’s Get this Passed Quickly and Save Big Changes for ReCode’
Overall, there was a sense of urgency from both the planning board and planning staff around passing these changes. This is understandable because we are very rapidly approaching the deadline to pass them. Planning staff also suggested that it would be simplest to simply pass the minimum changes now and add ideas around new housing to ReCode.
Just because we need to pass changes urgently, doesn’t mean we should just pass the first law in the room. Bringing a complex law to the table just weeks before the deadline makes it easy to deflect scrutiny but this law is not the simplest or fastest way to comply with LD2003. As I mentioned before, we could be just as compliant by removing the complicated additional restrictions from their proposal. We could simply allow four units wherever size and accessibility permits. We could do this without introducing any delay.
It is also risky to postpone these crucial changes for ReCode. It is no accident that LD2003 has coincided with our ReCode efforts. ReCode has been underway in some form since 2017 and there is no chance of it passing until 2024, at the very earliest. Any zoning policy change in a six-year period would coincide with our ReCode efforts. This slow pace of change is what prompted the state to pass LD2003. It is unclear when the ReCode process will be completed and what the changes will look like – if they are even ultimately passed. We should not let the slow and uncertain ReCode process prevent us from seizing an opportunity for change that we have before us right now.
Does one extra unit matter?
At the meeting there was some discussion of removing the limit on lots that currently have a home on them from ever being allowed four units. During this discussion it was repeated that the difference here is small because adding two additional units makes for a total of three units, making the difference only one unit. This arithmetic is, of course, true, but it misses the very important detail that the four units on a vacant lot can all be built at the same time, in one structure, like a small apartment building or in courtyard cottages. The language allowing you to add two units specifies that it can only be used if there is already a building on the lot and that they can’t both be in the same structure. This makes a massive difference in how affordably and sustainably one can build.
And besides, in as deep a housing shortage as we are in, every little bit helps.
What Can We Do?
None of this, to be clear, is to say that the planning staff is incompetent or has bad intentions. I suspect they have gone this route because they are wary that allowing more housing will result in backlash. They even said as much in the meeting. It is time to demonstrate that it is preventing more housing that will result in public backlash. It is not too late to change this proposal for the better, but the window is quickly closing. The first chance for the public to engage with this process is right around the corner.
There likely will be more time for public comment at their next meeting on October 24th. You can show up to the meeting or email the planning board at email@example.com to submit your comments. You can also reach out to the city council to raise awareness of this issue. The city council has the ultimate say here they may even end up being presented with multiple options. It is important they are informed as soon as possible so they can make changes before it is too late. You can email public comments to firstname.lastname@example.org.
Todd Morse ~ Todd is the founder and President of the Urbanist Coalition of Portland. You can follow their work at urbanistportland.me. He is a Portland resident and builds software for infectious disease research and has experience in data analysis.