Disclosure: Ashley Keenan is a member of the Urbanist Coalition of Portland, but did not participate in the night’s events.
At last night’s City Council meeting, a series of amendments, sponsored by Councilor Roberto Rodriguez and the product of collaboration with the Urbanist Coalition of Portland, decisively altered the path Portland is taking as regards its zoning code. Prior to council deliberations a parade of public commenters, which included delegations from both the Maine chapter of the Democratic Socialists of America and the business advocates of the Portland Regional Chamber of Commerce, voiced their support for the outsider amendments. Against the recommendations of Portland’s Planning and Urban Development staff, and over the protestations of Portland’s new mayor Mark Dion, these amendments were passed by a progressive majority and open a new chapter in Portland’s land use history.
The amendments were made to the order intended to bring Portland into technical compliance with state law following the passage of LD 2003, a land use bill passed in Augusta.
Passed in April 2022, LD 2003 is a state law intended to facilitate greater housing development across Maine by requiring towns and cities to relax their land use codes. Land use codes, or zoning codes, are rules about what sort of structures can be built where, and for what purpose, usually with an eye to limiting the density of new construction. Sensing the state’s many municipalities had enacted overly-restrictive codes, and had thus caused an 84,000-unit housing shortage, the state committee charged with drafting a law to ameliorate the situation produced LD 2003. This bill intended to permit landowners to build at least four housing units in any plot in a town’s “Growth Area,” (for Portland that means the whole mainland,) and at least two units everywhere.
Augusta gave the municipalities until July 1st, 2023 to update their zoning codes to comply with the new law. When this deadline drew close with many towns and cities still dragging their feet, (Portland’s staff had yet to promulgate the necessary changes,) this deadline was extended to January 1st, 2024. While smaller towns passed laws meeting the state requirements, Portland’s Planning and Urban Development department produced a proposal for Planning Board review only in late October, with the City Council only being able to vote on it in December, leaving little wiggle-room. The text offered by the planning staff, furthermore, was cheeseparing in its implementation. Assuring the Planning Board that staff expected the multi-year ReCode effort to be completed in 2024, planning staff explained that they understood their position as maintaining the status quo until the zoning code received the ReCode changes.
As elaborated in Reform Betrayed, published in the Portland Townsman, the Urbanist Coalition of Portland (UCP) had been highly critical of staff’s proposal, noting that the number of actual units which would become viable was negligible. While representatives of the group, dedicated to land use reform and transit-friendly neighborhoods, attempted to have their alternative proposals taken up by the Planning Board, the UCP ultimately could offer their analysis only during the public hearing. Part of their concerns were addressed in a late revision to the text by staff, but the Planning Board, despite misgivings, approved the planning staff’s proposals as-written.
Roberto Rodriguez, a City Councilor elected partially on the promise of housing reform, took notice of the opportunity. Collaborating with policymakers from the UCP, he settled on a list of four amendments (1, 2, 3, 4) to bring to the Council debate on the law. These amendments would, in conjunction, see that all lots in Portland which currently allow for one housing unit be treated equally, regardless of whether or not they are currently vacant, and permit at least four housing units on each one (plus up to two potential ADUs) without heavy parking requirements. These changes would be accomplished not by adding further provisions to the staff texts, but rather by removing various restrictions which staff had included.
While these changes would not radically alter the zoning code today, they would potentially allow for thousands of homeowners and other residents to build additional housing units on their land which they would not have been able to under the original proposal.
On a deeper level, however, Councilor Rodriguez was also breaking with long-standing norms about how Portland governs its land use. Until now, when changes were being considered to the Land Use Code, the process was nearly always for staff members in the planning department to draft language, and for the unelected Planning Board to incorporate community input into the text, with the City Council acting as a final check to approve or deny the work thus created. Rodriguez, now, had collaborated with an outside planning body – the Urbanist Coalition of Portland, a nonprofit advocacy group – and was bringing meaningful policy decisions to be hashed out among the elected City Councilors directly. If this had failed, it would have been considered perhaps unsurprising, but now that it has succeeded, it remains to be seen whether this has opened a new path for housing policy in the city.
In any case, the staff proposal as approved by the Planning Board remained the base order to be reviewed by the council, and Planning and Urban Development Director Christine Grimando continued to recommend their own narrower policy.
In preparation for the City Council meeting in which these reforms would be discussed, supporters of Rodriguez’ amendments reached out to a wide variety of advocacy groups, elected representatives, and local residents. This variety would be put on full display at the December 18th council meeting. Naturally, many members of the UCP spoke in favor, including President Todd Morse, as well as Nathaniel Ferguson, Wendy Cherubini, Liz Trice, Amy Oberlin, and others. These stressed the dearth of housing construction in Portland compared to demand, and the various burdens this puts on renters and homebuyers.
The most notable speaker of the evening was Ryan Fecteau, previously Speaker of the Maine House of Representatives and – as he himself put it – “The author of LD 2003.” Until recently part of Governor Mills’ administration, and now at Avesta, Fecteau had been a key legislator in statewide housing policy, and the primary moving spirit behind LD 2003. He urged the council to adopt Rodriguez’ amendments as being the fulfillment of the law’s spirit, and even responding to an oversight he saw as existing in the bill. “Legislators don’t often acknowledge when we have made mistakes, but I am doing that here,” he said, noting that the changes would allow for affordable housing to take greater advantage of the state law.
Eamonn Dundon, speaking on behalf of the Portland Regional Chamber of Commerce, strongly supported the amendments, rejecting Director Grimando’s optimism about ReCode and hammering home the need for more housing as soon as possible. Wes Pelletier, Campaign Co-Chair for the Maine Democratic Socialists of America (DSA), also spoke in favor, saying it could “open the door” for social housing, public development, and other equitable housing models.
While a City Council meeting featuring comments from Dundon and Pelletier is common, seeing them speak on the same side of an issue is an extraordinary sight. Pelletier acknowledged this himself, admitting that “It hurts me to find myself on the same side as some of the people speaking tonight, but this is something that we have to be doing.” While motivated by different causes, the capitalistic Chamber and the anti-capitalistic DSA both threw their weight behind the Rodriguez-UCP amendments.
Other local notables spoke as well, including Zack Barowitz, a former Charter Commissioner for Portland. He lamented the city’s falling behind of its neighbors, costing us in prosperity and influence. “We’re essentially a shrinking city!” George Rheault spoke in favor as well, urging the council to take away the power of the “housing cops” in the planning department. In total, 18 people spoke up in favor of the amendments, with none opposed.
With comments heard, newly-elected Mayor Dion called the council to hear legal counsel and prepare to discuss the issue themselves.
Evidently flummoxed by the unorthodox circumstances, Corporation Counsel Goldman recommended that the Council send any “substantial changes” to the Planning Board for further review, but failed to specify whether this was merely normative courtesy or constitutionally obligatory. When Councilor Ali asked him to clarify whether or not the Council was legally bound to involve the Planning Board, Goldman declined to clearly state one way or another, and repeated that his recommendation was to do so. This recommendation was based on the “limitations” on the City Council’s authority to amend the city code, citing Chapter 1.10 of the Land Use Code.
Chapter 1.10.1 “Authority” reads, in total, as the following:
“The City Council may amend this Land Use Code and the zoning map incorporated herein.”
The remainder of the chapter concerns applications for amendments to the code from property owners and other outside parties, not the City Council itself.
Planning Board chair Mazer stepped forward to convey that he would, of course, make reviewing the amendments a priority for the Board should they be referred there, but that the Board would not meet until into the new year, and thus would not be able to reach any decision before the state-level deadline, especially if they held a workshop session first.
Councilor Rodriguez spoke up to assert the rights of the Council to legislate as they see fit, and that in any case his proposed amendments are simplifications and removals of restrictions, and hence do not warrant any extended engagement as new restrictions or complications would. He doubted the value of spending time and effort on running a circuit with the Planning Board, and asked his colleagues to consider his amendments as the city’s governing body. He then challenged Corporation Counsel to explain how his understanding could ever permit the City Council to act independently of the Planning Board’s recommendations.
Goldman suggested, again, that the Council pass the underlying order while sending the amendments to the Planning Board for them to discuss, and that after that Board has made its recommendations, that the City Council can then come to its own decision. Rodriguez, further challenging his view, claimed that this could always be used to undermine Councilors’ own decisions and empower the Planning Board at the expense of the council. Mazer, again stepping forward, explained that the Board’s position is merely to offer recommendations, and that the Council can act freely.
New Councilor Sykes, after a brief inquiry into the provenance of Rodriguez’ amendments, asked what the ramifications of missing the state’s January 1st deadline would be. “It’s not entirely clear,” Corporation Counsel answered, noting that there was no enforcement mechanism in the law to punish noncompliant municipalities. He then repeated multiple times his prior recommendation of passing the underlying order and referring the amendments to the Planning Board, expecting a new Council vote in February. Goldman finally reiterated that any negative consequences for missing the state deadline would be highly unlikely, but could potentially open up the city to lawsuits.
Before discussion properly began, a minor fix to a numerical typo in the drafts was quickly and unanimously passed.
Opening deliberations, Councilor Rodriguez first thanked planning staff and acknowledged their work and their position, stating that his intention was to stake out a bolder policy response in embracing the new state law. He then introduced the first amendment, which removes a provision tying lots to their status on July 1st, 2023 indefinitely. While in the planning staff’s proposal, lots which were not vacant on July 1st would never be considered “vacant” for this purpose, this amendment would make it so that any lot which becomes vacant may be treated as vacant, and so be entitled to the full flexibility of LD 2003.
Following a signal of general consensus from the rest of the council, Mayor Dion stressed his opinion that the Planning Board ought to be able to hear from concerned residents and come to their own conclusion about the amendments. “I think process is important,” Dion said, “We do have a housing emergency, but our decision tonight doesn’t have anything happen in 2 or 3 weeks.” He agreed that building more housing was a goal, but believed that maintaining transparency and hearing public input was also a goal. Dion clarified that his vote, which would be against, was not based on the merits of the amendments, (“some of which make good sense,”) but rather on the rushed manner of implementation.
With no other comments from councilors, the body passed the first amendment 8-1, with only the new mayor opposing.
Rodriguez introduced the second amendment, which removed all distinctions from mainland parcels and entitles all owners to build up to four units on any non-island lot which currently allow for one unit.
Councilor Phillips spoke up seeking to discuss an overarching issue: whether or not to send any of these amendments to the Planning Board first. She expressed skepticism that the Planning Board process would add anything of value to the Council’s decision-making, and noted that the Planning Board had an opportunity to review the Urbanist Coalition’s proposals and declined to do so. Chair Mazer again stepped forward, and while he agreed that the Board could have reviewed these proposals, he suggested that had such proposals been on their agenda, it “would have brought out additional segments of the population.” These hypothetical objectors, then, would have participated in building a compromise, but that in fact the Planning Board merely approved the planning staff’s proposals as submitted.
“Is this the first time you’ve heard about these amendments?” Phillips asked Mazer, catching him somewhat off-guard. After repeating the question, he responded that he had seen them before during the public hearing portion of the Planning Board meeting, but not submitted by a City Councilor. Director Grimando stepped forward to relieve Mazer, stating that technically the amendments as precisely present then did not yet exist, but Councilor Phillips seemed satisfied in the answer that the Board had seen the proposals before – even if not in their final form.
Rodriguez, being best positioned to explain the provenance of his sponsored amendments, explained that the City Council usually has very limited interaction with the planning process until the very end of projects. By the time the City Council hears about proposals in full, he elaborated, there has generally already been substantial consensus reached by other parties, and this limits how much the Council can really change. In this case, he responded to the Urbanist Coalition’s outreach to prepare for how the Council can, this time, make a real impact on addressing the housing shortage, and that is why he has introduced the amendments.
Councilor Bullett, repeating the words of Mayor Dion and the DSA’s Wes Pelletier, re-affirmed that Portland is in a “housing emergency” and that while Rodriguez’ amendments won’t fix things themselves, that they can “open the door” to change. Councilor Fournier had her own questions about process and law, notably asking whether the City Council has the power to amend Portland’s Land Use Code freely. Corporation Counsel, again, stated that there are state statutes restricting the Council’s ability to do this, and upon being pressed by Fournier again, cited §4352 of Title 30-A, Part 2, Subpart 6-1, Chapter 187, Subchapter 3. While no part of this section prevents the City Council from amending the code, requirements for notice may be relevant.
Councilor Sykes, repeating an earlier remark, noted that the Council was being asked to legislate in response to state legislation, LD 2003, and as such she is not concerned about treating these amendments as if they were new proposals from the blue. Rather, it was the council’s prerogative to ultimately decide how to implement the state-mandated changes, without needing the Planning Board’s approval; she signaled her support. Mayor Dion reiterated his own opinion that sending the amendments to the Planning Board would be wise, but did so only in brief, as he felt that he remained a lone voice.
The second amendment passed 8-1, with Dion again being the sole dissenting vote.
Rodriguez introduced the third amendment, which relaxed several of the restrictions on what sort of units could be built under the LD 2003 provisions. For example, no longer making specific requirements of attached or unattached units, or no longer disallowing ADUs on lots which take advantage of this law. Instead, merely the standards of the underlying zone would be applicable.
With no further comment, the third amendment passed 8-1, Dion opposed.
Rodriguez then introduced the fourth amendment, which eliminated the parking requirements for such structures built under LD 2003’s provisions.
With no further comment, the fourth amendment passed 7-2, with Phillips (whose concerns about inadequate parking also affected a previous discussion) joining Dion in opposition.
All of Rodriguez’ amendments had now passed and been baked into the order.
With only the underlying order left to pass, Rodriguez again thanked planning staff for their hard work. He also counseled any concerned listeners that the full panoply of options which would be made available to landowners would be unlikely to manifest in a single lot, and that the real effect of this order will be providing options for many different kinds of housing.
After a brief round of procedural clarifications, the order passed 8-1, with Mayor Dion remaining in opposition.
Single-family zoning is officially a thing of the past in Portland, after nearly 100 years of this regulation being on the books. What’s more, the entire mainland of Portland now has residential zones which allow fourplex construction, with additional ADUs generally allowed, all with minimal parking requirements. This, while it won’t change the face of the city overnight, should be regarded as an incredibly decisive moment in Portland’s administrative history.
Just as important as what was done is how it was done. Essentially ignoring pleas from Corporation Counsel and planning staff, Portland’s City Council took this decision into its own hands and made a policy choice on its own. This repudiation of “the process” as traditionally understood may, in the future, be seen as a turning point in the emergence of a more active, activist council. It also may become a precedent for the involvement of outside advocacy groups in building alternative resources for elected officials to use. Instead of relying on staff, City Councilors may look to groups like the UCP to study issues, provide data, draft policies, and gather support in a way that had previously been seen as gauche.
Only time will tell what impacts this action will have, but anything which can bring together Eamonn Dundon and Wes Pelletier has got to be something special.
Ashley D. Keenan – Ashley is an editor of the Portland Townsman, with work focusing on the mechanics of local government and housing policy, and also a member of Portland’s Historic Preservation Board. You can reach Ashley personally at email@example.com.