Opinion: Reform Betrayed – Portland’s Strategy to Dodge LD2003 Will Prolong Our Housing Crisis

On Tuesday, October 24^th, Portland’s Planning Board voted to recommend zoning changes to Portland City Council that will gut the impact of state housing law LD2003 in Portland. The details of these changes are described in a previous article. In brief, these changes add conditions limiting the number of lots that will be allowed four units to a rounding error. They place complicated limits on the remaining lots, making it confusing and difficult – though not impossible – for them to build a total of three units. They also leave existing lot coverage limits and parking minimums in place. These restrictions were designed to create neighborhoods of single-family homes, making it onerous to build any additional units, much less take advantage of affordable unit bonuses.

Due to the advocacy of the Urbanist Coalition of Portland, the initial proposed ban on building ADUs alongside LD2003-permitted units was removed, as well as the ban on two LD2003-permitted units being in the same structure. These are important steps in the right direction that will simplify our zoning code, unlock new housing potential, and make this additional housing more affordable and sustainable to build. We celebrate the addition of these improvements. However, the recommended changes still fall well short of the recommendations from the Commission to Increase Housing Opportunities in Maine.

The recommendations of this commission were the result of careful study and became the original draft of LD2003. It was only in committee when political considerations added a poison pill to these recommendations, allowing cities and towns to avoid enacting them through several convoluted loopholes. Ostensibly added to “accommodate the varied needs, contexts, and constraints faced by Maine municipalities,” these loopholes allow every town in Maine to decide that their restrictive land use codes are uniquely innocent of blame for our statewide housing crisis. 

This transformed LD2003 from, “cities and towns must allow at least four units everywhere,” to “cities and towns must choose between allowing at least four units in the area they selected as their growth area or prevent it by adding byzantine language to their zoning ordinance.” Faced with this choice, Portland’s Planning Staff, and now the Planning Board, have opted to recommend language that, “almost comes off to me as sort of the zoning equivalent of computer code,” said Planning Board Member Justin Barker, “with more if-then statements than I can count.” Unfortunately, these concerns were not enough to prevent him and the rest of the Planning Board from unanimously voting to recommend that the City Council pass this language into law.

To provide a taste of some of this complexity:

• You must build all your additional units at the same time to build the full amount of units you are allowed.
• If you have one unit, you are allowed three total units; if you have two units, you are stuck at two. However, you could potentially destroy one to activate the right to build two new units to reach a total of three.
• If you have one unit, you are allowed three total units; if you need to tear the original building down for whatever reason, you are back down to one. You must finish rebuilding the first unit before regaining permission to add the second and third, even if they are all in the same structure.
• If you have a vacant lot, your unit allowance depends on whether it was also vacant on July 1^st, 2023.
• If you have a vacant lot that was vacant on July 1^st, 2023, and build two units on it, you are stuck at two. However, you could potentially destroy one unit to activate the right to build two new units to reach a total of three. You could also destroy all existing units for the right to build four new units for a total of four.

These rules have been added not because they make sense in and of themselves, but because they limit new housing. “Ultimately, Staff is of the opinion that eliminating [one of the additional clauses] would open up all lots on the mainland” — Portland’s growth area — “for four units,” said Nell Donaldson, Director of Special Projects. Both Planning Staff and the Planning Board acknowledged that this language is less than ideal. They even said that allowing four units in Portland’s entire growth area might make sense and would make for a simpler zoning code, but they ‘could not’ support recommending it now. More than any policy conviction, they expressed a belief that any substantial change should be more appropriately made as a part of the ongoing ReCode process. They felt that changes made via the ReCode process are more legitimate because ReCode has had a more robust public engagement process than there has been for these LD2003 changes.

Does this justification hold water? Should we expect to see a full implementation of the LD2003 commission’s recommendations as part of ReCode? A first wave of ReCode changes have already been proposed by the Planning Staff: they fall short of compliance with even the weakened final form of LD2003, let alone the commission’s actual recommendations. LD2003 has been law since April 2022, but the ReCode proposal published over a year later does not comply – why should we expect a fuller-faith compliance from future drafts after Planning Staff has already added the convoluted language required to minimize its impact? It’s clear that voting not to implement the LD2003 commission’s recommendations now in order to wait for ReCode is voting to not to implement them at all.

It’s also worth asking: is the ReCode process really the fairest way to engage the public about LD2003? The ReCode process is massive: hundreds of pages of changes, updates to eleven chapters of the zoning code, and multiple new maps. LD2003 is far smaller, more focused in scope, and already recognizable to the public. News covered its progress through the legislature, and people from Portland and surrounding towns spoke in support of it during the state’s public hearing. Four units everywhere is a simple concept people can grab onto and talk about. Meanwhile, you would be hard pressed to find a member of the public who could summarize the ReCode changes. There are so many changes that the LD2003 conversation will get lost in details. For example, why is the little blue dot in Section 6, Page 3, Table 6A that allows 3-4 units in RN-3 but not RN-2? Which pieces of public engagement led to that change? How were they weighed against each other? How much public engagement would be required to get that dot on RN-2? How much for RN-1?

The reason public engagement around LD2003 has been less robust than for ReCode is simple: the Planning Staff chose not to engage the public about it. Instead, Planning Staff released their LD2003 changes quietly in a Planning Board meeting agenda two months before the deadline – the latest possible moment that would still allow the requisite two Planning Board meetings and two Council meetings to pass. In the meeting, unanimous public support for allowing 4 units everywhere in Portland’s growth area was dismissed; it was said that if there had been a proposal to allow this under discussion, the room would have been filled with opposition. But Portlanders have already voted for a slate of state legislators who established the LD2003 commission and unanimously voted for the resultant legislation – how many more Portlanders must show up to speak at a Planning Board meeting on a Tuesday afternoon asking for the full implementation of the LD2003 recommendations to counter an opposition that is given consideration in absentia? Which process is more democratic?

If housing advocates had completely missed the Planning Staff’s proposed LD2003 changes, posted only in a PDF attachment to a Planning Board meeting, would the Planning Board have pushed back on them because of our purely hypothetical presumed opposition? Housing advocates are asked to be patient for years while the City waits for any and all opposition to be heard and any urgency around the housing crisis dissipates. Planning Staff, and the Planning Board are operating under the assumption that adding this complicated language is the default option and requires no input from the public while doing anything else would require an overwhelming degree of support.

There was ample opportunity to engage the public over Portland’s implementation of LD2003 if Planning Staff desired it. LD2003 was passed in April 2022, there was no need to wait until so close to the deadline to comply. Planning Staff claim they could not have proposed changes until the rulemaking process ended on April 18^th, 2023. However, the only reason to wait for these specifics would be to ensure we could change as little as possible. The simple, straightforward solution of complying by allowing four units in Portland’s entire growth area – as well as robust public engagement regarding that proposed solution – has been possible for eighteen months.

Indeed, in March of 2023, Director of Planning & Urban Development Christine Grimando told the City Council that by July 1^st, 2023, proposed amendments to comply with “safe interpretations” of LD2003 would be available. At the same meeting, Councilor Pious Ali requested a workshop specifically on LD2003. He was told that it could not be done because the schedule was already full through May, and the deadline to comply was July 1st. Shortly thereafter, the state deadline to comply was extended until January. There was ample opportunity for this workshop, but it was not scheduled, and the LD2003 changes were not released in any form until October. Planning Staff made a choice not to engage the public on LD2003, but this is no justification to dismiss public engagement that is happening in spite of that choice.

Timing played an important factor in the Planning Board’s desire to wait for ReCode to make these changes. In addition to the short window they were given to comply, Grimando claimed that the Planning Board would have a chance to revisit this language during the ReCode process, which would happen soon because the ReCode process could be completed in the first half of 2024. This timeline is vanishingly unlikely. In June, 4 of the 11 chapters were released to the public for review. Public comment on this phase was closed on October 13^th, allowing about four months of public comment. This feedback is still under review, the next set of changes on areas that have not received any public feedback are not yet finished, and the new proposed zoning map has not been released. We can assume these won’t be released this year due to how little time we have left and the holiday season. Passing ReCode into law will require a minimum of four meetings that are scheduled twice a month, so this adds two months to the timeline. With four months for public engagement and two months for board and City Council meetings, the only way ReCode could be passed in the first half of 2024 is by cutting short the public review period for the zoning map and the majority of the chapters. This means passing ReCode in this time frame could only be achieved by minimizing public engagement; the very engagement that supposedly makes the process more legitimate.

Meanwhile, multiple groups and city politicians are campaigning to prolong ReCode with even more review and public comment. The ReCode process has been ongoing in some form since 2017 – a child born when the process began would now be in the first grade. This is not to say, however, that the ReCode process has been unreasonably slow. ReCode is huge, and it is understandable that making a massive amount of change in one big block would take a long time and require the involvement of many stakeholders. That said, we need to be realistic about how long it is going to take.

On May 9^th, 2023, Portland Chief of Staff Dena Libner said that ReCode would be passed before the January 1^st 2024 deadline, so the LD2003 changes could be made as part of ReCode, but by this date we will only have 4 of the 11 chapters reviewed. ReCode’s passage is probably over a year away, and it is possible that it will not be passed at all. What we pass now to comply with LD2003 will be the law for quite some time. In fact, if ReCode were to be passed as currently proposed, this byzantine language proposed to minimally comply with LD2003 would be the law indefinitely. We can’t be sure we will get to fix this later, so we need to get this right. Luckily, there is still time to get it right at the City Council vote.

“I think a lot of times,” said Planning Board Member Marpheen Chann at Tuesday’s meeting, “the law of unintended consequences is always brought up as, ‘caution, caution, caution.’ But I think in the last ten years, we’ve talked about [how] we need more housing but we are not willing to take the risks to implement solutions that build that housing. And when there is a solution that was brought up, then the answer is, ‘well, we have to go slow because of these […] unintended consequences’. And especially now, with ReCode already being set back because of the pandemic and staff shortages and whatnot, I feel like going bold, as bold as we can go on this. […] This piece can help us bridge to ReCode rather than seeing this as, ‘let’s do the bare minimum now and then wait till ReCode’.” We could not agree more. Choosing to wait is still a choice and it has real consequences. Since the ReCode process began in 2017, the cost of the median home in Portland has risen by 71%^[16]. While our zoning code stays the same, our city is changing, our housing crisis is worsening, and we aren’t keeping up. 

If you want to keep up to date or get involved go to https://urbanistportland.me/get-involved

Sources

Urbanist Coalition of Portland

1. A Wasted Opportunity – Portland’s LD2003 Response: Prior Townsman article by Todd Morse which goes into more detail on the specifics of the law
2. The Urbanist Coalition of Portland’s Proposed Amendments

LD2003 (State)

3. LD2003 Bill Tracker: This contains the full text of LD2003 as well as its different versions as it went through committee and all public testimony.
4. Full Report from the State Commission (Commission to Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions)
5. Resolution to form the State Commission
6. Final Rulemaking Document: This is the result of the rulemaking process.
7. Summary of Rulemaking Questions: These are all of the questions asked by various parties for rulemaking to make rules about. You can see the questions Portland was waiting on the answers to.
8. Portland’s Testimony in Support of the Original LD2003: Portland’s legislative and nominating committee submitted testimony in support of LD2003 before changes were made. They also said they supported flexibility but only to “accommodate the varied needs, contexts, and constraints faced by Maine municipalities.”

LD2003 (Portland)

9. Agenda and Minutes Center for March 20^th City Council Meeting with the first update on LD2003
   • City Councilor At Large, Pious Ali (55:12): “Is there a possibility of a workshop down the line?”
   • City Manager, Danielle West (55:24): “I will say that recollection of the calendar in March, April, and May is pretty packed. We could circle back with you on an update and I’ll flag that for some time in May.”
   • Director of Planning and Urban Development, Christine Grimando (58:10): “By the July 1 deadline I think those items will not be on the books yet but we will be diligently pursuing them. So there will be amendments out by then. We our approach to some of that interpretation discussion underway is to kind of safely sort of make safe interpretations of where we think they are gonna land in some cases”
10. Agenda and Minutes Center for May 9^th Legislative and Nominating Committee Meeting
    • Chief of Staff, Dena Libner (Christine Grimando Present and nodding) 9:40 : “The elements of 2003 wouldn’t need to be implemented until January of 2024, and that will accommodate our ReCode process really nicely. Staff won’t have to work on two parallel paths to implement some amendments to land use code and leave the other bigger picture ReCode ones for later.”
11. Agenda and Minutes Center for October 10^th Planning Board Meeting
12. Agenda and Minutes Center for October 24^th Planning Board Meeting
    • Director of Special Projects, Nell Donaldson (17:22) “Ultimately, staff is of the opinion that eliminating the teardown clause would open up all lots on the mainland for four units.”
    • Planning Board Member, Justin Barker (1:13:28): “It almost comes off to me as sort of the zoning equivalent of computer code with more if then statements than I can count as you are going through an individual lot consideration.”
    • Planning Board Member Marpheen Chann (1:11:37): “I think a lot of times the law of unintended consequences is always brought up as caution caution caution but I think in the last ten years we’ve talked about we need more housing but we are not willing to take the risks to implement solutions that build that housing. And when there is a solution that was brought up then the answer is ‘well we have to go slow because this, you know, unintended consequences’. And especially now with ReCode already being set back because of the pandemic and staff shortages and whatnot. I feel like going bold, as bold as we can go on this. … This piece can help us bridge to ReCode rather than seeing this as ‘let’s do the bare minimum now and then wait till ReCode’.”

ReCode

13. ReCode documents with dates of release: This is a page with all released ReCode documents, organized by phase, with their dates of release.
14. ReCode Process Events: This is a timeline of all ReCode related events.
15. Proposed ReCode changes so far, 4 out of 11 chapters that will be updated: These are referred to as the “First Wave” changes of ReCode Phase Two, not to be confused with ReCode Phase One, which had no waves.

State Housing Data

16. Maine State Housing Data provided by the Maine State Housing Authority: This is a valuable resource for tracking housing affordability in Maine over time. It has data up until 2022.

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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, data analyst, and builds software for infectious disease research.

Amy Oberlin – Amy is an engineer by training and a writer by temperament. She lives on Munjoy Hill with her partner, dog, and many plants, and is a member of the Urbanist Coalition of Portland.