The October 16, 2023 Public Forum on LD 2003 Amendments to the Zoning Ordinance provided a review of the proposed amendments and an opportunity for the community to ask questions in person or via Zoom.  The forum was hosted by the Town Council Ordinance Committee, made up of Chair Penny Jordan, Caitlin Jordan, and Gretchen Noonan.  Craig Freshley of Good Group Solutions, was the facilitator of the forum.  Tom Bell of Greater Portland Council of Governments and Town Planner Maureen O’Meara were also in attendance.  

Freshley opened the forum by saying, “Tonight’s meeting is based on the timeless principle of public policy development – 'understanding before judgement' – that is what we are asking you to do tonight; to understand before a decision is made.”  The ultimate decision will be made by the Town Council on November 13 whereby they hope to vote on the ordinance in time to come into compliance with the state law deadline of January 1, 2024.  Before forming individual opinions, “We want to make sure we have a shared understanding of the law that is being imposed upon you and all Maine municipalities,” Freshley said, “And we want to understand the proposed response.”  The Ordinance Committee has been working on forming a response since the law went into effect in the Spring of 2022.  “Truly, the place for opinions is at the public hearing on November 13; tonight is about understanding and clarifying,” he added.

Chair Jordan explained that the purpose of LD 2003 is to increase housing opportunities in Maine by removing regulatory barriers.  “When you think about this, really it’s about how do you leverage land in order to create more housing opportunities?  What we are really talking about is density,” she said.   Density via accessory dwelling units (ADUs), small multifamily buildings up to 4 units, and affordable housing density bonuses.  

The amendments allow all homeowners with the option to add an 1,100 square foot ADU within their property as long as it can meet setbacks.  Jordan said, “1,100 doesn’t go beyond what the law requires; it goes beyond what the current ordinance is.”  The current ordinance limits the maximum size of an ADU in Cape Elizabeth to 600 sq. ft.  The law sets a minimum of 190 sq. ft., but does not set a maximum.  In addition, added ADUs would not have to increase parking since LD 2003 does not allow municipalities to require additional parking for ADUs.  Any lot where a single-family home is or can be built may have an ADU, subject to setback requirements. The ADU may be within the existing dwelling, attached to the existing dwelling, or detached – which would be the most expensive option. An ADU cannot be used as a short-term rental.  For the purpose of calculating density, an ADU is not considered an additional unit, but rather accessory to the single-family home.

Jordan explained that a key concept is understanding “growth areas” and “rural areas,” which are listed within the Comprehensive Plan.  The growth areas in town are the RB, RC, BA, and Town Center; growth areas within Cape Elizabeth are 17%.  The rural areas are RA and comprise 50% of the town.  The remaining 30% of the town is RP, which includes specialty districts such as Fort Williams Park District.  “The growth areas are where we encourage growth and the rural areas are where we want to preserve the community character that we often associate with Cape Elizabeth,” Jordan said.

Image taken from October 16, 2023 presentation.

Another point which Jordan chose to highlight is the proposed use of the term “multifamily” throughout the ordinance instead of using both multifamily and multiplex.  This has been, “A point of discussion many times over the last several months. When we say that multiplex and multifamily are synonymous in Cape Elizabeth ordinances, that is because they are defined in a similar way within our ordinance.  We never said that they were synonymous with LD 2003,” she said.

Image taken from October 16, 2023 presentation.

The Ordinance Committee has selected a single definition – multifamiliy – to cover both multifamily and multiplex.  “We settled on multifamily dwelling as the umbrella for a building that contains two or more dwelling units,” Jordan said, “Because this creates simplicity within the ordinance.”

“As we look at where small multifamily units may be built, you also need to look at is the lot built already or is it vacant,” Jordan said.    The chart below breaks down the land requirement and number of total units allowed with growth areas by lots that have a building and lots that are vacant; and total units allowed within rural areas by lots that have a building and lots that are vacant. 

Image taken from October 16, 2023 presentation.

Jordan pointed out that a landowner within the growth area who wants to reach the allowed maximum of 4 units, “Would need 6 acres in order to make that happen.”  Within the rural areas, on a vacant lot, “You really can only have 2 units and if you have a built lot you have a maximum of 3 units, but you need 4.9 acres in order to make that happen.”

The chart below shows how many potential lots could meet the land requirements for adding multifamily units within each district.  For example, within the RC district there are seven properties that could meet the land required to establish four units.

Image taken from October 16, 2023 presentation.

Jordan added, “As you look at these you can look at the raw numbers, but you also have to consider other things: Are there wetlands; Is it buildable, what is buildable; What does the envelope look like; and all of those things.”

The next concept that needs to be considered in the implementation of the ordinance is the Affordable Housing Density Bonus.  

Images taken from October 16, 2023 presentation.

During the forum, a resident asked if the Town can require of a developer a guarantee of more than 30 years. The state only requires a 30-year guarantee, “But requiring longer could impact the ability of a project getting financing,” O’Meara answered. 

Another resident asked how the Housing Diversity Study Committee’s (HDSC) work would be utilized within the proposed amendments.  Councilor Noonan explained that state deadlines limited how much the work of the Ordinance Committee and the HDSC could intersect, “I think it’s entirely possible that there will be more changes coming based on what we see coming from the HDSC.  They have a report due to us at the end of December, which I am sure there will be a long process after that to decide what further changes to make to our zoning.  Right now we are making what is required by LD 2003, plus the ADU size since people have been asking for that.”

Councilor C. Jordan added that Town Attorney Mary Costigan outlines all of the rules that the state requires and the three areas that require local decisions: Multifamily dwelling; ADU size; and Tear downs/existing dwelling/vacant lot.  These three areas are, “Really the only areas that we have asked the HDSC to provide input on, because they are the only areas where we have ‘wiggle’ room,” C. Jordan said.  Freshley restated that there are three places in the state law that are ambiguous thereby requiring the Ordinance Committee to make, “A decision they thought was in the best interest of the town. Otherwise, they have tried to propose the bare minimum to comply with the law, leaving it to this other committee [HDSC] to go further to the extent they want to.”

Another resident asked whether the proposed changes to density bonus, would change the ordinance’s standards.  C. Jordan said, “The standards are not changed.” O’Meara added, “You are not entitled to the density bonus – you have the potential for that density as long as you meet all of the other standards.  The density is the maximum, it is not your entitlement.”  Standards relating to height, setbacks, and commercial space on the first floor are unchanged.

Other residents raised questions about owners being able to tear down a building in order to qualify as a vacant lot, which would increase the number of permissible units.  Noonan stated, “Under the state law we are allowed to decide whether or not to allow teardowns, because a vacant lot is allowed to have one more unit than a lot that is not vacant.  I want to be clear that it’s not a choice between you can’t build anything and then all of sudden you can build four; it’s a difference of one unit per lot [in growth areas].”  However, the number of lots within Cape Elizabeth that are capable of housing a 4-unit multifamily building are few. 

O’Meara addressed that the issue of tear-downs has come up in two different ways.  First, “How many lots do we have right now that could fit a three or four-unit building – and there is not that many.”  Secondly, there has been concern that someone could possibly assemble more land in order to add a maximum-unit structure.  To that, O’Meara said that the Ordinance Committee, “Performed an exercise that if you were going to try that in a typical RC neighborhood, to buy up enough built lots in order to assemble 65,000 square feet, you would have to buy six or seven lots.  You would be spending $6-7 million, and then scraping off the six houses so that you could build one 4-unit building.”

Following the public forum, the Ordinance Committee will take the input received to their next meeting scheduled for Wednesday, October 25 at 7:00 p.m.  The meeting will review potential updates to the draft amendments and conclude, ideally, with a vote by the committee to forward LD 2003 Zoning Ordinance Amendments to the Town Council.  The Town Council will hold a workshop on Wednesday, November 1 at 7:00 p.m. to review and discuss the draft amendments, ahead of a public hearing and vote scheduled for the next Town Council meeting on Monday, November 13 Town Council at 7:00 p.m.

A recording of the entire forum and presentation can be found here.  The most recent LD 2003 Zoning Ordinance Amendments, materials for all meetings pertaining to LD 2003, and documents can be found on the Town’s LD 2003 page, located under the Town Spotlight section, at the bottom of the Town Homepage.