At the November 13, 2023 Town Council meeting, the council voted 6-1 in favor of approving the proposed amendments to the Zoning Ordinance Relating to LD 2003.  The successful motion did not include the Ordinance Committee’s Statement of Findings, which were included with meeting materials as the committee’s philosophical statement of findings.

Councilor Timothy Reiniger was the single vote in opposition of the approved motion. This came after unsuccessfully attempting to amend Councilor Nicole Boucher’s motion to approve the draft amendments with a complete substitution of his own proposed amendments dated September 29.  Councilor Susan Gillis seconded Reiniger’s motion; the motion initially failed with a vote of 2-5.  Consequently, Reiniger requested that Town Clerk Debra Lane retake the vote with a roll-call vote.   Upon the roll call vote, Reiniger changed his vote and voted against his own motion; Gillis again voted in favor.  Ultimately, the original motion to approved the proposed draft amendments without including the Statements of Findings, passed 6-1; Reiniger voted in opposition.

Prior to the vote, a Public Hearing was held which lasted approximately 40 minutes.  Chair of the Ordinance Committee Penny Jordan and Town Planner Maureen O’Meara responded to some of the questions that were raised during the hearing.  One such question had to do with the removal of Site Plan Review for small multifamily buildings of up to 4 units.  

Jordan explained that under the rules of LD 2003, small multifamily buildings which fall under LD 2003 parameters must be subject to review equivalent to a single-family home; in Cape Elizabeth, a single family-home is not required to undergo a site plan review.  However, site plan review requirements for large multifamily dwellings which fall outside of LD 2003 parameters remain unchanged.   Town Attorney Mary Costigan said that there are areas under LD 2003 where interpretation of the law is required.  As with site plan review, the interpretation of the legal language led the Ordinance Committee to determine the Town could be held liable if a site plan review was required.  Councilor Timothy Reiniger disagreed with the interpretation and suggested that the LD 2003 statute does not require the removal of site plan review nor affording a small multifamily building the same parameters as a single-family home.

Another question had to do with whether or not the Town's current noticing requirements still apply.  O’Meara answered that current notifications remain unchanged.

Answers around what constitutes a “teardown” were also asked.  Town Attorney Mary Costigan previously provided clarity on how this question is answered.  A lot is considered a teardown if the lot is vacant at the time the property owner seeks a building permit to build 2-3 units.  The definition of a teardown is not met when the owner of an existing, single-family home seeks a permit to build 1-2 units on the same property.   LD 2003 amendments are neutral on this aspect; LD 2003 doesn’t restrict the ability to tear down what is already allowed nor does it promote teardowns.  The Ordinance Committee concluded, therefore, that since property owners are currently allowed to tear down and do in fact  tear down medium-sized homes in order to build a larger home, a property owner seeking to build a small multifamily building should be afforded the same standards.

The Ordinance Committee has set the maximum size of an accessory dwelling unit (ADU) to 1,100 square feet.   Jordan explained that since, “The intent of LD 2003 is to create housing,” the committee determined that this size would allow homeowners with the ability to provide adequate housing for family members.  “In looking across the country and researching other states that allow ADUs, they range in size on average from 800 to 1,800 square feet,” Jordan said. The committee’s decision was reinforced by the Housing Diversity Study Committee’s recently published results from their Public Opinion Survey which showed that the majority supported 1,100 square feet or greater.  Councilor Gretchen Noonan, a member of the Ordinance Committee, added that they had received feedback from numerous residents who were holding off an adding ADUs in the hope that they could build something larger than 600 square feet.

Gillis returned to the issue of teardowns and postured that under current ordinances, the town could, “Stop someone from putting in a four-unit on a tear-down and tell them to put up a single-family home.”  O’Meara clarified by saying, “If you wanted to freeze the status of the law right now, you could cap it at three units.”  To this, Gillis incorrectly postulated that this could mean an ADU and another unit.  O’Meara clarified and cautioned against mixing ADU standards with those required of multifamily units because, “You don’t need any additional land area to create an ADU.  For most people, who want to just get one unit, they are going to go with the ADU because it’s a lower barrier; you have made an effort to keep the barriers as high as possible for multifamily units.”  Anyone wanting to but in two or more units will need to come in under the multifamily provisions.  “I understand that the rule in the law is a little confusing to read, but what LD 2003 allows is one ADU and if you want to do more than one, you have to come in under the small multifamily provisions.  For example, if you have an existing home in the RA district and you want to build one unit, you need 3.4 acres and if you have a single-family home and you want to add two, you need 4.9 acres.”

 Gillis responded that she sees, “A difference between a small four-unit apartment house and a single family that could possibly have an ADU,” and said, “I would rather live next to a great, big, huge house than a small multi.”  O’Meara responded, “I’m glad you brought this up, because I’ve been deeply concerned and offended that there is some sense that ‘I wrote the zoning amendments.’ I work for the Town, the Planning Board, Conservation Committee, and the Ordinance Committee; I am the legs of the policy that is set by those committees.   I am tremendously respectful of the incredible amount of work that the Ordinance Committee has put into this, but policy decisions are not made by me and that’s not appropriate for them to be made by me.  I am happy to provide advice and support; I am sent off into the stratosphere to research all kinds of things and that’s my job.  It does a disservice to the elected representatives on this board to suggest that they are being lead by me, because that is not the way it goes.”

The council’s approval of the amendments to the Zoning Ordinance, “Provide guardrails that wouldn’t be there otherwise,” Boucher said, and safeguard the Town from being vulnerable to lawsuits without them upon LD 2003’s January 1, 2024 deadline.  Furthermore, Chair Jeremy Gabrielson said, “The council frequently votes on amendments to the Zoning Ordinance; voting tonight doesn’t preclude us from taking subsequent actions taken from the Housing Diversity Study Committee’s work or future possible state laws.”