2016-08-05 / Front Page

Council hears in-fill development debate

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — When the South Portland City Council met in a workshop July 25 to talk about so-called in-fill development, Mayor Tom Blake sought to make something clear from the outset: “This is not connected to the lawsuit. That’s not why we are here this evening.”

Then, for the next three hours, and for another three at a regular meeting Aug. 1, pretty much everyone who spoke referenced the lawsuit. In February, the courts ruled South Portland erred in allowing construction of a home at 79 Thirlmere Ave. in violation of a city ordinance that limits residential building density to four housing units per acre.

The lone exception in allowed debate seemed to be when Councilor Eben Rose spoke. He was commanded by Blake to “move forward” from discussion of the lawsuit, and to focus instead on the issue before the council – how to encourage construction on lots smaller than a quarteracre in size.

But then, Rose alone was fixated on the fact that, since 2007, when the city adopted a process for allowing development on such “nonconforming lots” – most of which pre-date the creation of zoning rules in the 1940s – it has permitted construction of 120 homes on lots of less than 10,000 square feet, including 22 on lots of less than 5,000 square feet.

Because about half of all requests for a hardship variance were granted by the city’s zoning board of appeals after 1990, when South Portland first developed standardized rules for the use of undersized lots, the 2007 update let the code enforcement officer issue permits for lots between 5,000 and 10,000 square feet, while reserving planning board review only on lots of less than 5,000 square feet.

The change was made, in the words of City Councilor Claude Morgan, because “once upon a time, the South Portland Board of Appeals would grant a variance to a Reuben sandwich.”

But the problem with the new rule in Rose’s eyes – it being the same problem eyeballed by Cumberland County Superior Court Justice Nancy Mills in her Feb. 5 ruling – was that when the city began allowing homes on nonconforming lots under the auspices of the 2007 rule change, it failed to notice apparent conflict with another provision of ordinance, one that states such construction “must confirm to the space and bulk regulations of the zoning district in which it is located.”

Mills ruling meant adhering to the maximum of four housing units per acre in the city’s Residential A zone, two units per acre in the Residential AA zone, and 10 per acre in the Residential G zone.

City Planner Tex Haeuser did not say how many of the 120 homes built on small lots over the past decade ended up violating the maximum housing density rule. However, he did say that before the 2007 ordinance update, 34 percent of lots in the Residential A zone, and 28 percent in the AA zone, were considered “buildable.”

“We have a problem. We have a pickle we’re in,” Rose said at the July 25 meeting. “The bulk zoning requirement is a hard parameter. It’s just as strong as saying you can’t put a refinery in a residential zone.”

“It was definitely a mistake that any one of us should have noticed and addressed at some point. But we didn’t,” Haeuser agreed.

“I don’t know how many permits were issued (in violation of the maximum density limit), it could be quite a number, but they were issued illegally,” Rose said. “They were issued without authorization because a code enforcement officer can’t issue a permit that is against the law.”

However, Blake showed little interest in dwelling on exactly how many building permits, in addition to the one at 79 Thirlmere Ave. overturned by Mills, had been issued “illegally.”

“What we need to determine is where we are going with this,” he said, cutting Rose of.

The reason the in-fill development debate was separate from the lawsuit, Blake has said, was because he and Councilor Linda Cohen had asked the planning department “15 months ago – long before the lawsuit” to update the council on the status the 2007 ordinance change, given that South Portland has now reached a near limit of land left to subdivide.

Still, the question of in-fill development unquestionably took on a new look in light of the lawsuit. In that case, Mills remanded the application back to the city’s zoning board of appeals, which had overruled the objection raised by abutting landowner Devin Deane, prompting the appearance before her bench. At the zoning board of appeals meeting, the application would presumably have to be referred to the planning board for further review, in part because AMG Properties of Falmouth was able to skirt board review in the first place by combining two lots originally marked out in 1915, creating a lot of about 6,000 square feet, presumably putting the sole decision-making power in the hands of code enforcement officer Pat Doucette. Mills ruled that should not have been the case.

In his suit, Deane argued Doucette also erred by allowing AMG to meet a rule requiring 25 percent of non-conforming lots remain in open space, by allowing the company to lease driveway spots from an abutting landowner. That means the property, eventually purchased in 2014 by Wei Zhang and Lesley Mo, has no driveway of its own.

To date, no one in city hall has offered an explanation for why the Deane appeal has yet to be scheduled for a new ZBA hearing. However, following the Superior Court ruling, and with a city council workshop on in-fill development still unscheduled, Doucette stopped processing applications for building permits for nonconforming lots.

“You get into a sort of impossible situation where (the ordinance) says we are going to allow you to build on nonconforming lots that are smaller than the minimum lot size if you meet requirements and standards, but at the same time you have to meet the density rule that is based on the minimum lot size,” Haeuser said when the council took up the issue on July 25.

“We as staff did not see how we could accept and go forward with applications to build on nonconforming lots when none of them would be able to meet the residential density standard,” he said. “Until the issue is resolved in some way, we don’t see how we can process applications for these lots.”

City Attorney Sally Daggett was more critical of Justice Mills’ decision, opining that the judge missed the forest of the 19- page zoning chapter on nonconforming properties by focusing on the tree of a single passage pointing to another verse about minimum lot sizes.

“It just doesn’t makes sense,” Daggett said. “The obvious intended benefit that allows development on existing nonconforming lots of record is that you can build on small lots, and you can’t do that if you also have to meet the density requirements.”

Rose has been a leading critic, dating to before his time on the council, of what he’s deemed Doucette’s “apparent inability to notice contradictions in city code,” or a history for offering interpretations later discounted by expert testimony, the long slog over a proposed propane distribution complex at Rigby Yard being the leading example in both cases.

“Corporate counsel explanations were a mystery to me,” Rose wrote in a July 26 email. “More lawlessness excused, seems to me.”

At the July 25 workshop, several councilors said they “had no idea” Doucette had stopped issuing the relevant building permits. Rose suggested the action was improper, amounting to a moratorium that would normally be in the sole purview of a municipality’s legislative body.

However, at that meeting the board got an earful from those who had been denied permits.

Will Cabana, who along with his wife were stymied after getting initial approval in January to build a second home on a 12,000-square foot Providence Avenue lot owned by his parents, said “without approval to build on that land at all, our ability to own a home of our own will be deferred indefinitely.”

Pine Street resident Emily Wright said her family was getting “priced-out” of their neighborhood, and had spent $8,000 on engineering plans to build a home on a vacant lot next to their house to live in one and rent the other. But, once denied a permit, that money had gone down the drain, she said.

“Our hands are tied because we cannot build or even sell our home until we know what’s possible on the lot,” she said.

Others not immediately affected by the permit ban said one possible solution, to require planning board review of all building on non-conforming lots, was similarly unacceptable.

“The city currently has the most comprehensive and restrictive building permit application process of all the towns in which I build,” said resident Joe Frustaci. “To ask the building permit applicant to submit all their plans to the planning board for review would be counterproductive and time consuming and extremely expensive.”

Frustaci said going under the gavel before the planning board can add up to $12,000 to the cost of a new home, an expense that would further distance the Cabanas and Wright from their homeownership goals.

Meanwhile, a number of residents also said that they had purchased small lots, often adjacent to their own, as investment properties, the sale or development of which was intended to ease the through their retirement years. Any change that would take away the development potential of those lots would be unfair, they said, given the rules in place when they were purchased.

“This represents of the taking of the value of land by ordinance and this will happen at great cost to the city,” said Arbutus Avenue resident Noah Smith.

At the Aug. 1 council meeting, Doucette provided the names of 33 individual property owners and real estate agents who had, since the Mills ruling, at least inquired about building on nonconforming residential lots, and been denied a permit.

The council unanimously adopted in first reading, a proposal to allow those 33 applicants to proceed through the development process with no density limit restricting home construction. That waiver goes back to Jan. 1, specifically exempting the 79 Thirlmere Ave. property. That means that when the planning board finally reviews the application, as ordered by Mills, it will have to conform to the density rules in place when Deane filed his appeal. That, Daggett noted, will be “an impossibility” given that the home is already in place.

Meanwhile, elimination of the density limit will only last one year, from the date of final adoption of the proposed ordinance amendment, a free pass councilors hope will not result in what Rose termed, “a rush to the court house.”

“I think a year makes sense so you don’t have to come back and extend it,” Haeuser said. “I don’t see that we’ll get a real big rush – we’ve averaged about 12 of these per year and there’s a limit on how many builders there are around here and how many lots they even know about to build on – but I really can’t say.”

During that year, the council will work on fixing South Portland’s rules for building on small, nonconforming residential lots, seeking to make those rules march handin hand will all other zoning regulations. Haeuser said that process will probably take “at least six months,” and Councilor Patti Smith urged her peers to dedicated time at every workshop meeting during that timeframe for zoning debate.

Ultimately, everyone on the council seemed to agree, rules allowing more in-fill development will need to implemented, in order for the tax base to keep pace with the city and school budget, and for construction of new, and hopefully, more affordable homes.

“Now that subdivision development in the city is just about stopped – there really isn’t any land left for new subdivisions – very few single family homes are going to be built in the city if we don’t have some kind of policy to allow building on non-conforming lots,” Haeuser said.

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