2016-11-04 / Front Page

Council gets fill of in-fill debate

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — What could be the largest public hearing before the South Portland Planning Board is on tap for Tuesday, Nov. 15, with invitations sent to as many as 8,000 property owners.

According to City Planner Tex Haeuser, notices of the hearing – which will cover proposed changes to city ordinances for development of small lots that do not comply with minimum standards for size and space – are being sent to all homes and businesses in the city’s A and AA zoning districts.

The hearing is set for 7 p.m. Nov. 15 and, because of the expected turnout, will be held in the lecture hall at South Portland High School, rather than in the board’s usual digs, in council chambers at city hall.

According to Haeuser, the proposed changes will “bring existing and required lot sizes into harmony in a simple, closely-tailored and innovative manner,” which he said, “provide a better alternative than board of appeals review, or takings lawsuits.”

Mayor Tom Blake and some other city councilors have denied a connection to any lawsuit, claiming they asked Haueser more than a year ago to begin looking at issues related to so-called in-fill development, in which lots are subdivided, with former yards becoming building sites.

In February, Cumberland County Superior Court Justice Nancy Mills 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, because city code enforcement officer Pat Doucette failed to notice apparent conflict with another provision in the codes that states such construction “must confirm to the space and bulk regulations of the zoning district in which it is located.”

Since then, the city has worked to redevelop how it permits development on smaller lots.

“It’s a question of whether we are going to allow nonconforming lots to be built on as we have been doing for the last 20 years, or whether that is going to be scrapped because residents have been testifying that they don’t like the results,” Haeuser said, adding, “We staff people in reviewing some of these projects, we are seeing ourselves that some of these situations are not working out as we had hoped.”

“My personal observation during my nine years on the council is that this is one of the most common complaints I’ve received,” Blake said. “And, when we do receive complaints on this, it’s not casual, people are angry, because their way of life has been altered. I’ve had people knocking on my door on a Saturday morning just fuming.”

Although there was no obvious fuming at an Oct. 24 city council workshop on the issue, there was no lack of comment on the proposed changes.

There’s a lot on the line for people who have owned property in this city for a long time,” said Wythburn Avenue resident Ed Coyne. “Now the ground is crumbling underneath us, because the game is changing.”

However, while some said longtime residents who had planned to subdivide lots for retirement income, or to pass on a legacy to their children, who might save money on first home if gifted land to build on, others said the city needs to act before getting overrun by rampant redevelopment.

“Any of these nonconforming lots need to come before the planning board in the future,” said Mussey Street resident Greg Lewis, referring to current rules that allow some development to bypass the board directly to a permit from Doucette.

“It is not the job of the city to make things cheaper or to reduce risk for developers,” Lewis said. “We all know what is happening here. These in-fill lots are being bought, developed and flipped, and it’s driving the prices right up. I know the theory is that we need more housing stock in order to keep the prices down, but in practice it hasn’t worked.”

Still, one councilor, Eben Rose, who has been a leading critic of the city’s approach to resolving the tangled legal issues relating to nonconforming lots, said it has yet to identify the lots in question.

“What we don’t know, and what is really important to have, is how many lots we’re dealing with, and where,” he said. “This is obtainable information. We need to answer the question for any potential builder – ‘Can I build on this lot?’ We’re talking about a discreet number (of lots) and what we have in front of us are real abstractions. That makes it real difficult for people to wrap their heads around, what would be the real outcome of this, and what lots could be potentially developed.”

Since 2007, when the city adopted a process for allowing development on 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.”

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

In his lawsuit, Thirlmere Avenue resident Devin Deane argued Doucette erred by allowing developer AMG Properties of Falmouth to skirt planning board review 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 her hands. Deane said Doucette further erred by allowing AMG to meet a rule requiring 25 percent of non-conforming lots remain in open space, by allowing it to lease driveway spots from an abutting landowner. That means the property, purchased in 2014 by Wei Zhang and Lesley Mo, has no driveway of its own.

The proposed zoning amendments would make explicit that maximum net residential density and minimum area per family are not applicable to meeting the required space and bulk standards elsewhere in the ordinance. It also would require all nonconforming lot applications obtain planning board approval, prohibit basements for nonconforming lots in certain sewer district areas, require a 12-foot separation of new buildings on nonconforming lots from existing buildings, removing the ability of landowners to adjust lot lines in developing nonconforming lots, “even if doing so results in less nonconformity.”

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