2016-12-02 / Front Page

Big change coming for small lots in city

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — The months-long process of updating South Portland minimum lot size requirements for development will now drag out into the new year, after the council decided during a Nov. 28 workshop on new frontage rules that it will send the 24-page zoning package back to the planning board for review.

With the planning board already looking at a packed agenda for its Dec. 13 meeting, which will include review of a proposed moratorium on marijuana retail shops, the zoning rules are likely bound for a Jan. 10 public hearing. Assuming the planning board gives a thumbs up to the change – which would reduce the minimum required street frontage for so-called “nonconforming lots of record” in the city’s Residential A zone from 75 to 50 feet, and in the Residential AA zone from 100 to 75 feet – the council would hold a first vote on the new rules Jan. 23, with a vote for final passage on Feb. 13.

The change would also come with a three-year “sunset clause” that would revert the change back to the current minimums barring further council action.

There is no guarantee those changes will come to pass, however. By the headcount of Mayor Tom Blake, who was attending his final council session before being termed out of office – four councilors currently favor the reduction in street frontage. There was no formal vote on the question, as Monday’s meeting was a workshop. Because the change is a zoning amendment, the city charter calls on a super majority of five yes votes on the council for final passage.

With incoming councilor Susan Henderson appearing to mirror Blake’s favorable view on the change, that leaves proponents needing to possibly flip at least one vote, although it’s not entirely clear who, as not everyone gave a definitive yes or no during workshop commentary on the frontage reduction.

Councilor Eben Rose, for example, preferred not to wade into the minutia of the ordinance wording at all, saying the new rules appeared to be at odds with the city’s comprehensive plan, and suggesting the council had not done enough to involve the maximum number of people in ongoing debate on the topic.

Interim City Manager Don Gerrish said city staff issued 6,256 postcards at a cost of $2,160, inviting residents affected by the change to a Nov. 15 planning board hearing. Many councilors have noted that is an unprecedented attempt at outreach, at least during their public service tenures.

Although Gerrish said only 45 of the cards came back as undeliverable, Rose complained neither he nor many of his neighbors, nor a good number of others he polled, ever got the invite. Still, the mailing appeared to have some impact. The Nov. 15 planning board hearing had an audience of about 75 people.

Still, Rose was in favor of postponing discussion. For one thing, he said, better GIS mapping should be completed of exactly which properties in each neighborhood might be affected by smaller lot size rules for development with and without planning board review.

Councilor Brad Fox also favored a delay, given that Blake will be replaced by Henderson by the time a vote actually takes place.

“I believe this is a very important issue and she should have a right to participate. She needs to get fully up to speed on this issue,” he said.

“I find this a very scary issue as a new councilor coming on,” Henderson admitted, speaking from the podium.

Many on the council agreed the topic is as complex as any they’ve faced. Even Rose, who has proven himself time and again to be among the most careful readers on the council or ordinance language, declared himself to be “unqualified” to rule on this particular issue.

Even so, the balance of the council decided it was time to act.

“All we can do is give the best effort forward,” Blake said.

Referring to Rose’s critique of the mailing results, the mayor added, “There are some people who do not get their mail, do not care, or whatever, but we have to move on. I’m not sure what else we can do. At some point we have to make a decision and vote on this.”

“We cannot force people to come to the meetings,” said Councilor Claude Morgan. “If this does not look like a full room to you tonight, there may well be less people at our next meeting. So, I think it’s full speed ahead.”

At full speed, the council took a little more than two hours to wade though comment form those who did attend the session, and their own debate.

In the words of South Portland Planning Director Tex Haeuser, the issue comes down to this: “The main problem is that when suburban-style zoning was adopted by the city in the 1960s, with large minimum lot size requirements, it was imposed on the older neighborhoods as well as the undeveloped areas primarily found in the southern and western parts of the city,” he wrote in a memo to the council. “This instantly made a large number of lots in the established neighborhoods nonconforming with respect to lot size, as well, in many cases, with respect to various setbacks and other standards. As such, it put the city’s land use regulations at odds with the existing patterns and characters of many neighborhoods and created a variety of difficulties for property owners.”

Put another way by Councilor Linda Cohen: “I think the worse thing this city ever did was rezone back in the ’70s and raise the lot sizes for these areas, because now we are paying the price for it. We live in a city and in a city people are close.”

Cohen and Blake say they brought the question of how to deal with development on nonconforming lots to Haeuser and then-city manager Jim Gailey more than a year ago.

The issue apparently sat on the back burner. A court ruling brought it to wider attention.

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 2007, when the city adopted a process for allowing development on nonconforming lots, most of which which pre-date the creation of zoning rules, 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 got 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, as Morgan has said, 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 violate the maximum housing density rule. However, he has said 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.”

In his lawsuit, 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 nonconforming 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.

Earlier this month, the council had a consent agreement on a meeting agenda in hopes of reaching an accord with Deane, Zhang and Mo, the developer, and the court, but pulled it for further tweaking.

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.”

It also would establish a 35-foot requirement for street frontage, preventing the creation of so-called spaghetti strip lots, and establish the right of the planning board to consider abutting lots in the same ownership of any nonconforming lot applications, as well as prohibit the use of easements for parking on abutting lots as a way to skirt rules for building on nonconforming lots.

In addition, the new rules would mean all proposals to build homes on nonconforming lots would require a public hearing and review by the planning board, regardless of total lot size. However, allowable lot sizes would be adjusted citywide. The new minimums per neighborhood would be for: Willard, Pleasantdale and Meetinghouse Hill, 6,000 square feet; Ligonia, 6,500; Stanwood Park, Sunset Park and Thornton Heights, 7,000; Knightville, 7,500; Cash Corner and part of Ocean Street, 8,000; Loveitt’s Field and Meadowbrook, 8,500; Country Gardens and part of Highland Avenue, 12,500; part of Ocean Street, 13,500; part of Highland Avenue and Stanwood Park, 20,000.

Haeuser has said these smaller lot sizes would allow about 500 properties to be divided to create an additional house lot, where that had not been allowed before, a provision that Mussey Street resident Greg Lewis called akin to “hitting the lottery.”

Still, most councilors agreed that the goal is to allow more development to proceed without planning board review, while also allowing for more review of the smallest buildable lots.

To that end, it agreed to leave in place a proposed ban on basements on lots of record that remain nonconforming even with the smaller allowed lot sizes, even though a number of people in the audience voiced opposition to that idea.

Blake noted that South Portland has a high water table and five watersheds, along with numerous underground springs, and rising tides, in addition to the likelihood of rising sea levels. In the past, he said, he’s had residents show up at his door “in tears” because new development on a neighboring lot diverted water that flooded their own basements.

Still, the council did ask Haeuser to look as ways to reduce the cost of planning board review, which some in the audience complained can add anywhere from $3,000 to $10,000 to the cost of building a home in South Portland.

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