2017-02-17 / Front Page

City enacts big change for lots

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — The yearlong process of updating South Portland’s minimum lot size requirements for development has finally ended with passage Feb. 6 by a 6-1 vote of a 13-page zoning update package.

However, recognizing debate and confusion that has raged during the past year, the council also adopted an order compelling it to review the new rules in two years. It also will require quarterly reports from Planning Director Tex Haeuser with data on any new residential building permits issued for non-conforming lots.

Calling it a “conciliation” measure made to break a impasse on the new rules, Councilor Claude Morgan called the bi-annual review “the straw that holds this (ordinance) together.”

“I did not get everything I wanted, but this is good legislation,” he said. “The alternative is to go back to language that did not work.”

“Passage of this rights a wrong that was done many, many years ago,” Councilor Linda Cohen said. “Now we are going back and making these neighborhoods look like what they already do look like. Why would we want to continue to add to the sprawl of our neighborhood when we can in-fill existing lots?”

Only Councilor Eben Rose voted against the new zoning package.

“My reason is the same that it has been for the entire year – this requires an amendment of the comprehensive planning process,” he said. “It is not up to any of us on the council to decide on this matter. It is up to the neighborhoods affected. That is what the comprehensive planning process is all about.”

Meanwhile, planning board Chairman William Laidley cautioned that encouraging construction on small lots split off from other lots would put a strain on infrastructure, as well as fire and police services, and schools, not to mention the increased workload that may fall on the planning board.

“You are going to have to give your planning department more money,” he said.

Only a few residents spoke to the issue at the final vote, most of whom the council has heard from before.

“I don’t think this ordinance is the best, but if you are going to pass it, I think you need to keep close track of what’s going on with it,” said Mussey Street resident Greg Lewis, giving his nod to the two-year review. “Then, if the plan is not working as it should, changes need to be made as quickly as possible.”

Lewis also said he feared the new rules will “allow for speculation,” further reducing the stock of affordable housing in South Portland.

“I know a lot of developers who are happy to see this pass,” he said.

But Will Cabana – who, along with his wife, has been in limbo for a year, unable to build on a subdivided lot gifted to them by his parents, thanks to a freeze on building permits enacted by the council at the start of the process last year — said the council should expect a flood of new projects.

“There’s going to be an uptick in development on small non-conforming lots, because none of it has happened for a year,” he said.

Cohen has said she and former city councilor Tom Blake brought the question of how to deal with development on small lots to Haeuser and then-city manager Jim Gailey in fall 2015. The issue sat on the back burner until a court ruling brought it to wider attention.

In February 2016, 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 predate 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 and Rose has repeatedly asked to no avail for a comprehensive list of which lots would be impacted by the new rules. However, Haeuser 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, 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. Devin 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.

Earlier this year, the council signed a consent agreement, reaching an accord with Deane, Zhang and Mo, the developer, and the court, to resolve those issues.

The new 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 is now made explicit that maximum net residential density in the Residential A and AA zones only applies to cluster developments and subdivisions.

It also requires all nonconforming lot applications to obtain planning board approval, and prohibits basements for nonconforming lots in certain sewer district areas. However, a late change does provide a mechanism for applicants to be allowed to have basements in combined sewer areas if soils analysis determines a basement slab would be a foot above seasonal high groundwater – or if the applicant has rights to send groundwater onto downhill properties.

New rules also 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 reduces the minimum street frontage requirement in the A zone to 50 feet, and to 75 feet in the AA zone, with a provision that these distances revert to the current 75 feet and 100 feet frontage requirements, respectively, unless the council acts by March 1, 2020 to maintain the shorter distances.

In addition, 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 Lewis has 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.

The council has asked 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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