The Ordinance Committee’s Informational Public Forum on LD 2003 on February 9, 2023 drew a large crowd. Town Councilor Penny Jordan, Chair of the Ordinance Committee, welcomed the audience, “This Ordinance process is a responsibility that I take very seriously and I know that my teammates do as well.  As we work on this proposal, I constantly keep in mind the town that I grew up in, the town I have deep roots in, and the town that people want to come live in. As I look at each of the changes in this proposal [LD 2003 Zoning Ordinance Amendments] I think about what is it that Cape Elizabeth is today and what will the impact be to Cape Elizabeth tomorrow.  The changes we are proposing meet requirements, but don’t exceed the requirements of LD 2003.”  Working towards the state implementation deadline of July 1, 2023, Jordan said, “We may not meet that date now, but we feel it is more important for people to truly understand what we are doing and what we are proposing, than to hit a target date.  That is why we are here tonight.”  

Jordan explained that the committee has approached the proposal by considering if people are able to to age in place, leverage their property for income in order to stay in Cape Elizabeth, or create dwelling options for adult children.  In addition, “We look at definitions of ‘multifamily’ and what that means in all of the zones and what it means to our neighbors,” Jordan said.  Emphasizing the importance of the Housing Diversity Study Committee’s role in the process, Jordan added, “We often talk about economic diversity in Cape Elizabeth and the changes we have made move us a bit in that direction, but it is the Housing Diversity Study Committee that will engage the community to determine how much additional change happens.”

Jordan then turned to Town Planner Maureen O’Meara who provided a presentation of the proposed amendments. O’Meara explained that the intent of LD 2003 is to implement the recommendations of the Commission to, “Increase housing opportunities in Maine by studying zoning and land-use restrictions.”  As a result of this law, Cape Elizabeth and all other Maine municipalities are tasked with amending local ordinances to be in compliance with LD 2003.  The process for amending ordinances in Cape Elizabeth begins with the Town Council; the Town Council must vote to refer an ordinance to the Ordinance Committee.  When the Ordinance Committee completes the review process, their recommended amendments are sent to the Town Council.  O’Meara said, “Right now, we are between the Ordinance Committee and the Town Council.  The Ordinance Committee will continue to work on it until it is ready to send it to the council.”  Once the council receives recommendations from the Ordinance Committee, the council cannot adopt amendments relating to zoning or subdivision ordinances without giving the Planning Board an opportunity to provide advice.  The Planning Board cannot provide advice without first holding a public hearing.  Thereafter, the Planning Board will send their advice to the council.  The Town Council must then also hold a public hearing before considering any amendments.

O’Meara listed the highlights of LD 2003 starting with a “Fair Housing Requirement” which stipulates that towns cannot discriminate.  This became effective on July 1, 2022.  The remaining highlights of LD 2003, which become effective on July 1, 2023 are:   

• Accessory Dwelling Units (ADUs); Otherwise known as, ‘granny flats’ or in-law apartments.

LD 2003 allows for ADU to be added to any single-family home as long as long as the current setback and height requirements are met.  “Nothing in LD 2003 changes current height and setback requirements,” O’Meara stressed.  The law allows a single-family home to add an ADU by including it within the existing home; attaching it to the home; or as a detached unit from existing dwelling – as long as it meets setbacks.  Cape Elizabeth currently allows ADUs with different provisions, but not everyone can have one.

• Small Multifamily Buildings; Buildings which have up to 4 units maximum. 

LD 2003 allows owners of a single-family home to add up to 2 by either having 1 unit attached to the existing structure and 1 unit detached, or, by adding 1 unit within the existing structure and 1 unit detached.  In either situation current setbacks must be met and lots may not be divided. 

• Affordable Housing Density Bonus: “That bonus is only available in the growth areas of the town; those growth areas have already been identified by the Town Council in the Comprehensive Plan that was adopted in 2019.  The growth-area is 17% of the town,” O’Meara explained.  The zoning districts which are considered growth areas are: RC, RB, Town Center, and Business-A district.  

• The density bonus allows 2.5 times base density of that zoning district.  In order to receive the bonus density, a developer must guarantee that more than 50% of the development is offered as affordable for 30 years.  
• A developer of affordable-housing rental units must offer more than 50% of the units to people who make no more than 80% of the median income for 30 years.  
• A developer of affordable housing for ownership must offer more than 50% of the housing to people who make no more than !20% of the median income, for 30 years.

As for highlights included in Cape Elizabeth’s LD 2003 Draft Amendments, O’Meara first pointed to the Ordinance Committee’s attempt to clarify and update existing terms and definitions that are very similar and cause confusion. Currently, within the business districts, the term “multifamily” is used for a building containing 2 or more dwelling units (except ADUs), or a mixed-use building containing 1 or more dwellings.  [A “mixed-use building” means that the first floor of the building is non-residential and the floors above are residential.]  In the residential districts, the term “multiplex housing” is used for housing containing two (2) or more attached dwelling units.

The Ordinance Committee has proposed combining the definitions of multiplex and multifamily into one term – “multifamily development” – which would be applicable in both the residential and business districts.  A multifamily development is a building containing 2 or more dwelling units (excepting ADUs), or a mixed-use building containing 1 or more dwelling units.  A development that may be considered a multifamily development includes but is not limited to: duplexes, triplexes, quadraplexes, multiplexes, townhouses, mansion apartments, garden apartments, and other dwelling units that share a common wall floor or roof.  “Whether or not we change those terms, the state law requires that both multiplex and multifamily comply with LD 2003,” O’Meara said.  

The state requirements are distinctive between growth areas and non-growth areas.  In the non-growth area, RA district, 2 multifamily units could be added to a single-family home for a total of 3 units.  The RA district in Cape Elizabeth is 50% of the town.  In the RB, RC, BA and Town Center districts, 3 multifamily units could be added to a single-family home for a total of 4 units – either attached or detached.  This applies to 17% of the town.  Lots cannot be divided and the same single-family setbacks apply to all districts.  A new section has been written into the Zoning Ordinance, Section 19-7-17, which incapsulates both the multifamily amendments and the multiplex amendments in the same place.

O’Meara explained that another proposed amendment is based on the state allowing local ordinances, “To require a larger lot size as you add multifamily units.”  For example, “If you want to build a single-family home on a traditional lot in the RC district, you would need 20,000 square feet.”  Within the RA district, if a property owner wants to include the maximum number of units allowed within that zone, 4.9 acres of land are required.  Looking at current mapping, O’Meara estimated that there are approximately 35 vacant lots that are 4.9+ acres.  Within the RC district, a property owner who wants to include the maximum number of units, the lot size must be a minimum of 1.5 acres. O’Meara estimated that there are currently 7 vacant lots that meet could this minimum acreage.  In Town Center district, which requires 2.4 acres for maximum units, there are only two lots that are 2.4 acres; the school campus and the shopping center.  

The Ordinance Committee’s proposed amendments relating to LD 2003’s Affordable Housing Density Bonus requirements are included in the new section, 19-7-17 Growth Area Multifamily Development. This section lifts the requirements from the state law and applies it to the growth districts in Cape Elizabeth – which is 17% of the town.

• RB, RC, TC, BA Districts
• Density is 2.5 times base
• 30-year affordability
• 80% median income for rentals
• 120% median income for owners

The Ordinance Committee’s proposed ADU amendments replace current provisions with state requirements. Currently in Cape Elizabeth, a homeowner wanting to create an ADU must first go through the Board of Zoning Appeals to get a conditional-use permit, may only have an ADU that is attached to the principal building, and may not exceed 600 square feet in size.  Following LD 2003 state requirements, O’Meara said that the amendments express that, “You cannot require an ADU to go through more permitting than you would for a single-family home.”  A homeowner would no longer need a conditional-use permit and would be able to go directly to the Code Enforcement Officer for a building permit.  Per state law, residents in Cape Elizabeth could have an ADU that is attached or detached to the primary building, as long as it meets setbacks.  While LD 2003 has set the minimum size of 190 square feet for an ADU, it has given municipalities flexibility in establishing a maximum size.  Given feedback from the Code Enforcement Officer on the challenges of the current 600-square-feet maximum, O’Meara said that committee is considering a maximum of 1000 square feet as long as it meets setbacks.  Ordinance Committee member Gretchen Noonan said, “This is the only point in the amendments where we have chosen to exceed state requirements.”  Lastly, the draft amendments strengthen the language and prohibition of ADUs being not being used as a short-term rental.

The remainder of the forum was opened to questions from the attendees and lasted for two hours.  Some questions surrounded parking and the potential ramifications of adding ADUs or multifamily units given that state law does not allow requiring extra parking for ADUs.  O’Meara said that while there is little the town can enforce, “The current road ordinance sets minimum widths that have to be preserved for access of emergency vehicles.  These rules still apply.” 

One resident asked if an analysis had been done on how additional units could increase the tax base.  O’Meara said there had not, but in general, “Cluster developments and ADUs are being built in places where the town has already assumed all the costs of maintaining and all you are going to have is the added value of the home that can be added tax revenue 

Another resident requested that the town engage a private land-use consultant to provide a visual model of what additional units within the residential districts might look like. 

Some residents asked why the committee proposed switching to one term, “multifamily development,” when LD 2003 does not require a definition change.  O’Meara answered that using one term is intended to remove confusion, but maintains the set provisions for each district.

One resident asked when the Housing Diversity Study Committee would participate in the process.  Kevin Justh, who is the Chair of the Housing Diversity Study Committee, answered, “Everything that the committee is looking at, tackling, talking to the community about is elective; it’s what we envision taking forward; it’s looking at the Comprehensive Plan and making sure it works with our ordinances.  This [LD 2003] is not optional.”

Another resident pointed out that there are various entities challenging LD 2003 in an effort to amend the law and wondered how the town would respond if changes occur. Ordinance Committee member Caitlin Jordan answered, “The Ordinance Committee is working on this as if it is going into effect [on July 1, 2023] and based on our timeline, the Town Council is not going to vote this in, if we have to vote this in, until we have to vote this in.”  Should the state change the deadline or make changes to the law, Jordan said, “My vote would be to put a break on and reassess. Then maybe we want to put forward what we arrive at, but there would be no pressure.”  If changes are made, “We will adjust,” Jordan added.

Another question asked how the proposed amendments would impact a potential developer of a multifamily development, of the type that recently fell through at the Town Center.  O’Meara answered that within the law, “Dimensional requirements continue to apply,” and that the Affordable Housing Density Bonus would allow a builder to include more units, but staying within the current ordinance parameters for height, setbacks, etc.

To watch the entire Information Forum, including the presentation and all citizen questions, please CLICK HERE.

To follow progress on LD 2003 Amendments, please visit theTown's LD 2003 webpage.

To register for email updates on LD 2003 Amendments or the Housing Diversity Study Committee, Subscribe Here.