An Update on the Pending Affordable Housing Legislation (LD 2003)

On March 16, after a marathon eight-hour work session, the Committee on Labor and Housing issued a divided report on LD 2003, Speaker Fecteau’s emergency affordable housing bill. The bill did many things in an effort to address Maine’s continued housing crisis; some good and some bad. On April 7, in response to extensive public comments, Speaker Fecteau introduced a significant amendment to LD 2003. The amendment removes many problematic provisions within LD 2003 and limits changes to residential zoning density requirements but also removes much of the financial and technical assistance offered to municipalities. Brief discussions of the key changes are below.

No More Human Rights Act Provisions

Speaker Fecteau’s amendment entirely removes LD 2003’s earlier provisions that prohibited municipalities from restricting local housing development based on the character of a location, overcrowding, or density. Several commenters had raised issue with those restrictions as they appeared to conflict with established law governing shoreland zoning, comprehensive planning, subdivision review, and zoning variances. Their removal from LD 2003 removes a significant cloud over the impact LD 2003 would have on existing zoning laws and review processes and should come as a relief for most municipalities. The amendment does require municipalities to ensure that zoning ordinances affirmatively further the purposes of the Federal Fair Housing Act and Maine Human Rights Act; however, this more nebulous requirement provides additional leeway for implementation and interpretation of municipal ordinances and regulations.

No More State Review of Local Decisions

Also removed from LD 2003 is the controversial Municipal Housing Development Review Board, which would have had the authority to review municipal decisions on housing development permit applications. It had been unclear how the Review Board would affect existing appeal processes and many commenters had expressed concern that State review of municipal decisions represented a loss of local control over distinctly local matters.

Modification of Local Assistance

Speaker Fecteau’s amendment further modifies the technical and financial assistance offered to municipalities to adopt and implement ordinances promoting housing development. Many municipalities lack the capacity and funding to draft, adopt, and properly administer comprehensive zoning and land use ordinances. State support for these activities has been lacking since the closure of the State’s Planning Office in 2012. As originally drafted, LD 2003 committed over $4,000,000 for the Department of Economic and Community Development to provide municipalities with technical assistance and grants for the development and implementation of zoning and land use ordinances.

The amendment creates the Housing Opportunity Program, administered by DECD, to provide grants to “experienced service providers” providing a range of services to municipalities related to promoting affordable housing development. The amendment commits $3,000,000 to the Housing Opportunity Program. The amendment removes funding originally committed to DECD to provide municipalities with technical assistance and instead authorizes DECD to provide such assistance to the extent possible “with available resources.” Additionally, the amendment removes the incentive funding available to municipalities working to adopt ordinances promoting affordable housing development. Together, these changes will reduce the much-needed technical assistance and funding available to municipalities but will generally expand DECD’s ability to assist municipalities.

While the reduction in available assistance is an unfortunate development, it is offset by the removal from LD 2003 of the requirement that all municipalities adopt zoning ordinances that prioritize areas for housing development. This requirement would have placed a significant burden on many smaller municipalities without comprehensive zoning that would not have been able to comply without technical and financial support from DECD.

Modified Density Requirements

Much of the controversy around the original LD 2003 involved its changes to municipal density restrictions. As drafted, LD 2003 required municipalities to permit affordable housing developments with dwelling unity densities at least 2.5 times greater than what was otherwise allowed in the underlying zone and allowed structures within residential zones to have up to four dwelling units, subject to some limitations. The amendment substantially narrows the density requirements of LD 2003 by only applying the 2.5 density multiplier for affordable housing developments in zones that permit multi-family dwelling units, and which are either within a designated growth area or served by public water and sewer systems. Additionally, the density requirement for residential zones has been reduced to two dwelling units for lots without an existing dwelling unit and four dwelling units for lots without an existing dwelling unit that are also within a designated growth area or served by public water and sewer systems. Municipalities are also required to permit lots with an existing dwelling unit to add up to two additional dwelling units, subject to certain restrictions.

Delayed Implementation

Maine’s long-standing shortage of readily available, affordable housing became a full-blown crisis over the past three years, as the COVID-19 pandemic greatly increased demand and housing costs throughout the State for both home ownership and rentals. Nevertheless, bowing to concerns regarding the timeline for implementation of the changes in LD 2003, Speaker Fecteau’s recent amendment removes the emergency preamble from the bill and delays implementation of many requirements related to affordable housing and residential zone density requirements to July 2023. The delayed implementation should come as welcome news for many municipalities, which would have had very limited time to amend local ordinances and policies and would have had to call special town meetings to adopt them within that timeframe.

Speaker Fecteau’s amendments address many of the concerns raised about LD 2003 and should largely come as welcome news to Maine municipalities. However, the bill will still need to proceed through the House and Senate, where it is likely to undergo additional changes.

State Ceases Enforcement of Marijuana Business Residency Requirement

The Office of Marijuana Policy issued a letter on May 11, stating that, “Following the advice of the Office of the Attorney General, DAFS and OMP will cease enforcement of the residency requirement included in the Marijuana Legalization Act and the Adult Use Program Rule.” This decision is issued in response to a lawsuit filed against DAFS, which challenged the constitutionality of the requirement under the “dormant Commerce Clause” of the U.S. Constitution.

Many Maine municipalities have adopted marijuana licensing and zoning ordinances which require business owners or applicants to be Maine residents. These were largely considered to be supportive of the existing residency requirements under state law. With OMP and DAFS having concluded that their requirements are void, similar ordinance provisions would also likely be considered unenforceable. Municipalities should work with legal counsel and consider repealing those portions of their marijuana ordinances that require residency. Such requirements will clearly be subject to challenge as local businesses learn of the state’s decision.

NH Supreme Court Weighs in on Short-Term Rentals

In an opinion issued on September 27, 2019, the New Hampshire Supreme Court addressed the regulation of short-term residential rentals. The Court’s decision provides guidance for municipalities in regard to the allowance of short-term residential rentals, such as through websites like Airbnb, Home Away, and VRBO. 

In Working Stiff Partners, LLC v. City of Portsmouth, single-family, two-family, and multi-family dwellings were allowed in the applicable zoning district. The Portsmouth Zoning Ordinance (PZO) defined a “dwelling unit” as follows: 

… A building or portion thereof providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation. This use shall not be deemed to include such transient occupancies as hotels, motels, rooming, or boarding houses. (Emphasis added.) 

The Court found that short-term rentals of as little as one day at a time constituted “transient” occupancy and were thus explicitly excluded by the PZO definition from being a “dwelling unit.”

However, many zoning ordinances in New Hampshire have a definition of “dwelling unit” similar to Portsmouth’s definition except that they do not expressly exclude transient occupancy. The Court’s decision thus leaves open the question of whether short-term rentals may be prohibited where the local ordinance definition does not expressly exclude transient occupancies. 

There were other facts in the Portsmouth situation which may have influenced the Court’s decision. The property in question was advertised on Airbnb as allowing occupancies of as little as one day; and was also advertised as being suitable for “family parties, wedding parties, and corporate stays.” The Court may have reached a different result if the property in question could only be rented for longer periods of time (e.g., a minimum of one week), or if the property’s use did not include wedding parties, corporate stays, and other events, but was limited to single-family residential usage.

Thus, while the Court’s decision appears to allow municipalities to regulate short-term residential rentals, municipalities may not want to prohibit them, or may only want to prohibit them in specific zoning districts, or may only want to regulate them, for example: 

• By allowing short-term residential rentals but prohibiting wedding parties, corporate stays, or other commercial uses; or 
• By requiring residential rentals to be a minimum duration (say, one week); or 
• By requiring short-term rental owners to register as such and be subject to inspections for health and safety purposes. 

Whatever municipalities decide, they should consult counsel to make sure that their zoning definitions and provisions accomplish the result they want to achieve.

To What Extent Does a Zoning Board of Adjustment or Planning Board Have to Make Specific Findings of Fact to Support Its Decision?

In a recent case, Dietz et al. v. Town of Tuftonboro (decided January 28, 2019), the New Hampshire Supreme Court held that a Zoning Board of Adjustment (ZBA) did not have to make written findings to support the granting of an equitable waiver pursuant to RSA 674:33-a. In that case, the owner of a house on Lake Winnipesaukee sought an equitable waiver because two additions that it had built (and which had been allowed by the Town of Tuftonboro building inspector) violated the 50-foot Lake setback requirement of the Town’s Zoning Ordinance. (The Supreme Court’s decision addressed other issues of law, but this blog will focus on the question of whether a ZBA needs to make written findings of fact supporting its decisions.) 

RSA 674:33-a, I, provides that: “The [ZBA] shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver from the [zoning ordinance] requirement, if and only if the board makes all of the following findings.” The statute then lists four findings that the ZBA must make in order to grant the equitable waiver. Reasoning that the statute did not explicitly state that written findings were required, and that if the Legislature intended to require written findings, it could have done so, the Court held that the ZBA had not erred by failing to make specific written findings on the statutory criteria. 

The Court’s decision with respect to equitable waivers is consistent with its decisions in regard to written factual findings to support the granting of a variance. Presumably, although this author is not aware of any cases so holding, a ZBA also does not need to make specific findings when granting a special exception. 

However, these general principles should not lull ZBA members into thinking that they need only make broad conclusory findings with respect to the variance, special exception, or equitable waiver criteria. Though a ZBA may not generally be required to make specific written findings, ZBA members should keep in mind the following:

1. The Court in Dietz et al v. Town of Tuftonboro stated that “although disclosure of specific findings of fact by a board of adjustment may often facilitate judicial review, the absence of findings, at least where there is no request therefor, is not in and of itself error” (emphasis added). Thus, the Court has suggested that a ZBA should make specific findings of fact if requested to do so by the applicant or another interested party. If such request is made, the ZBA should make the specific findings that are requested, as long as they reasonably relate to the variance, special exception, or equitable waiver criteria that are at issue.
2. Even when the ZBA does not make specific findings of fact with respect to the variance, special exception, or equitable waiver criteria, ZBA members should at least discuss those criteria and give them due consideration.
3. ZBA members should be aware of whether the ZBA’s own Rules of Procedure require specific findings to be made. Although the Supreme Court has held that the applicable statutes do not require specific findings to be made, a particular municipality’s Rules of Procedure could require them. If so, the Rules would govern and specific findings should be made.

Animal-Related Ordinances – Out of Sight and Out of Mind?

When was the last time you checked your animal-related ordinances to confirm that they were keeping up with, and meeting the needs of, your ever-changing community? These ordinances are easy to overlook until you need them and then, unfortunately, the tools you need may not be there. Maine law provides broad authority to enact and enforce animal-related ordinances. 

We see in our state, municipalities that include within their borders urban, residential, industrial, rural, and agricultural areas. We also see municipalities entering into contract zones or approving conditional zoning ordinances as appropriate when faced with development projects. Our rapidly changing communities need animal-related ordinances that will keep up with the new realities. For example, the person who has for many years kept horses on his or her property that may have escaped from their fenced in area from time to time, finds that his or her property is now near a road with increased traffic—an escaped horse puts both the drivers of automobiles and the horses at risk. Or, how about the person that keeps their dogs tied outside all the time. While every municipality should consider having an ordinance that puts some parameters around this, especially in the heat of the summer and the frigid winters, what do you do about the barking? Maybe you rely on your noise ordinance, but will it be enough? 

New realities include how animals are viewed, especially pets. The pet business is growing and raking in billions of dollars, which evidences the evolving view of animals kept in the household. You may recall the outrage generated when the Town of Scarborough was discussing enacting ordinances that would ban dogs from certain of its beaches during certain times. Even though this was in response to an incident related to a bird and the IF&W threatened to fine the Town, members of the community demanded that the Town act proportionately. The Town created an Animal Control Advisory Committee who generated a report attempting to balance the environmental issues with the rights and needs of dog owners. 

Also for consideration: Do you allow residents to keep a small number of chickens, even in urban areas, to provide eggs to the family? Does your ordinance contain reasonable requirements for dog day care and boarding facilities, a service used by so many people? 

Finally and importantly, are your animal-related ordinances humane and actually help you get the results you wish to achieve? Do they impose the punishment on the right party—the person violating the ordinance as opposed to the animals he or she is supposed to care for? Do you have the tools you need?

Recent New Hampshire Supreme Court Case Places Limits on Planning Boards’ Site Review Authority

In Trustees of Dartmouth College v. Town of Hanover, _____ N.H. _____ (2018), decided November 6, 2018, the New Hampshire Supreme Court reversed the decision of the trial court, which had upheld the Hanover Planning Board’s decision denying Dartmouth College’s proposed construction of a new Indoor Practice Facility (“IPF”). Dartmouth sought approval for a 69,860 square foot IPF within the College’s existing athletic complex located in Hanover’s Institutional Zoning District (in which athletic facilities were an allowed use). The Planning Board, in a 4-1 decision, denied the site plan application on the grounds that it: (1) did not conform with the Hanover Master Plan; (2) negatively impacted abutters, the neighborhood, and others; and (3) did not promote the harmonious and aesthetically pleasing development of the town. The trial court upheld the Planning Board’s decision, finding that it was not unreasonable or unlawful.

The Supreme Court, however, overturned the Superior Court’s decision, finding that a reasonable person could not have reached the same decision based on the evidence before the Planning Board. The Supreme Court held that the Planning Board members had improperly denied the College’s site plan application based upon ad hoc reasoning characterized by conclusory statements and personal feelings unsupported by the evidence.

The case provides a number of issues for planning board members to consider when they are reviewing a site plan application, including the following:

1. Though a planning board is entitled to rely in part on its members’ own judgment and experience when acting upon a site plan application, the decision cannot be based solely upon personal opinions or “vague concerns” of its members.
2. Although on appeal a planning board’s factual findings are considered prima facie lawful and unreasonable, personal opinions and vague concerns are not factfinding entitled to deference.
3. A planning board cannot deny a proposed use simply because its members do not feel that the use is appropriate, where the use is allowed in the applicable zoning district.
4. A planning board cannot deny an application based upon general concerns if specific standards in the zoning ordinance addressing those concerns have been met. (For example, the Hanover Planning Board had denied the proposed IPF on the ground that it was too large and imposing, despite the building’s compliance with the zoning ordinance’s specific provisions relating to a structure’s height and size.)
5. If a use is permitted by the zoning ordinance, it cannot be barred by the site review process unless the use would create unusual public health, safety, or welfare concerns.

The case signals a subtle shift in the New Hampshire Supreme Court in favor of individual property rights (versus a planning board’s regulatory authority). This does not mean that a planning board cannot impose conditions that are reasonably designed to promote the public health, safety, or welfare. But where a proposed project meets the objective requirements of the zoning ordinance, a planning board must base a denial of that project upon specific facts showing a substantial risk of harm to the public health, safety, or welfare.