ROCKPORT — Rockport town manager Jon Duke says a new state zoning law designed to create more housing will deliver a crippling blow to local decision making.

Jon Duke

“The problem is that, in many cases, it takes home rule and ignores it fully,” Duke told the Select Board Oct. 10. “It is a very top-down approach to zoning, not usually what we do in Maine; this turns that on its ear.”

He was referring to LD 2003, passed by the Maine House of Representatives on April 14 and by the State Senate April 25. Gov. Janet Mills signed it on April 27. It became law in August but takes effect July 1, 2023. Titled, “An Act to Implement the Recommendations of the Commission to Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions,” it is commonly referred to as LD 2003.

According to guidance information just published by the Maine Department of Economic and Community Development, the law “is designed to remove unnecessary regulatory barriers to housing production in Maine while preserving local ability to create land use plans and protect sensitive environmental resources.”

Duke conceded LD 2003 “probably has some good intentions to try to deal with the housing shortage we have in Maine and try to find some answers to that.” But he was emphatic on his view of what it does to the state’s history of honoring independent home rule for municipalities. “It tramples on home rule,” he told the Select Board. “It tramples on something we have held firm to for 200-plus years.” He then raised the possibility that towns will fight back to prevent the law from going into effect as passed. “I suspect a number of municipalities will fight this legally,” he said. He advised that Rockport needs to “take some steps as a community” to prepare for what is to come.

The Maine Municipal Association, which represents the state’s towns and cities, opposed passage of the new law, based for the most part on its eroding effect on local control, according to Director of Advocacy and Communications, Kate Dufour, but also because it takes a sort of “one size fits all” approach to the housing issue, she said, when in fact every municipality is different and should be allowed to work on its own solutions with state help and some form of flexible state rubric.

She had not heard talk such as that of Rockport’s Jon Duke, she said — the observation that LD 2003 might result in a court battle pitting municipalities against the state. “I really have not heard that before; the first time I heard that is from you,” she told The Camden Herald. And MMA, she added, is “not exploring that as an option.”

Lorie Costigan

The Appleton Select Board meeting on Oct. 4 heard a somewhat muted version of Duke’s concern from Chair Lorie Costigan. “It’s a little bit of a game changer,” Costigan told colleagues after distributing to each the state DECD’s 20-page “LD 2003 Guidance” document, designed to give towns the new list of do’s and don’ts mandated by the state. She also distributed a communication received by Appleton from the “municipal team” at the Drummond Woodsum law firm. It calls the new law “complex,” says it will be “different for each community,” and, in general, “will preempt municipalities from using their home rule authority to adopt ordinances inconsistent with the law or enforce many of their existing zoning and land use ordinances that restrict housing density.” It goes on to say the law also “clearly mandates” towns update their ordinances before the law goes into effect next July.

Legal requirements for municipalities

The legal firm informed Appleton that the law requires municipalities to apply new density and other requirements for affordable housing development; allow up to four additional dwelling units per lot where residential housing is permitted — depending on whether the lot is vacant, located in a designated growth area or served by public or centrally managed sewer and water systems, and allow up to two additional accessory dwelling units on any lot where single-family dwellings are permitted.

Costigan wrote in an email to her colleagues, also distributed at the meeting, “My initial read is (LD 2003) will increase housing density on existing residential lots and home rule authority can’t be used to create workarounds. The work ahead is ensuring compliance.” She said, “The advice from the Town’s legal counsel calls for creating a team of the Planning Board, or an advisory committee, to begin to address the law and create a work plan for any proposed ordinance amendments in advance of town meeting 2023. In other words, another busy year for the town and its elected officials and volunteers.”

The DECD guidance document gets into more detail than the legal summary provided to Appleton. Among its highlights, it lists on page 4, actions local government are now prohibited from taking under the new law. They “may not” enact local ordinances that allow housing but limit it to one unit per lot; may not prohibit one accessory dwelling unit per lot or count those units towards a rate of growth ordinance; and may not limit the affordable housing density bonuses allowed in LD 2003 in growth areas as defined in state law.

Permissible actions by towns and cities

The document also lists nine actions towns and cities may take under the new law.

Continue to develop Growth Management programs, including comprehensive plans and zoning consistent with those plans

Enforce local shoreline zoning ordinances consistent with state shoreline zoning law

Regulate how many square feet of land are needed for each dwelling unit (other than accessory dwelling units)

Conduct a site plan review, if authorized by local ordinances, of any residential development

Regulate the maximum size of accessory dwelling units

Regulate short-term rentals in their community

Create rate of growth ordinances, so long as they do not limit the number of accessory dwelling units outlined in Section 6

Create local ordinances that are more permissive for residential housing development than the requirements of LD 2003

Regulate housing development based on documented water and wastewater capacity constraints.

Costigan observed that LD 2003 “will impact all municipalities” and said Appleton’s own Planning Board will now have to review all of the town’s building ordinances for compliance with the new state mandates. She made no comment on what is to happen if the town laws do not comply with state law. “We want to get this into the hands of the Planning Board,” she said. She also noted that the new law, “goes to show the trend (to higher densities) is going to continue.”

Neither the Appleton nor Rockport Select Boards took action on what in effect were informational items, and there was little discussion on the matter.

In both cases, however, the matter apparently will be referred to the respective Planning Boards for more study and action.