Planning Board Weighs In On Historic Properties, Moratoriums, And Draft Housing Amendment

TOWN COUNCIL HOUSING AND TOURISM WORKSHOP TONIGHT,

Oct 10, 2023

BAR HARBOR––The Bar Harbor Planning Board spent a lengthy meeting October 4, focusing on moratoriums on transient accommodations, how to adhere to new state housing laws, and whether or not all National Historic Register properties should be under the Design Review Board’s purview.

LD 2003 AND INCREASED HOUSING

According to Planning Director Michele Gagnon, the town’s proposed land use ordinance amendment to implement the state’s increased housing opportunities legislation, LD 2003, is still in a draft format but is moving right along.

There was a lot of talk regarding how many dwelling units that a property owner could put on a lot under the new guidelines. Maine statute Title 12, Chapter 423 A, Section 4807-A stipulates that the minimum lot size for a single family residential unit that utilizes a subsurface wastewater disposal system (septic system) must be a minimum of 20,000 square feet.

Within LD 2003, which is codified as Maine statute Title 30-A, Chapter 187, Sections 4364, 4364-A, and 4364-B, it says that people can have up to two dwelling units per lot if there are currently no dwelling units on the lot. In addition, property owners can have up to four dwelling units per lot if that lot is located in a designated growth area and has no dwelling units on it currently. If there is an existing dwelling unit on the lot, someone can build two new dwelling units for a total of three dwelling units.

However, the state, while preventing municipalities from being less permissive than the state mandates, does allow municipalities to be more permissive. For example, that statute says, “a municipality may allow more units than the number required to be allowed by this subsection.”

In the town’s proposed ordinance amendment, there are three different “Housing Opportunity Overlays.”

“The Housing Opportunity Multi-Family Dwelling Overlay — includes the growth areas, lots served by public water, and lots served by public sewer.
The Housing Opportunity Growth Areas Overlay — consists of the growth areas.
The Housing Opportunity Rural Area Overlay — consists of the rural areas (land not included in the Growth Areas), lots not served by public water, and lots not served by public sewer.”

None of the overlays were presented at the meeting with the Planning Board as they are “soon to come.”

The town’s proposed ordinance amendment states that someone can have up to four dwelling units per lot in the “Housing Opportunity Growth Areas Overlay.” In the “Housing Opportunity Rural Area Overlay” someone can have up to two dwelling units.

Planning Board Chair Millard Dority said that he had some questions about this and asked if anyone would mind if he drew diagrams on the chalkboard in council chambers to help explain his questions.

Dority went to the chalkboard and drew three squares. He then stated that if a property owner had an empty lot, then they could make four houses. He drew four Xs. Gagnon concurred.

Then after drawing one X in the second square, Dority said, that if the property owner had one existing dwelling unit, they could now build two additional dwelling units. What happens if they raze that existing house? Could they then build four new houses? Gagnon responded that this is an unanswered issue which the Planning Board and town can decide the answer to.

Dority then drew two Xs in the third square and said that now they could build nothing. But what if they tear down these two houses? Can they build four new houses? Once again, Gagnon responded that this is an unanswered issue which the Planning Board and town can decide the answer to.

After returning to his seat, Dority said, “The decision we make about whether a house exists or whether it doesn’t, seems to me to be a very big one.”

Gagnon then asked if the Planning Board would agree to not being more permissive at this time to items 3a, b, and c, (“Dwelling unit allowance based on the location of the lot” in the proposed ordinance amendment) notwithstanding the as of yet undecided tear down question.

In response to this, Planning Board member Joe Cough said, “I tend to hope that being more permissive would lead to more, but the cost of building four houses (is) not just allowing people to build their own houses.”

Planning Board Vice Chair Ruth Eveland said, “I would like to go more permissive” so that anyone who may have the resources to build the houses has the opportunity to do so.

Planning Board Secretary Elissa Chesler asked about the definition of affordability in the proposed ordinance amendment because the state’s definition of affordability does not match what is currently in the town’s Land Use Ordinance (LUO). Gagnon answered that the state’s definition of affordability in any of the overlay areas will supersede what is in the LUO unless what is in the LUO is already more relaxed.

The subject of required parking spaces also came up. Gagnon recommended that if the parking space calculation comes out to an uneven number, then they round up, but that would be the Planning Board’s decision ultimately.

SHORT TERM RENTALS AND LD2003 AND THE DEFINITION OF RESIDENTIAL

Gagnon then asked, “Do you guys want any of those increased housing opportunities to be allowed for short term rentals or not?”

Chesler, who was attending via Zoom, said that nobody would expect the following words to come out of her mouth, but there are very few ways to capitalize housing construction and if one of the units was allowed to be used as a VR1 (owner-occupied short-term rental) it may help incentivize people to actually build these additional houses. Chesler then added that the board had to be creative here, with this current environment that makes construction so challenging.

Gagnon said that the town’s current bonus dwelling unit (BDU) ordinance does not allow BDUs to be short-term rentals. BDUs have different rules and allowances than regular dwelling units under the new legislation.

Any short-term rental allowance should be used as a way to help achieve the overall housing goals and not as a way to promote the proliferation of short-term rentals, Chesler added.

Dority then pointed out that anyone can already build two houses on an acceptable lot and use them as VR1s if they claim one as their primary residence.

Gagnon said that the state did not preempt the town’s ability to decide if any houses built under LD 2003 could be short term rentals, but she would like to see that use restricted to start with.

It will be hard to change the ordinance to make it more permissible after it passes, if it does, said Cough.

Chesler added that the board should get some feedback on this issue.

Chesler then asked if the definition of residential housing clarifies that it has to be year-round housing rather than something like seasonal employee housing.

This is the current definition of residential housing in the proposed ordinance amendment.

“RESIDENTIAL USE — A use permitted to be used for human habitation. Residential uses may include single-family, duplex, triplex, quadplex, and other multifamily housing; condominiums; time-share units; and apartments. The following uses are not included under this definition: (1) Dormitories, Shared-Accommodations 1, 2, and 3, and Employee Living Quarters; (2) Congregate Housing; (3) Campgrounds, campsites, hotels, motels, all beds and breakfast, all transient accommodations, or other types of lodging accommodations; and dwelling units used as short-term rentals.”

In response, Gagnon said that it would be possible to build four residences for employee housing because the definition of residential use does not specify year-round housing.

The Planning Board did not make any motions or vote on any of these issues at this time but did say that they wanted time-share units taken out as an acceptable use under the residential use definition.

WORKFORCE HOUSING SURVEY

Staff Planner Cali Martinez gave an update on the workforce housing survey for rural employers that she had conducted in regard to a possible land use ordinance change to allow employ living quarters and/or shared accommodations for rural employers.

There were 30 rural businesses solicited for the survey via multiple routes, email, media stories, Chamber of Commerce notifications, the town’s website, and Facebook. Additionally, multiple reminders of the survey were sent out via various routes.

There were 13 survey responses in total. The results of that Polco survey are here.

POTENTIAL LAND USE CHANGES ABOUT HISTORIC PROPERTIES

Martinez said that she will have the draft language for the amendment ready for Planning Board review in November.

Next Martinez spoke about potential amendments to the Design Review Board’s purview. These changes would:

“Add some properties listed on the National Register of Historic Places to the purview of the Design Review Board by adding them to Appendix A;
Add and amend definitions related to design review and signage review;
Simplify the review process for signs;
Adjust the Design Review Overlay district boundaries;
Minimize redundancy by removing Appendix B – Locally Significant Properties in Design Review Overlay District and all reference to it.”

One change would transfer all signage review from the Design Review Board to the code enforcement office with the exception of internally illuminated signage. Another change adjusts the Design Review Board’s overlay district boundaries and renames some areas.

The potential change which brought about the most discussion amongst the Planning Board and the public in attendance was the addition of some properties listed on the National Register of Historic Places to the Design Review Board’s purview by adding them to Appendix A. To prevent redundancy between Appendix B, which is the locally significant properties list, and Appendix A, Appendix B, and all references to it would be removed from the Design Review Board ordinance.

There would be 37 buildings and one structure added to Appendix A and five definitions related to Appendix A would be added.

Dority asked “what is the advantage” to these potential changes, saying they are working so much on the housing crisis but now the Planning Board members are spending time on the Design Review Board ordinance. What is the benefit to the property owner, he wondered.

In response, Cough said that being in a historic district can add value to the home and the current owner can limit future changes to some aspects of the building by being on a historic buildings list.

Member Cosmos Nims said that he recently read that the Brookings Institute estimates a 5-10% property value increase over a decade by being a historic property.

Gagnon said that property owners can request to be added to the list or taken off of the list, but ultimately it is the Design Review Board’s decision to allow placement on the list or removal from it.

Audience member Corey Papadopoli, an architect, wanted to make some comments and Dority allowed him to do so. Papadopoli said that he was not an expert in renovation but had plenty of experience working with historic properties.

Papadopoli held up a large packet of papers and said that the Secretary of Interior’s Standards for the Treatment of Historic Properties is the document used for properties that are on the National Register of Historic Places. Papadopoli said this is a vast document that is very nuanced and it recognizes that there is no single solution for all renovation and restoration projects.

“I have read the changes to the ordinance and I was in on the listening session,” Papadopoli said. “The reason I am here is because I am concerned a little bit about the processes that have gone on in terms of this ordinance.” He believes that this process has been rushed and flawed and he is concerned that the Design Review Board is not necessarily the right body to review this.

“I am not entirely convinced that whoever wrote this (the town’s proposed Design Review Board ordinance changes) has read this (the Secretary of Interior’s ‘Standards for the Treatment of Historic Properties’),” Papadopoli said.

Papadopoli went on to say that the changes to the town’s ordinance directly contradicts the Secretary of Interior’s “Standards for the Treatment of Historic Properties” in a lot of places.

Maine has a state historic commission which will help towns write preservation ordinances “why they were not contacted or why no preservationist was not involved in this is unclear to me,” Papadopoli said.

Finishing up, Papadopoli said that every city or town in Maine that has a historic property ordinance has a historic preservation commission that reviews the acceptability of any work done in those districts. The Design Review Board currently has 13 pages of historic property ordinance and adding 241 pages more without training seems like it is not the right process.

Cough then said that he would disagree with Papadopoli’s assessment of the make-up of the Design Review Board. Some members do have experience with the Secretary of Interior’s S”tandards for the Treatment of Historic Properties,” he said.

Martinez said that she would be reporting to the Design Review Board next Thursday.

Gagnon said that she thought it would be prudent, based on public comments, to pull Appendix A and the historic properties portion of the ordinance changes out and keep the rest moving forward.

Dority said that he did not understand the rush, and Martinez replied that she is working at the behest of the Design Review Board which is the body wanting these changes.

The draft proposed amendment is at the end of the article.

PLANNING BOARD INPUT ON POTENTIAL MORATORIUM ON TRANSIENT ACCOMMODATIONS

The last item of discussion before the Planning Board ended its regular meeting was members’ input on the Town Council’s potential moratorium on transient accommodations.

Eveland said that the data presented at a recent Town Council meeting was fairly useful for understanding that transient accommodations (TAs) are not the core issue before them right now. She said, “This is not a high priority for me at this time.”

“In terms of priority for me, I don’t think that going into November, if you’re trying to staunch the bleeding of losing houses to short-term rentals it might be a moratorium that, especially since it has a finite timeline, more better put into effect in perhaps April or May,” Nims said, “if that was the intention.”

Chesler said that housing is an acute problem that hasn’t changed for a while. She wouldn’t want to see a lot of approvals of lodging on outlying areas that could be defined as growth areas in the comprehensive plan, but she doesn’t think that LUO changes can happen fast enough to have an impact that would merit a moratorium.

Dority commented that a moratorium is good at the right time and they may want to save it until it can be played at the most useful time.

Cough said that the burden does not have to fall on the Planning Board. The council can make ordinance changes on its own and can certainly do that in rapid fire. “I think overall, it’s terribly overbroad in its scope.”