New Affordable Housing Bill Is a Step in Right Direction, But Carries Implications for Certain Conserved Properties

In its recent session, the Maine Legislature enacted and Governor Mills signed an affordable housing bill, L.D. 2003, that establishes new statewide minimum zoning densities. On the whole, I think the bill is to be celebrated as a much-needed step towards easing the housing crisis, disincentivizing sprawl, and lowering carbon emissions. The Natural Resources Council of Maine supported the bill for these very reasons.

In a nutshell, § 4364-A of the bill requires municipalities to allow two dwelling units in all single-family zones on every lot where no dwelling unit already exists. The two dwelling units could be in the form of two separate homes, a duplex, or a main home with an accessory dwelling unit. For lots in single-family zones where one dwelling unit already exists, a landowner may establish up to two additional dwelling units: one additional dwelling unit within or attached to an existing structure or one additional detached dwelling unit, or one of each. Meanwhile, if the lot is in a designated growth area, or is served by public water and sewer systems in a municipality without a comprehensive plan, then up to four dwelling units must be allowed. Any lot will still need to meet the minimum lots size requirements of 12M.R.S. Chapter 423-A, which generally requires at least 20,000 square feet for a buildable lot with a subsurface septic tank.

Meanwhile, § 4364 of the law will allow for more density for deed-restricted affordable housing developments in multifamily-zoned areas. So long as the units are for rent or sale at certain below-market rates, such developments may be built at 2.5 times the density of whatever the multifamily zone already allows.

To be absolutely clear, there’s a provision of the law expressly stating that the changes in zoning do not trump the restrictions of any private agreement such as a conservation easement. That said, land trusts and landowners should recognize that the new law will allow more dwelling units on some residential properties that are protected by conservation easements, as well as residential properties abutting land-trust-owned preserves or conservation easements. Most conservation easements protect land in single-family residential zones that are not designated growth areas.

Let’s look at how these new building rights may play out in the conservation easement context. First, suppose a conservation easement in a single-family residential zone that includes a building area within its protected property, and that the building area is limited by the easement to a single dwelling unit. Up to now, there was no tension between the number of dwelling units allowed by the easement and the number allowed under local zoning. But once the new law takes effect, the easement will continue to limit the landowner to the single existing dwelling unit, even though the law would otherwise allow up to three units on this parcel. This may create some tension as landowners start to ask why they can’t add that second or third dwelling unit to the building area. In contrast, if the building area doesn’t include restrictions on the number of dwelling units, then the landowner may be able to build one or two additional units within that building area (within the confines of any applicable square footage or height limits).

Meanwhile, suppose you have the same scenario as above, except the building area is completely excluded from the conservation easement. In this case, the landowner will be able to take advantage of the expanded density rights, and whatever she chooses to do is not the land trust’s concern. The same is true for properties that abut preserves, where expanded building rights may exist. The greater density rights may cause some spillover effects on conserved lands in the form of altered views or runoff, but those spillover effects are always a lurking threat in any context. At the same time, if successful the new law will ease regional pressure on new development and thereby result in less sprawl and more conserved land.

The passage of L.D. 2003 is a perfect example of why I generally don’t recommend that conservation easements place limits on the number of dwellings on a protected property, whether in or outside of a building area, as it can lead to all sorts of unintended consequences. It’s far clearer to establish aggregate square footage and height limits, and leave it up to the landowner to decide what to build within those limits. If the conservation easement prioritizes single-family homes, then land trusts may very well be participating in a subtle form of exclusionary zoning.

The law will take effect on July 1, 2023, so towns and landowners have just over a year to prepare for implementation.

PFAS Woes and Land Conservation

We’ve all been reading out the ever-expanding havoc that PFAS contamination is wreaking on Maine farms. PFAS, also known as “Forever Chemicals” because of their persistence in the environment and in the human body, hitched a ride into Maine farm soils as part of sludge-based soil amendments that started in the 1970s. Maine Farmland Trust has put together a helpful summary of the issue and what it means for Maine farmers. The Maine DEP also has a frequently updated PFAS page.

So what does PFAS contamination mean for land conservation in Maine? Here are a few thoughts that come to mind, in no particular order:

·       Due diligence steps should be updated. For current and future projects, land trusts that conduct in-house transaction screens for environmental contamination threats should be sure to check the Maine DEP’s map of sites licensed to spread biosolids. By now, most contractors who conduct Phase 1 environmental assessments have added PFAS to their list, but it doesn’t hurt to confirm this when hiring a professional.

·       Existing PFAS contamination is most important for current and future farmland projects. For the typical land trust project, where low-impact recreation will be the predominant use, the existence of PFAS shouldn’t be a barrier to proceeding with the project. But land trusts still should know if PFAS is a threat, as it might impact communications around hunting on the property or whether visitors should be discouraged from foraging for berries or other edibles.

·       For completed agricultural conservation easements, a PFAS finding may pose particularly thorny issues. The typical agricultural easement limits the protected property to agricultural and conservation uses. But what if agriculture on all or a portion of the property is suddenly found to be impossible because of PFAS contamination?  Maine Farmland Trust is currently looking into this question, and has had initial conversations with the Maine Attorney General office about the possibility of amending certain agricultural conservation easements where agriculture is no longer possible.  

·       For a completed non-agricultural easement or fee preserve, a PFAS finding is unlikely to be detrimental to the easement’s conservation purposes. The land is just as scenic as before, the wildlife values may be compromised but not in a way that is likely to affect the conservation easement, and recreational values should remain intact (although see the note above about informing visitors who might be hunting or foraging).

Everyone working in the PFAS mitigation arena keeps emphasizing that it’s a fluid situation, with new science and new legislation and relief programs ramping up quickly, so stay tuned to Maine Farmland Trust and the Maine DEP for further updates.

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