The City of Portland initiated the Residential Infill Project (RIP) to enable the development of Accessory Dwelling Units (ADUs) and Air B-and-B type units on properties zoned “exclusively” for single-family homes.  The logic was that this zoning was intentionally discriminatory.  Although it does prevent the development of duplexes and other multi-unit buildings, it is arguable that it was specifically to discriminate against residents without the means to own or rent a single-family home on a single lot. 

A more compelling reason to implement RIP is that land for new dwellings is scarce in Portland, and enabling additional units to be constructed in more zones would create so-called “middle housing,” including 1,2, and 3-plexes, townhomes (units with shared walls), and cottage clusters (tiny homes). 

In the last issue of the Eliot News, I described why the fear of RIP leading to new 6-plexes next door was misplaced.  Specifically, adding units to an existing home site requires the site’s owner to finance the development.  Portland implemented a fee waiver for ADUs to reduce the costs; nevertheless, the homeowner still has to finance construction, usually with a bank loan, which increases their debt.  The additional unit increases the value of the property in the eyes of the County Tax Assessor. Still, it is less clear that future home buyers will place a similar value on what would essentially be a rental property (or Air B and B) and make them landlords, subject to the City’s and State’s notorious landlord regulations and fees.  That prospect isn’t attractive to all homebuyers, especially in the pandemic.  Similarly, the current owner/builder of the ADU may tire of their landlord role but require the income from the unit to pay back the construction loan.  What to do? 

Eliot’s “residential” zoning already allows multiple dwelling units per lot, so RIP changes little for us: you can build that ADU (or 2), but you can’t sell it.  As the previous article noted, trying to sell the new unit as a separate dwelling unit would require navigating Portland’s unnecessarily restrictive lot partition regulations at considerable expense.  Here is why.

Zoning and building codes have strict rules for “setback”  (the distance from other properties) and access to public streets and utilities.  To facilitate ADUs these regulations are flexible; however, an ADU that meets ADU rules may NOT qualify as a separate dwelling on its own lot, a “lot partition.”  The most common partition is a “flag” that carves out property behind an existing building with access to the street via a strip of land, the “pole” for the flag lot.  The typical flag lot is “T” shaped, although I have seen “T” shaped ones in Eliot. 

Creating a flag lot in Portland is tricky.  For example, I wanted to partition an ADU/duplex using a T-shaped lot.  I was told the “pole” MUST be a minimum of 12’ wide.  I only had 11’, so no go.  I proposed demolishing a building on one side of the “pole” to get the required 12’ and rebuilding a new unit in its place.  Here is where things got crazy.  The new lot created by removing that building would be subject to current setbacks from existing lot lines, including the new pole.  That left a buildable area of only 7 feet!  I could appeal for smaller setbacks, which could leave 21 feet, but that appeal would cost a minimum of $16,000, take several months, and there is no guarantee it would be granted.  Eliot is in a Historic Conservation District, and if “historic” review was also required, that would add at least $21,000 to the cost.  This is a crazy way to encourage “middle” housing affordable to people of modest means!  Fortunately, it has been noticed, and State Senator Lew Frederick from Irvington submitted a bill to facilitate lot partitions to create more middle housing; SB 458.  The bill was signed on May 26^th.

What SB 458 does is prevent jurisdictions from imposing zoning requirements that make lot partitions for “middle housing” overly difficult.  It prohibits things like Portland’s 12’ wide “pole” mandate.  It also requires a prompt treatment of lot division applications and rapid review and decisions.  This schedule is written into the legislation, so Portland can’t “slow walk” an application or delay it with unnecessary hearings or public notices.  Neighbors within 100’ of a proposed division will be notified as well as the neighborhood associations, but there will be limited opportunities to comment and none to object if the standards in the bill are met.  As always, how this is translated into Portland’s zoning code isn’t clear at this point, although land divisions under these rules are expected to begin next July.  After that date, my interpretation is that a homeowner with an ADU on their property will be able to split that unit into a separate lot and sell it off.  This bill could be a godsend for people needing extra income or tired of being a landlord.  There is a potential risk to Eliot as well, and that is that it could encourage speculators to purchase our large lots specifically for this purpose.  That risk is tempered by the fact that the residential properties in Eliot already allow the development of multiple units.  This change will simply make it easier to offer those units for sale to buyers who can’t afford the prices current full-sized lots and houses cost, which is the goal for RIP and “middle housing” initiatives.