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September 21, 2000 Letter from Matthew Manahan of Pierce Atwood to Limington Planning Board Chair Wendy Walker regarding the Webster Mill Place, a low-income housing project proposed by York Cumberland Housing


PIERCE
ATWOOD


A T T O R N E Y S

 

 MATTHEW D.
MANAHAN

DIRECT
207.791.1189
 
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MManahan@
PierceAtwood.com

 

 

 

 

 

 

 

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Portland, Maine
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September 21, 2000

 

 

Wendy Walker, Chair
Town of Limington Planning Board
P.O. Box 240
Limington, Maine 04049

Re:
Webster Mill Place

Dear Wendy:

        Following up on the Planning Board's September 14, 2000 meeting, on behalf of Webster Mill Associates ("WMA") this will summarize the legal issues that have arisen in regard to the Webster Mill Place application, and will outline WMA's position on those issues.

1.Whether the proposed multifamily development requires 60,000 square feet of lot size for one dwelling unit in each building.

        As you know, the Dimensional Requirements Table in Section 6.3 of the Zoning Ordinance lists "Multifamily Dwelling (first dwelling unit)" as requiring in the Commercial Zone a minimum lot size of 60,000 square feet, and "Multifamily Dwelling (each additional unit)" as requiring 40,000 square feet. The question is whether the term "Multifamily Dwelling" refers to a multifamily dwelling use of the property, or to each multifamily dwelling on the property. If it refers to a multifamily use, then the first dwelling unit on the property requires 60,000 square feet of lot size, and each additional dwelling unit (in this case 19 of them) requires 40,000 square feet of lot size. Here, the minimum lot size requirement would be 820,000 square feet, or about 19 acres. On the other hand, if it refers to each multifamily dwelling, then the first dwelling unit in each structure requires 60,000 square feet of lot size, and each additional dwelling unit (now 15 of them) requires 40,000 square feet. In that case, the minimum lot size would be 900,000 square feet, or about 21 acres.

        The Planning Board's reasoning in concluding that the term "multifamily dwelling" in the Dimensional Requirements Table refers to each multifamily dwelling structure is based on the definition of the term "multifamily dwelling," which begins "a building . . . ." Thus, the reasoning goes, the use of that term in the table must mean each building, or multifamily dwelling structure. This reasoning, though, ignores the issue of whether the term "multifamily dwelling" refers to a multifamily dwelling use, as opposed to a specific multifamily dwelling itself. To


Wendy Walker, Chair
September 21, 2000
Page 2

reach a determination on that question, one must review the context of the Dimensional Requirements Table.

        When discussing lot sizes the table lists uses, not structures, so that each listed use of a property -- not each structure -- requires a certain lot size. The mere fact that a use takes place within a structure does not convert the lot size requirement from one that applies to the use of the property to one that applies separately to each structure on the property. For example, the table speaks of "mobile home parks," "commercial," and "industrial" uses, all of which refer to the use of the overall property.

        When the drafters of the ordinance wanted to base a requirement on each multifamily dwelling structure on a property, they knew how to do so. In setting minimum road frontage, the Ordinance expressly refers to "multifamily housing (per principal structure)." If the term "multifamily dwelling" in the lot size section referred to the multifamily dwelling structure, rather than the multifamily dwelling use, then the drafters of the Ordinance would have used that same term in the road frontage section. That is, they would have said "multifamily dwelling,'" and there would have been no need to add the "per principal structure" parenthetical -- because the simple use of the term "multifamily dwelling" would have referred to each separate structure (under the Planning Board's reasoning). Because the table speaks in general in terms of uses, though, not structures, they had to use a different term when they wanted to refer to the structures themselves. Hence, they used the phrase "multifamily housing (per principal structure)" in the road frontage section, to refer to each structure.

        Here, because the property at issue will be used for a multifamily dwelling use, the minimum lot size is 60,000 square feet for the first dwelling unit and 40,000 square feet for each additional dwelling unit.

        The Planning Board's interpretation also would run afoul of constitutional requirements. In combination with Section 8.14 of the ordinance,  1  the Planning Board's interpretation has the effect of requiring almost 1,300,000 square feet of lot size (not considering the community building, which is discussed below) -- or over 30 acres of land. It is completely unnecessary, and excessive, to require so much land for a 20-unit apartment complex, and it raises serious concerns about whether Limington is either intentionally or unintentionally zoning out low-income housing.

        Courts in other states have addressed the issue of zoning out low-income housing, and have concluded that equal protection and due process requires towns to provide for adequate low income housing. See, e.g., South Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151, 174, 336 A.2d 713 (N.J. 1975) ("We conclude that every such municipality must, by its land


Wendy Walker, Chair
September 21, 2000
Page 3

use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need therefor"); Britton v. Chester, 595 A.2d 492 (N.H. 1991) (overturning local ordinance that had the effect of excluding most multi-family, affordable housing).

        It appears that Limington has discouraged low-income housing, with the exception of allowing landowners to place mobile homes on their properties (which requires ownership of the mobile home, and often ownership of the underlying land). In the appendix to the Limington Comprehensive Plan, discussing survey results, the Plan notes that "none of the proposed policies for providing affordable housing were met with any enthusiasm. The only one with a positive response was to encourage more owner-built homes . .... Non-residents tended to favor allowing smaller lot sizes and oppose requiring a development mix, residents more strongly opposed multi-family housing as a strategy . .... For multi-family housing, there was a direct link between length of residence and opposition to the idea." App. I at 4-6. Recent statements concerning WMA's proposed project echo this distaste for non-elderly low-income housing. For example, in the attached March 23, 2000 letters the Chair of the Limington Board of Selectmen wrote that the Board was "extremely pleased to learn of the proposed 24-unit apartment complex for elderly housing," and "looks forward to this project with excitement and will support this project in all possible respects." In contrast, in regard to this proposed non-elderly low-income housing project, the Chair of the Selectmen wrote that "the Board of Selectmen very much opposes such a project," citing as concerns Limington's inability to offer services, including shopping, health care facilities, and public transportation. The March 23 letters do not explain why low income families need those services more than the elderly need them.

        It seems clear that the Town has done as little as possible to accommodate the need for low-income housing in Limington. If the Planning Board were to interpret the Ordinance to require 40,000 square feet of lot size for all units after the first one on the property, however (rather than after the first unit in each building  2 ) , and addressed our concern (discussed below) with regard to the community building. our concerns in this regard would be somewhat alleviated.

2. Whether the proposed community building requires an additional 60,000 square feet of lot size.

        At the September 14, 2000 Planning Board hearing one issue that arose is whether the proposed community building (which will be 22' x 45', or 990 square feet, and will contain laundry facilities, a computer room, a bathroom, and the boiler room) requires additional lot area. Because the community building will be an accessory use, though, it does not require additional lot area, even if WMA proposes to maintain it as a freestanding building.


Wendy Walker, Chair
September 21, 2000
Page 4

        The Ordinance defines the term "accessory use or structure" on page 2 in relevant part as "a use or structure which is customarily and in fact both incidental and subordinate to the principal use or structure. The term 'incidental' in reference to the principal use or structure shall mean subordinate and minor in significance to the principal use or structure." There can be no doubt that the community building, which would not and could not exist but for the permitted principal multi-family dwelling use on the property, is both incidental and subordinate to the multi-family dwelling use.

        Because the Ordinance does not impose additional lot size requirements on accessory uses and structures,  3  there is no additional lot size requirement for the proposed community building.

3. Whether Section 10.3.2.12 of the Subdivision Ordinance applies only to streets.

        Opponents of Webster Mill Place have argued that Section 10.3.2.12 applies to this application to require that no entrance of any type onto Route 25 may be located within 1,000 feet of any other entrance onto Route 25. Because the existing driveway shared by the Boston/Edgecomb lot and the southeast portion of the retained Blake lot would be within 1,000 feet of the access road that will serve Webster Mill Place, the opponents argue that WMA instead must use the existing driveway to access Webster Mill Place. This interpretation is mistaken, though, because 10.3.2.12 applies only to "streets," and the existing Boston/Edgecomb driveway is not a street."

        Section 10.3.2.12 is a part of Section 10.3.2, entitled "Layout." Section 10.3.2 is a part of Section 10.3, entitled "Streets." Thus, Section 10.3.2.12 applies to the layout of "streets." That word is defined on pages 5-6 of the Subdivision Ordinance, as follows: "The word 'street' means and includes such ways as alleys, avenues, boulevards, highways, roads, streets and other rights-of-way. The term 'street' shall also apply to areas on subdivision plans designated as 'streets', etc." None of the listed terms is defined in the ordinance, but all of them refer to something that is a public way, and not a private driveway. Despite this, the project's opponents have argued that the phrase "and other rights-of-way" includes private rights-of-way. That interpretation, though, ignores the black-letter law ejusdem generis rule: "where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." New Orleans Tanker Corp. v. Department of Transportation, 1999 ME 67, ¶ 7, 728 A.2d 673, 675 (citation omitted). Thus, because the words of enumeration in the definition of "street" all relate to public rights-of-way, the general phrase "and other rights-of-way" must also refer only to public rights-of-way -- and therefore does not encompass private driveways.


Wendy Walker, Chair
September 21, 2000
Page 5

        Because the Boston/Edgecomb driveway is not public, it is not a "street," and thus there is no prohibition on constructing a street (in this case the Webster Mill Place access road) within 1,000 feet of that driveway.

4. Whether Section 10.3.2.12 of the Subdivision Ordinance applies only to new entrances.

        Section 10.3.2.12 also does not prohibit construction of the Webster Mill Place access road within 1,000 feet of the Boston/Edgecomb driveway because that section applies only to new entrances. That is, even if it applied to driveways, it would not apply to an existing entrance like the Boston/Edgecomb driveway (or to the Webster Mill Place access road itself, which will be an upgrade of an existing tote road). The very sentence at issue demonstrates this: "Entrances onto existing or proposed arterial streets shall not exceed a frequency of one per 1000 feet of street frontage." The drafters clearly knew how to cover both existing and proposed entrances, because they expressly spoke of "existing or proposed arterial streets." In contrast, by referring not to "existing or proposed" entrances, but simply "entrances," the ordinance must refer only to those new entrances that are proposed as part of the subdivision application.

        Thus, Section 10.3.2.12 does not prohibit the Webster Mill Place access road from being within 1,000 feet of the existing Boston/Edgecomb driveway.

5. Whether the Board may reject the project out of concern that it will increase the crime rate, or will otherwise be inconsistent with the "public health, safety, or welfare."

        Although at least one member of the Planning Board has assumed -- with no empirical evidence -- that the project will increase crime, it is clear that the Planning Board may not reject the proposal out of concern that it will increase crime, or based on alleged inconsistency with "public health, safety, and welfare." General feelings of uneasiness are not sufficient grounds to reject an application for a permitted use. The Maine Supreme Judicial Court has stated on numerous occasions that administrative boards may not reject applications on the basis of vague notions of what is adverse to the "public health, safety, and welfare." Such determinations may only be made by a legislative body. See Kosalka v. Town of Georgetown, 2000 ME 106, ¶ 12; Cope v. Inhabitants of Brunswick, 464 A.2d 223, 227 (Me. 1983) (compliance with the "health, safety and welfare of the public and the essential character of the area" is not sufficiently specific to withstand challenge).

6. How much weight should the Planning Board give to certain alleged inconsistency between the proposed project and the Limington Comprehensive Plan?

        One member of the Planning Board asked how much weight the Board should give to the alleged inconsistency between the project and the provision on page 74 of the Comprehensive Plan stating that one goal is to "provide efficient and economical public services to the citizens of Limington." The member argued that the Town has a shortage of school space,  4  as well as an


Wendy Walker, Chair
September 21, 2000
Page 6

inability to provide the policing that would be necessary as a result of increased crime that allegedly will be brought about by the project.

        According to Section 9.2.1 of the Subdivision Ordinance, "any proposed subdivision shall be in conformity with a Comprehensive Plan or policy statement of the municipality and with the provisions of all pertinent state and local codes and ordinances." Thus, the Planning Board must consider whether the proposed subdivision will conform to the Comprehensive Plan. This requirement is similar to the requirement in State law that land use and zoning ordinances that are not consistent with a comprehensive plan are void after certain dates set forth in the law. 30-A M.R.S.A. 4314(2,3). The Maine Supreme Judicial Court has stated that the test for determining whether an ordinance is "consistent" with a comprehensive plan is whether the Town's legislative body "could have found the amendments to the Land Use Ordinance to be in basic harmony with the comprehensive plan." Adelman v. Town of Baldwin, 2000 ME 91, ¶ 22 (emphasis added). That is, it is not necessary that the ordinance "comply" in every respect with the comprehensive plan; basic harmony is all that is required. This is because comprehensive plans are documents that do not have the force of law, but which are intended to serve as 'planning documents to guide a town's future growth, and to serve as the blueprint for future land use ordinances.

        The Limington Comprehensive Plan contains several provisions that show that the proposed Webster Mill Place project is in conformity with the Plan:


Wendy Walker, Chair
September 21, 2000
Page 7

        In short, it is clear that the proposed project is in conformity with the Limington Comprehensive Plan. Further, as previously noted, the Board may not reject the application based on vague notions that the project is not consistent with the public health, safety, or welfare.

7. How many "lots" are included in the proposed subdivision?

        The Limington Subdivision Ordinance, adopted in 1972, does not include the 1990 amendments to the State Subdivision Law that provide that the term "subdivision" includes "the division of a new structure or structures on a tract or parcel of land into 3 or more dwelling units within a 5-year period [and] the construction of 3 or more dwelling units on a single tract or parcel of land. . . ." 30-A M.R.S.A. 4401(4). Nonetheless, because these provisions are mandated by State law, the Webster Mill Place application must obtain local subdivision approval. Although this issue is not in doubt, because the Limington Subdivision Ordinance speaks only in terms of "lots" it raises the question of how to treat the 20 proposed dwelling units and the five proposed multifamily dwellings. Are they "lots" for purposes of determining the appropriate application fee?  5  Are they "lots" for purposes of determining whether the application is for a major or minor subdivision?

        Although the Subdivision Ordinance does not define the word "lot," it is clear that it does not include separate dwelling units, or separate multifamily dwellings on one parcel of land. The word "lot" is defined in the Limington Zoning Ordinance as follows: "A parcel of land occupied or capable of being occupied by at least one building and the accessory buildings or uses customarily incidental to it, including such open spaces as are required by the Ordinance, and having frontage upon a street, road, or private road, as required by this Ordinance." Zoning Ordinance, p. 9. This definition cannot include a dwelling unit, because such dwelling units (1) are not parcels of land, (2) are not occupied or capable of being occupied by a building, and (3) do not have frontage upon a street, road, or private road. Similarly, the five multifamily dwellings that will comprise Webster Mill Place cannot be "lots" because they will not have independent frontage on a street or road. The Subdivision Ordinance treats "lots" as separate parcels of land with separate street frontage, and to try to shoehorn dwelling units or multifamily dwellings into "lots" would lead to absurd results. See, e.g., Subdivision Ordinance 9.8.

        Thus, although they require review under the subdivision ordinance, dwelling units and multifamily dwellings are not "lots." Because the proposed subdivision application would divide the existing Blake parcel into three lots (one for the Webster Mill Place project and two to be retained by Mr. Blake for later development), the application proposes three "lots."


Wendy Walker, Chair
September 21, 2000
Page 8

        We understand that there is a concern that treatment of the application as only three lots would result in review as a minor, rather than a major, subdivision. If this is a concern, the Planning Board has authority to require that a minor subdivision comply with all or any of the requirements specified for major subdivisions. Subdivision Ordinance 5.1.1. Further, it is quite clear that any subdivision must meet all the requirements contained in State law. 30-A M.R.S.A. 4404.

*   *   *   *   *

        We have been unable to obtain a current copy of the Limington Subdivision Ordinance (that includes any post-1972 amendments). Could you arrange to have a copy sent to me?

        Thank you for your consideration of these points. Because I understand you will be seeking, the advice of Jim Haddow on these issues, I am sending a copy of this letter to him. We ask that Jim send us a copy of his advice to the Board, so that we may prepare our revised submissions accordingly, as soon as possible.

Sincerely,
Matthew D. Manahan
Matthew D. Manahan

Enclosures
[Kathy Maddocks
3/23/00 letter on low-income housing to John Egan]
[Kathy Maddocks 3/23/00 letter on elderly housing to Genie Nakell]

cc: James B. Haddow, Esq.
Genie Nakell
Thomas S. Greer
Herbert A. Semple
John Blake


Footnotes:

 1        Note that the density provisions of Section 8.14(C) make no sense. Section 8.14(C)(b) states that "in order to determine the maximum number of dwelling units permitted on a tract of land, the net residential acreage shall be divided by the minimum lot size required in the District." Because Section 6.3 requires that the minimum lot size required in the District be calculated by reference to the number of dwelling units, one cannot then determine the permitted number of dwelling units by dividing the net residential acreage by that very same minimum lot size. Because Section 8.14(C) cannot be applied, it must be ignored. This results in a minimum lot size based only on the 40,000/60,000 formula set forth in Section 6.3.

 2        Note that because it prohibits multi-family dwellings of more than four units each (see the definition of "dwelling, multi-family"), requiring 60,000 square feet for one unit in each building would make multi-family housing only marginally more attractive that multiple single family dwellings, which require 60,000 square feet each in the Commercial District.

 3        Even if the Ordinance did contain a lot size requirement for the community building, the Ordinance does not contain any requirement that lot size minimums applicable to separate uses must be aggregated, except in the shoreland zone. That is, as long as the lot size is greater than the larger of the two lot size minimums, it would satisfy both minimum lot size requirements. In regard to lots in the shoreland zone, see Ordinance Section 6.4.8(A)(5) ("if more than one residential dwelling unit or more than one principal commercial light structure is constructed on a single parcel, all dimensional requirements shall be met for each additional dwelling unit or principal structure").

 4        It should be noted that the Town currently has a building permit limit, so construction of 20 new apartments would be in lieu of construction of 20 new single family dwellings. The impact on town services of 20 new apartments will be no different than the impact of 20 new single family dwellings. In regard to schools in particular, most of the residents of the new apartments will come from Limington or surrounding towns, and therefore would attend the SAD 6 school system anyway (as would the children of whomever else used those 20 building permits).

 5        It is not clear how the Town calculates the appropriate fee for this application. We understand that the subdivision application fee is based on the number of "lots" in the subdivision, but we have been unable to locate an ordinance provision setting forth that requirement. Although we understand that the Town Clerk has stated that the site plan review fee is $150, we also are unable to locate an ordinance provision setting forth that requirement, and we do not know whether the $150 applies per building, per lot, or per overall application. We request clarification of these points, including citations to the ordinance provisions that form the basis for the applicable fee.


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