The Maine Legislature is on the verge of voting on L.D. 2003, a bill sponsored by Speaker Ryan Fecteau that is designed to federalize local land use zoning and community growth management as a method for creating housing. Should it be enacted, it promises to change the face of rural and suburban Maine towns forever while saddling all municipalities with increased service burdens and lawsuit expenses.
L.D. 2003 turns on this key provision: “A municipality shall ensure that ordinances and regulations are designed to affirmatively further the purposes of the federal Fair Housing Act, 42 United States Code, Chapter 45, as amended, and the Maine Human Rights act to achieve the statewide or regional housing production goal.”
First, while publicly pitched as a free-market approach to increase housing by converting single-family zones to multifamily statewide, in fact it would give state central planners in the Maine Department of Economic and Community Development as well as the Maine State Housing Authority unprecedented powers to establish regional production housing goals that the municipalities must enforce.
Massachusetts provides a current example of what Maine municipalities will be facing with respect to housing production quotas set by the state. Massachusetts’ state government recently has mandated multifamily zoning and apartment housing goals in the following towns: 750 units apiece in Wenham (population 5,000); Manchester (population 5,395); Rowley (population 6,200); Topsfield (population 6,570), and Georgetown (population 8,470). Assuming an average of two persons per unit, this would represent 25 percent population growth in Rowley, as an example. Officials from these towns are arguing that the resulting expenses for increased infrastructure demands, municipal services and educational services (including native language teachers for Limited English Proficiency students and parents) will represent unfunded mandates. Maine municipal officials fear the same thing will happen to them should L.D. 2003 be enacted.
Second, by requiring municipalities to apply and enforce the federal Fair Housing Act to local zoning and other ordinances, L.D. 2003 is purposefully encouraging the use of lawsuits by both private actors (including developers) and the federal government (in this case, the Department of Housing and Urban Development) against municipalities. The basis would be assertions of disparate-impact liability for municipal denials of low-income housing development proposals. Liability would be based on the municipal failure to achieve socioeconomic housing integration for members of federally protected characteristics that include race, color, religion, sex, familial status, national origin and disability.
To comply with the state requirement to affirmatively further the purposes of the federal Fair Housing Act, municipalities would be required to take significant actions designed to increase fair housing choice or decreasing disparities in access to opportunity with respect to the protected classes. Notably, this would not necessarily include help for first-time homebuyers, older people looking to age in place and recent returning college graduates.
As a way of expanding housing options, L.D. 2003 represents the most extreme combination of state central control and federalized zoning by any state in the United States. It would place Maine state planners in control of assigning housing production quotas for all municipalities. And it would enforce federal zoning requirements with the mechanism of private and federal lawsuits against municipalities under the very broad liability theories of the federal Fair Housing Act. Local officials must not be turned into agents of the state and federal governments. Please ask your ask your legislators to oppose this bill and, instead, give the Maine Municipal Association an opportunity to offer workable alternatives.
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