Paradigm Shifting Quiz: Should the Follow-Up Study to Maine's New Emergency Housing Act, Preceded It?
A comprehensive approach to Maine's housing shortage study would not have relegated the study of short-term rentals to an afterthought.
GrowSmart Maine’s executive director Nancy Smith is a registered lobbyist, Since 2016 GrowSmart Maine has taken an about-turn from advocating roots-up development to advocating for top-down centrally-controlled management GrowSmart commits up to 20% of its resources to communicating directly with the Legislature and the Governor and her staff. The Grow Smart Policy Actions are filed under docs at Maine.gov. There is no explanation for why but I am guessing it has to do with being a registered lobbyist.
Grow Smart’s Problem Statement https://legislature.maine.gov/doc/9175
Maine’s current uncoordinated approach to building places is causing real, unintended, and significant social,environmental, financial, economic, and cultural challenges and requires the creation of a cohesive approach to land development, redevelopment, and placemaking source
There are always unintended consequences.
Government deals with large numbers. masses. needs and values that are held in common by the greatest number of people but the man-made and natural systems that government attempts to manage are infinitely complex and so Inevitably there is always something that escapes consideration and that is why and how our concepts keep on evolving.
The founders of the United States Constitution were concerned with protecting the people from the tyranny of the majority, but there is also the need to protect our system of government from the tyranny of a minority, as I submit is the case with how LD 2003 was enacted as H.P. 1489 An Act To Implement the Recommendations of the Commission To Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions.
LD 2003 evolved through a collaboration (Appendix P) of about 12 people mostly in fields related to real estate and development, with the exception of Cheryl Golek, who describes herself as an author and political advocate with a passion for poverty and social justice-related issues, and Anthony Jackson of the Peace & Justice Center of Eastern Maine. The group shares one cohesive point of view. There is an argument to be made in support of their views but their motives are easily challenged and their view of things is only one manner of addressing the housing problem (and other related issues) and yet HP 1489 mandates statewide solutions applicable to every municipality. It was not until the bill was subject to testimony from the public that the authors of LD 2003 were exposed to other points of view, particularly pushback against the state-wide mandates and the overcrowding. However, the public testimonies for LD 2003 did not have an impact on the recommendations which were enacted into a law inconsistent with Maine’s Home Rule Amendment as I argued here.
The process of trying to find solutions for Maine’s housing shortage and growing homeless problem continued after the rushed enactment of LD 2003 (H.P. 1489), passed while policymakers ignored the immediate emergency created by the end of a federal assistance program that kept homeless families temporarily housed in hotels. The federal assistance was about to run out and was a looming emergency that policymakers knew was coming as H.P. 1489 was enacted as an emergency.
Although the federal assistance was supposed to end in January, news reporting about the homeless crisis continues to be sparse. I watched the video of the final commissioner session of the short-term rental study that took place on October 31 2022 but the testimony that was first in order was about the looming emergency of homeless families facing eviction from their temporary dwelling places during the cold days of January.
With federal funding expected to expire in January, Senator Hickman who served as chair of the study for LD 2003 and was also a member of the follow-up study had this to say in December 2022:
State lawmakers briefly considered a bill that would have replaced or amended the emergency rental assistance program in the last legislative session, said Sen. Craig Hickman, D-Winthrop, but the state was hopeful federal funds would last longer than they did.
"For us as a commission to recommend that the legislature consider establishing this program and figuring out a way to fund it that doesn't drive up taxes is a perfectly reasonable thing," Hickman said. source
This is s discouraging statement to read in conjunction with the Commissioners Report completed in November which included many promising recommendations including this one:
Recommendation #7. Create a State emergency rental assistance program that mitigates the end of the federally funded Emergency Rental Assistance Program; increase the General Assistance (GA) maximums for housing to match the actual cost of housing; provide greater assistance and resources to municipalities with respect to the processing of GA applications; and, due to this housing crisis, encourage the Governor to consider declaring a state of emergency to increase reimbursement to municipalities immediately.
Is Senator Hickman really saying that lawmakers only briefly considered a bill that would address this immediate humanitarian crisis that is upon us but dropped it hoping that the federal government would solve the problem?
After H.P. 1489 was enacted. another commission was created to study the effects of the short-term rental industry on the housing shortages in Maine. One might ask why the first study, so quickly enacted, preceded the study about the effects of the short-term industry rather than the other way around, especially since it was enacted as an emergency which means something that is of immediate concern. We might ponder what would have been the effect if the second study were first and its recommendations enacted and the first study was the second study.
The justifying rationale for HP 1489 makes frequent use of the term ”housing production” belying the developer culture behind it. The idea that the housing crisis is caused by the “underproduction” of housing is unsupported by population growth data. 2019 U.S. population estimates continued to show the nation’s growth was slowing source. In 2008 Boothbay's Population was 3,217 source. Most recent Boothbay census data puts the population at 3,003 source. While it is true that the data does not yet reflect the covid-generated population increase, that is not enough to explain the housing shortage and homeless problem, which was occurring before covid. The idea that the housing shortage is caused by housing underproduction is spin underscored by the decision not to include short-term rentals in the comprehensive view of the causes of real, and significant social, environmental, financial, economic, and cultural challenges. You can’t make claim to taking a comprehensive view and arriving at justifiable solutions, once you decide to ignore the elephant in the room, and once that decision is made the motivations claimed for what follows are not believable.
The second study’s official name is Commission to Increase Housing Opportunities in Maine by Studying Land Use Regulations and Short-term Rentals Increase Housing Opportunities in Maine Study
The top right-hand corner of this study says “Law Without Governors Signature MAY 8, 2022
Then it says:
Chapter 184 Resolves To establish a commission for the stated purpose and allocates a budget of $0.00 for the year 2022 and $2,250 for the year 2023.
Resolved: That, no later than November 2, 2022, the commission shall submit a report that includes its findings and recommendations, including suggested legislation, to the joint standing committee of the Legislature having jurisdiction over housing matters.
Sec. 8. Outside funding.
Resolved: That the commission shall seek funding contributions to fully fund the costs of the study. All funding is subject to approval by the Legislative Council in accordance with its policies. If sufficient contributions to fund the study have not been received within 30 days after the effective date of this resolve, no meetings are authorized and no expenses of any kind may be incurred or reimbursed.
Is it really true that lawmakers must do an outside fundraiser to support a study? (FOAA in but not received). Considering that H.P. 1489 provides grants of 25000.00 to non-profit organizations and municipalities that will work under the State’s guidance in developing municipal ordinances, why couldn't similar funding be made available through the same resource for this study? Isn’t a study of the effects of short-term rentals significant to a Ten-Year Plan for Maine? An article on the Airbnb industry updated in January 2023, places Southern Maine as #1 on the list of the most popular U.S. destinations for spring and summer 2021. Not significant to the Ten Year Plan?
It is probable that Build Maine and Grow Smart are recipients of the grants, since H.P. 1489, which created the grant program requires participants to be two collaborating non-profit organizations. Could the program waive the requirement of being a nonprofit organization for lawmakers working on an issue that the original study for H.P. 1489 decided to put off and now incorporates the public testimonies made in response to the original study for H.P. 1489?
This is how the original study was funded:
The 130th Legislature established the Commission to Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions (referred to in this report as the “commission”), with the emergency passage of Resolve 2021, chapter 59 (Appendix A). Source
As far as I know, to date, the only study resulting in an enactment is the first study that excluded short-term rentals but the testimonies reacting to LD 2003 are not dealt with until the later study that picks up where LD 2003 left off. So much for input from the public. LD 2003 was pushed through by and for developers.
The framework for LD 2003 has this to say about short-term rentals:
3. Short Term Rentals Rapid growth of unregulated short-term rentals in Maine has taken existing housing stock out of the year-round rental pool and put upward pressure on rental rates all over Maine. While we are not sure about the long-term impacts of short-term rentals, their popularity is impacting the housing market. The Commission should recommend further exploration of the impact of short-term rentals on housing supply to understand the benefits and drawbacks of regulating short-term rentals. (emphasis by author)
“ We could have done so and we knew we should do so, but we didn’t!”
Grow Smart’s Maine’s Policy Statement says it will be funded through the Governor’s Office of Policy Innovation and the Future (GOPIF) and zoning technical assistance funding from DECD for regional coordination and planning. Why can’t the study into short-term rentals also be funded by the Governor’s Office of Policy Innovation and the Future (GOPIF)?
The follow-up Study was completed in November 2022. It is this study that reflects the testimony found with LD 2003 as if LD 2003 were a response to such an immediate emergency that its enactment could not be delayed by considering or incorporating testimony responding to its findings. The recommendations in the November report are good ones and deserve to be part of the conversation, at least.
Political spin will always give a reason why but actions speak louder and give cause to ponder the real motivations behind an agenda. On reading Build Maine-Grow Smart’s vision, what seems to have escaped consideration is that humans are individuals and have unique needs for space. Take for instance the example of a person with agoraphobia, who fears entrapment. Imagine such a one is forced to live in a small space in a concentrated housing zone because Maine law mandates that open land be reserved for the uses of farming, hunting, and sports, (and airbnbs) thereby requiring that living space for people of ordinary means be packed together as tightly as possible. All can agree that there needs to be land to grow food but why should the person with agoraphobia be forced to live in an undersized living space in an overcrowded housing zone because the needs of hunters and sportsmen are prioritized over the needs of a person with agoraphobia. What might be the unintended consequences of that?
Cohesive means sticking together and that can mean entrapment for life forms requiring openness. Imagine being a tiny photosynthetic plant or phytoplankton in the ocean. The life forms at the root of the food chain get their energy from sunlight but the sunlight is blocked by a structure that surrounds everything and is held together with glue. There you have it! The unintended consequence is the end of life on earth and all because the bureaucrats overlooked the smallest little thing.
There are already (presumed) unintended consequences of enacting LD 2003 as a state-wide mandate, an act that was more or less endorsed by both Grow Smart and Build Maine in an iffy sort of way. But were the consequences really unintended? It’s hard to believe so as it is predictable that if concentrated housing zones are mandated state-wide in every municipality in Maine, it is an open invitation for housing developments. Developers will not target those communities most in need but the ones that are the most profitable and have the highest median income on which affordable housing subsidies and tax exemptions are based, while market-based costs for affordable housing remain more or less the same everywhere.
Better yet if the housing concentration zone is located in a popular short-term rental community it accelerates the rate at which the median income increases, and pushes the income and amount of rent that can be charged for government-subsidized affordable housing units upward.
It is even harder to believe that the profit prioritization is an unintended consequence when one of the three commissioners who wrote the framework for the act, is developer Erin Cooperrider, who is also the VP of the development corporation, The Boothbay Regional Development Corporation, launching the new law into reality with a 36-acre project in Maine’s second-wealthiest county in a coastal resort town hosting many short term rentals and where leadership does not speak of homelessness or low-income housing, but instead developers build boarding houses for the ”workforce”. Corporate-owned single-family homes or four-family units in a concentrated housing zone are a step up from a boarding house, which in a humanitarian community design would accommodate those who have fallen between the cracks into homelessness, as every Airbnb community should have. Leadership, who appears to believe it should control all speech in Boothbay, does not mention homelessness, and it is not said if living in a boarding house is contingent on working for a particular employer, in the popular and contemporaneous throwback to feudalism
It’s fortunate for the Boothbay Regional Development Corporation that LD 2003 was enacted as an emergency act so that it could skip the standard 90 days to become law. BRDC filed its papers of incorporation in June of 2022, a little more than a month after LD 2003 was enacted into law as an emergency measure. The panel studying the effect of short-term rentals did not commence until September and by then the Boothbay Selectmen, without public input, had awarded the BRDC $50,000 of ARPA (American Rescue Plan Act) funds
Perhaps the 9% sales tax that the State collects on bookings and services in the short-term rental industry could be appropriated to a fund for the housing emergency created in no small part by the short-term rental industry.
Something of the sort is in the follow-up Commission Study
Senator Pouliot suggested Redirect 50% of an STR’s portion of lodging tax revenue [from the General Fund] to the municipality of the STR.
Commissioner McGovern suggested: Revenue from the lodging tax on short-term rentals is allocated to a rental assistance program for tenants.
That makes sense not only because the short-term industry should give back to contribute to solutions to the problems it is generating, but also because allowing all the tax revenue to go to the State makes the State the industry-wide benefactor, after the platform. So it is an industry regulating itself, and this factor is likely a motivation for the power grabs over municipal ordinances enacted in HP 1489. One might consider that crowding the workforce and low-income residents into housing concentration zones so that Maine’s abundant open spaces can be utilized in the interest of hunters and outdoor recreational purposes also serves the interests of the short-term rental industry. Maine is now officially organized by the government as a vacationland- no longer just a motto!
There is a very long list of testimonies for or against LD 2003. The ones I have read frequently express doubt about the state-wide mandate. This is true of Kara Wilbur, Chair of Build Maine, in her Testimony for LD 2003. Ms. Wilbur suggests that Priority Development Zones, be opt-in, not mandated, and areas are categorized more specifically, mentioning Downtowns, Adjacent Neighborhoods, Village Centers, Rural Crossroads, High Impact Corridors, Rural Farmsteads, and Working Waterfronts. What it all comes down to, Ms. Wilbur is saying is that Home Rule actually works better than the one size fits all approach by the State.
The full report for the later study, including the impact of short-term rentals, dated November 2022 considers Ms. Wilbur’s testimonial response to LD 2003 in its recommendations:
Recommendation 5-B. The commission unanimously supports the following provision from Policy Action #4 in the Policy Action 2023 plan:
Improve on designated growth area concept and provide a more relatable framework that aligns better with the kinds of places we have in Maine: crossroads, villages, downtowns, neighborhoods, high-impact corridors, rural farmsteads, working waterfronts, etc.
It’s promising to see the testimonies woven into real policy recommendations but are they on a path to becoming law? Grow Smart includes a link to the second Commissioner Study on its website but is it more than diplomacy? To enact these policies would require a considerable amendment of LD 2003.
Ms. Wilbut (Build Maine) suggests that multiple housing zones might work better than a single mandated concentrated housing zone in every community, undermining the clear intention of LD 2003 to segregate year-round inhabitants into a concentrated zone permitted to be overcrowded. Ms. Wilbur is perhaps trying to be diplomatic when she says that “We believe the recommendation for 4 unit buildings was intended to say 4 units per lot”
No- the act meant what it says In its plan The Boothbay Regional Development Corporation includes 8 units in 2 multifamily dwellings in the second stage of development and 12 units in 3 multifamily dwellings in phase 7. The four-family housing units are also promoted on DECD’s website.
Representative Traci Gere, asked ” STRs in a residential zone – should this be an allowed use in a residential zone or is this a commercial activity in a residential zone?:- Good question- There is more reason to ask this question about short-term rentals as a business in a home since short-term rentals make the housing market more expensive while other types of businesses in a home make housing more affordable. Furthermore, productive businesses in a home reduce transportation and environmental costs since people are not commuting to work every day.
Commissioner Graham wrote:
Establish that all low-income housing projects that receive state, local or federal incentives must remain as low to moderate-income units for a minimum of 45 years to avoid developers selling “affordable housing” to communities and receive TIF incentives quickly being converted into market-rate units or condos once TIF restrictions are expired, evicting tenants.
I have mixed feeling about that solution because it also limits upward mobility for those living in low-income housing but I also get the point. BRDC, the development corporation that Erin Cooperrider is now heading in Boothbay is targeting TIF funding. Meanwhile, CHOM, the for-profit subsidiary of CEI that Ms. Cooperrider directed for seventeen years is transferring its housing units to unaffiliated entities as reported on CEI’s latest 990 filings, Why are pre-existing low-income and affordable;e housing being transferred out of the system during an affordable housing emergency? Is it due to terms negotiated with private equity investors?
I spotted only two testimonies for LD 2003 identified as “resident” and both are Beth Della Valle, one being her testimony and the other the supporting documents.
Beth Della Valle introduces herself as practiced in land use planning in Maine for over 40 years, working with the State Planning Office, regional commissions, and municipalities that range in size and location all over the State from the public, private, and nonprofit sectors and currently the Director of Planning & Development for Sanford, though not speaking on the City’s behalf.
Beth Della Valle’s testimony begins: ”I applaud the goal of this bill and for directing new technical assistance resources to towns that are on the front line of providing affordable housing; however, implementation in this LD is flawed.”
and continues:
……..
In Maine, management of land use has been a partnership between the State and towns, as codified in the Growth Management Act (Title 30-A, Chapter 187), since 1989. This LD breaks faith with that partnership and delegates oversight to DECD, rather than DACF. The bill duplicates the Municipal Planning Assistance Program at DACF, which is grossly underfunded, with new staffing and resources directed to DECD. The $4.6 M dollar fiscal note would be directed far more appropriately to DACF and the State’s 11 regional planning commissions. source Beth Della Valle’s testimony
Ms. Della Valle’s testimony addresses Section 5 §4360.C.4 of LD 2003. Almost the entirety of that section is struck out, leaving only this: (parts in italics are newly added language. strike out parts are repealed language)
D. The number of building or development permits for
newany kind of residential dwellings, including but not limited to building or development permits for affordable housing, allowed under the ordinance isrecalculated every 3 yearsnot restricted.
In short Section 5 §4360.C.4 says - The number of building or development permits for any kind of residential dwellings, allowed under the ordinance is not restricted
The comment box in Ms. Della Valle’s documentation says
Federal case law requires that “A zoning ordinance must be pursuant to and consistent with a comprehensive plan adopted by the municipal legislative body.” Proposed amendment conflicts with §§5.C.A., which requires growth caps to be consistent with Comp Plan.
The next box offers suggestions on how to exempt growth caps from the required basis in Comp Plan, by amending §4314.3, but currently, §4314.3 has not been amended since 2011.
About LD 2003 §4364-C. Permitting 4 dwelling units everywhere housing is permitted Beth Della Valle has this to say”
Applying this standard everywhere housing is permitted will promote sprawl, in direct contradiction with the core of the GMA and generate unnecessary costs for state and locate dollars to upgrade/extend/expand roads, utilities, and school bussing throughout the community and condemn future residents to having to drive everywhere to access jobs, goods and services. Proposing action without planning, as required in the GMA, including designation of “growth” and “rural” areas in local Future Land Use Plans is a prescription for costly mistakes.
Beth Della Valle’s Suggestions are:
1) Limit 4 dwellings/structure to “designated growth areas” and outside of “designated rural areas”.
2) Adjust language to reflect minimum lot size requirement of 20,000 square feet for onsite septic.
3) Integrate Priority Development Areas into “designated growth areas” to better link this strategy to current land use framework and state funding of growth related capital investments (§4349-A), both in statute.
One word we do not find in LD 2003 or in The BRDC’s plans is low-income, but according to the National Low-Income Coalition Maine has 39,716 OR 26% Renter households that are extremely low income.
What’s happening in Maine’s poorest counties since this emergency bill was enacted? Apparently not much.
Grow Smart Maine does valuable work in bringing bills under enactment consideration to the public’s attention but they are targeting the agenda that Grow Smart Maine supports and so we need to broaden the conversation with other groups working in a similar way targeting alternate visions for Maine. The follow-up Commissioner Study to LD 2003 is a good start for an alternate conversation.