Maine Could Be the Third State To End Single-Family-Only Zoning

The Pine Tree State is embracing California-style housing reforms. It could run into California-style problems.

Maine is embracing new California-style laws aimed at reducing restrictions on new housing. It could soon run into some of the same problems encountered by the Golden State's reforms.

Last week, the Maine House of Representatives passed L.D. 2003. The legislation legalizes "missing middle" housing options such as accessory dwelling units and duplexes, gives state officials the power to set housing production goals, and requires local laws to "affirmatively further" those goals.

The bill now heads to the Maine Senate, where it has already been approved once before.

The measure has attracted bipartisan support, reflecting a growing consensus that local governments' zoning regulations are making housing unaffordable and that state preemption of those regulations is one means of bringing housing costs down and returning rights to property owners.

"The lack of affordable housing in Maine has reached a crisis level," said House Speaker Ryan Fecteau (D–Biddeford), the chief sponsor of L.D. 2003, when the Senate first approved the bill. "This legislation could create more housing opportunities in every community in Maine."

"The housing market, like all markets, is subject to the law of supply and demand. For a long time, government over-regulation has distorted the housing market," said state Rep. Amy Arata (R–New Gloucester), who added that the bill "includes a free-market solution to housing shortages and honors property rights."

Should L.D. 2003 become law, Maine would become the third state to abolish single-family-only zoning.

In 2019, Oregon passed a law legalizing duplexes on all residential land in small towns and up to four-unit homes in single-family zoned land in communities of at least 25,000 people. California passed a similar bill legalizing duplexes on almost all single-family-zoned land in 2021.

Maine's legislation would require municipalities to allow two-unit homes everywhere that single-family homes are allowed today, and to allow four-unit homes in designated growth areas. The bill would also guarantee homeowners the right to build accessory dwelling units (ADUs)—sometimes known as granny flats or in-law suites—on their single-family properties.

Localities would not be allowed to require ADUs to come with additional parking spaces (a requirement that often makes them infeasible). They could still set maximum sizes for accessory units, and they would retain the ability to create their own permitting processes for duplexes and ADUs.

The bill also eases density restrictions and parking requirements for deed-restricted affordable housing in multifamily-zoned areas. Provided they offer units for rent or sale at specific below-market rates, these developments can be built at 2.5 times the density of whatever the multifamily zone already allows. They'd also only have to include one parking space for every three units.

The most controversial aspects of the bill are also its most centralizing. L.D. 2003 would give state officials the power to set statewide housing production goals. Municipalities would have to design their own regulations to meet those targets. They'd also have to ensure their regs would "affirmatively further" the goals of the federal Fair Housing Act.

Some local officials have said that these requirements would give cities effectively zero control over density, thus forcing them to allow development that quickly outstrips local infrastructure and services. Not doing so would open them up to lawsuits based on the vague and shifting sands of federal fair housing rules.

Nick Murray, a policy analyst for the free market Maine Policy Institute, also expressed concern that these provisions will invite meddling from Washington.

"The reference to federal policy is worrisome," he wrote in March, "because it could mean that the federal Department of Housing and Urban Development (HUD) would hand down these goals to the state, further separating housing policy from local communities."

"Affirmatively furthering" fair housing is a nebulous concept. The federal government's own regulations defining that term have been in flux for a few decades now, and they are subject to substantial rewrites with each new presidential administration.

So it's hardly clear what this provision would oblige local governments to do. Would it outsource Maine's zoning decisions to D.C. bureaucrats with limitless discretion, or would it just be a toothless bit of code? Figuring that out would probably require lots of lawsuits.

State officials setting housing production goals is also hardly a free market ideal. How worrisome that provision is again hinges on what it would require localities to do.

If the ultimate impact is that municipalities would have to continually allow more density, that would just mean that local governments could enforce progressively fewer restrictions on housing construction. Private property owners would still be the ones deciding what gets built where.

But state housing production goals don't have a great track record when it comes to actually getting housing built.

For decades, California's state government has maintained similar targets: It projects regional housing needs and then requires local governments to plan for enough new housing development to meet those needs. For most of their history, these requirements have been pretty useless. Local governments have been able to ignore them, or offer paper-thin compliance, without penalty.

In recent years, animated YIMBY activists have started using lawsuits and legal threats to force local governments to comply with these planning quotas. The state is staffing up housing enforcement units. Lawmakers have passed bills giving these planning quotas more teeth.

Those efforts are succeeding at getting some municipalities to take zoning reform more seriously. But progress has still been slow and halting. It's hard to force local governments to permit more housing if they really don't want to.

Maine officials might soon discover this fact. L.D. 2003 leaves a lot of room for intransigent local governments to undermine the spirit of its reforms.

The bill prevents municipalities from setting density restrictions on two- and four-unit homes that are stricter than what they set for single-family homes. But ideally, duplexes and fourplexes would be allowed to be larger to accommodate the additional units.

When Minneapolis legalized three-unit homes on single-family lots but didn't increase allowable densities, very few three-unit homes were actually built.

The duplex and ADU legalization parts of L.D. 2003 also allow local governments to set permitting procedures for these units. That opens the door to localities setting up lengthy, discretionary approval processes that discourage people from actually building them.

That's exactly what's happened in California. The first pieces of state-level legislation legalizing ADUs date back to the 1980s. Localities stymied the construction of these units by charging high fees, requiring endless permits, or imposing other restrictions that made them infeasible. It took decades and several more bills before local governments actually made building ADUs easy.

The state's recent legislation legalizing duplexes is running into similar, often creative resistance.

Murray of the Maine Policy Institute, in written testimony submitted to the state legislature, argues that this is an inherent problem with forcing local governments to allow housing they really don't want. He suggests a better approach would be to make the ADU and duplex portions of L.D. 2003 voluntary and then give financial incentives to local governments to adopt them.

That would certainly avoid the fights between state and local governments that have characterized California housing politics. But it would also mean that NIMBY municipalities that don't want new housing wouldn't have to allow it.

No one said reform is easy.