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February 7, 2005

The problems of progress | As its supply of buildable land declines, Scarborough continues to grapple with fast-paced residential growth

By Sara Donnelly
Along the tree-lined Black Point Road in Scarborough, just blocks away from the strip malls and chain retailers of the town's urban center, sits a 52-acre parcel of land that some town officials hope will become the new definition of smart residential development here, helping the town fulfill smart growth tenets laid out in its comprehensive plan nearly a decade ago.

Developer Kerry Anderson of KDA Development in Scarborough has proposed a 222-unit development for the site, which he owns. The project would include a mix of single- and multi-family houses and townhouses arranged on a grid pattern of interconnected streets dotted with parks and open space. The project, which is as yet unnamed, cleared its first major hurdle in late January, when the town council approved a zoning change that would allow Anderson to develop the property more densely than its original zoning required.

Anderson did not respond to repeated requests for an interview for this story. But his architect, David Spillaine of Goody, Clancy & Associates in Boston, says this type of development, which is commonly referred to as a "traditional neighborhood" development, has been popular since the mid-1990s in growing towns and cities in nearly every corner of the country, except the region where the model came from in the first place ˆ— New England. Only recently, says Spillaine, have New England communities looked to the old-fashioned designs of walkable neighborhoods to curb modern-day sprawl.

"There's been more interest [in New England] in the past three to five years as communities became interested in promoting more compact development," says Spillaine, who also is designing a traditional neighborhood development in Concord, N.H. He says Scarborough's comprehensive plan, which was written after a state law mandating such plans passed in the late 1980s, specifically encourages development in the traditional neighborhood style. "So, if you consider the comprehensive plan, [traditional neighborhood development] is an idea that's been around in Scarborough for more than 10 years."

Critics say, however, that there's a disconnect between the ideals municipalities put forth in their comprehensive plans and the reality of what, and where, they allow developers to build. With the 2003 debate over ˆ— and, ultimately, defeat of ˆ— ALC Development's Dunstan Crossing project, which like Anderson's proposal would have included a mix of housing styles in a walkable neighborhood with plenty of open space, Scarborough's struggle with residential growth just happens to be the most visible.

Though Scarborough's proximity to Portland makes it an attractive target for homebuyers, one developer who's had to wrangle with the restrictions of the town's growth management ordinance says it was so costly and time consuming she wouldn't do it again. Theresa Desfosses owns the Hillcrest Retirement Community, a mobile home community along Route One that caters to residents 55 and over. Last month, Desfosses received final approval to add 175 new affordable mobile housing units to vacant acreage at Hillcrest after two-and-a-half years of negotiations with town officials. Under the annual building permit limit established by the town's growth-management ordinance, Desfosses must construct her new units in stages over the next four years.

Desfosses says she originally planned to spend $100,000 - $150,000 on engineering and legal fees related to the expansion, but that after more than two years mired in the proposal stage, these expenses have more than doubled to $310,000. Desfosses says the town council's reception to her plans was unnecessarily slow and frustrating. "It was cumbersome and expensive," she says. "My family's owned the [Hillcrest Retirement Community] land for 60 years but if I didn't own land in Scarborough, I wouldn't be in business here. What they put people through to develop here is incredible. I've never been treated so rudely in my life."

Jeffrey Messer, chair of the Scarborough Town Council, says Desfosses' project was held up not because of any animosity from the town towards development, but because of zoning and logistical snags specific to her request. As for the growth management ordinance, Messer says its practical application has been a work in progress since it was first discussed in 2000. "We're on the front edge of the train, the cutting edge," says Messer. "We've had to really have a vision of the future ˆ— what's good for the community, what's legally defensible, what's fair to developers."

Putting the brakes on
Scarborough, a Portland suburb with an estimated population of 19,044 in 2004, became the fastest growing community in the state during the 1990s, when the number of houses in the town increased by nearly 35%, from 5,391 in 1990 to 7,233 in 2000, according to a study conducted by the Scarborough Planning Department. And Scarborough has only continued to grow in the new millennium, ending 2004 with an estimated 8,045 housing units and projecting roughly 1,000 more by 2015.

The town adopted a growth-management ordinance in February 2001 to regulate the fever pitch of growth, which had peaked with about 200 new units built in 2000. According to current Town Manager Ron Owens, the increased number of residents put a strain on the schools in particular, which experienced seven or eight years with an average increase in enrollment of 100 students per year. "[School budget] is your big gorilla," he says. "That's what drives your costs more than anything."

Since its adoption, the growth-management ordinance has been amended four times, most recently last November, and in January a provision restricting the number of affordable housing and senior housing permits per year was incorporated into the total cap of 135 units. Since the ordinance's inception, the cap only has been met once, in part due to the sluggish economy and increase in cost of land in town, Owens says. In addition, impact fees for all new residential properties were added to the ordinance in 2002 to offset the cost of new students entering the town's schools. The comprehensive plan, which details broader goals for the town's improvement like land use and public transportation, currently is being amended by an independent committee of town representatives, residents and business owners.

Growth ordinances like Scarborough's have become common in Maine, says State Land Use Program Director Matt Nazar. Nazar estimates about 25 cities and towns in the state have growth caps, including the majority of Maine's most dynamic locales like Lewiston, Auburn and Freeport. According to James Whelan, president of the Maine Real Estate and Development Association, growth caps can be a boon rather than a deterrent for developers. "It's a question of how it's set up and applied," says Whelan. "If it's fair, balanced, and even-handed, that's one of the ways to reduce uncertainty in development projects."

Alan Caron, president of the Yarmouth-based anti-sprawl advocacy group GrowSmart Maine, lists Scarborough with towns like Brunswick, Freeport, and Camden as having some of the best smart growth planning in the state. Caron is concerned, however, that Scarborough, like many other Maine towns, has not updated its zoning regulations to allow the smart growth tenets detailed in its growth-management ordinance and comprehensive plan to work. For this reason, Caron and GrowSmart Maine have joined ALC Development Corp., the developer of the failed Dunstan Crossing project, as "friends of the court" in a lawsuit against Scarborough. (See "A matter of compliance," p. 20.)

Most towns in Maine have not rezoned according to their comprehensive plans, says Caron. "This is really the test case to see if the [comprehensive plan] law has strength or not."

Smart growth or sprawl?
Anderson's proposal, of course, bears a considerable resemblance to Dunstan Crossing, which was to include 397 units on 150 acres, divided by a grid system of walkable roads and parks. Although the town council approved the zoning change necessary for the project to go forward, residents opposed to it gathered enough signatures to force a special town-wide vote in July 2003. Voters rejected the zoning change by a ratio of nearly four to one.

Council chair Messer was disappointed by the referendum's results. But he says he is not concerned Anderson's plan will meet with similar resistance from the town residents, even though some residents have raised questions about the development's impact on traffic in the area. Messer says Anderson's project is smaller than the Dunstan Crossing proposal by more than 100 units and will exist on land already zoned for residential use (Dunstan was zoned for farming).

If Anderson's plan receives clearance from the planning department ˆ— which Owens estimates will take about three months after Anderson submits his proposal, which had not occurred at press time ˆ— it will take at least seven to eight years to complete because of the annual building permit cap, according to Owens. As for whether the growth management ordinance has proven to be a deterrent to other developers, Owens says the tide of interested developers has slowed to a manageable scale for the moment, but he believes there are many contributing factors beyond the ordinance itself. "It's a combination of many things ˆ— price of land, the growth management ordinance. The available developable land in urban areas is almost nonexistent," he says. "What the growth management ordinance has done is it has allowed us to manage growth to a pace with our ability to provide services to an increasing population."

Messer, who has served on the Scarborough Town Council since 1996, concurs. "We are trying to strike a balance as best we can," he says of the council. He adds that figuring out what's best for the town's growth often means both builders and neighbors have to sacrifice a little. "If everybody's a little ticked off ˆ— if the developer's a little ticked off and the residents are a little ticked ˆ— then you probably are where you need to be."

A matter of compliance

Alan Caron, president of Yarmouth-based GrowSmart Maine, hopes a lawsuit pending against the town of Scarborough will highlight what he believes is a common failure by Maine's municipalities to create smart growth zoning.

Last July, three groups filed a brief in Cumberland County Superior Court in support of the lawsuit between the ALC Development Corp., which proposed the Dunstan Crossing project, and the town. The three groups ˆ— GrowSmart Maine, the Conservation Law Foundation and the Maine Real Estate and Development Association ˆ— contend that the town violated the state's Growth Management Act by failing to enact zoning in the Dunstan area consistent with goals stated in the town's comprehensive plan, which calls for "reasonable residential density" and "walkability" in a village district.

The lawsuit, which currently is under consideration by a superior court justice, contends that the improper zoning opened the door for the citizens' referendum that eventually sunk the project. "If the comprehensive plans aren't going to mean anything," says Caron, "then we have to get rid of them."

Caron says many municipalities cite what he believes are responsible growth management policies in their comprehensive plans. The problem, he says, is that most towns haven't rezoned to allow smart growth rules to take effect; he believes this allows planning boards statewide to pick and choose which projects they feel warrant rezoning. "The point is, you can't say all the right things in a comprehensive plan and then decide on a case-by-case basis which things reflect the comprehensive plan," Caron says. "Zoning isn't supposed to be a matter of how you feel today, it's really a set of rules you lay out so everyone knows what the rules are. It shouldn't be arbitrary; that's not really how laws are supposed to operate."

But Scarborough Town Manger Ron Owens says rezoning is not as simple as Caron implies. The comprehensive plan "is not a mandate, it's a set of hopes and dreams for the future," says Owens. "When implementing it, you have to consider the political climate."

Owens says the town had tried a decade before the Dunstan Crossing project to rezone the Dunstan area for dense residential use, but met with resistance from residents even without a development looming. "As long as we reside in a democracy, [rezoning decisions] don't just reside in the hands of officials," he says. "Citizens have a right under our charter ˆ— if they don't agree with something, they have a right to overturn it."

Owens says the town has successfully created some provisions to encourage village-style developments like those lauded in the comprehensive plan. In December, the council adopted a new zoning provision called the "Traditional Neighborhood Overlay," which allows the planning board to make certain residentially zoned areas more densely developed. The new provision seems destined to be put to use quickly: The Scarborough Planning Board soon will decide whether to apply it to Kerry Anderson's proposed 222-unit subdivision on Black Point Road, the largest traditional neighborhood development project to be presented to the town since Dunstan's demise.

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