Former House speaker Ryan Fecteau touted new affordable housing legislation during a tour of a 780-square-foot, two bedroom ADU in Brunswick in March 2022. On Tuesday, South Portland councilors decided to leave the requirement for owner-occupancy as part of its ADU ordinance. Derek Davis / Portland Press Herald

The South Portland City Council decided on Tuesday not to pursue changes to the owner-occupancy requirement to rent accessory dwelling units, or ADUs, in the city.

The council passed ordinances that permitted ADUs to be built on any single-family lots in November 2022 to bring the city in line with state-mandated zoning changes, L.D. 2003, which were to take effect in 2023. At that time, the council included a provision that the property owner must live on the premises if an ADU is to be rented there.

Shortly after the council voted on those amendments, Councilor Linda Cohen requested they have a workshop to reconsider the owner-occupancy requirement. The council decided to forgo a workshop and head straight to a vote in February 2023 as the subject had been discussed throughout the ordinance process. It received initial approval but during a final vote on April 4, 2023, it failed and the owner-occupancy requirement stayed in place.

“After 180 days a councilor can reintroduce a topic, which Councilor Cohen did,” said City Manager Scott Morelli at Tuesday’s workshop. “Tonight, you’re again being asked to consider whether or not you wish to proceed with eliminating the owner-occupancy provision from the ADU regulations.”

One reason some councilors wanted to keep the owner-occupancy requirement in place last year was a fear that, if it were removed, developers could swoop in, buy up single-family properties and build and rent ADUs.

“I brought this forward not because developers and builders were asking me to bring this forward,” Cohen said on Tuesday. “I brought this forward last time and again this time because homeowners asked me to bring it forward because they felt that there were a lot of reasons somebody might have to leave their home but they have an ADU and, because of our owner-occupancy requirement, they would have to kick the people out of the ADU while they were gone.”

Planning Director Milan Nevajda said the argument for the owner-occupancy rule from both councilors and residents in the past was also because it was assumed landlords who live on the property would be more invested in their tenants and lead to fewer complaints from neighbors. He said he has not come across any data that suggests there are fewer complaints, such as noise complaints, when a landlord lives on the property of an ADU rental.

The Planning and Code Enforcement departments have also not come across any complaints relating to the owner-occupancy rule.

“We have more than 150 ADUs in the city,” Nevajda said. “We have not been called on an owner-occupancy concern.”

South Portland resident Alex Anastasoff told the council he owns rental units in South Portland and some other nearby communities and has had complaints lodged against one tenant in his 25 years as a landlord, arguing against the notion that a landlord not living on the property could cause issues.

He is also looking to build an ADU for his son on one of his South Portland properties, he said on Tuesday, but cannot under the current restriction.

“My oldest is getting ready to move out of the house and it’s hard to find inexpensive rent right now, so we were looking at this as a good spot to have him live,” Anastasoff said. “Unfortunately, we didn’t have that option because he wouldn’t be an owner of the building and I wouldn’t be living there.”

The only way to make that plan work would have been to add his son to the deed, Anastasoff said, which would have caused difficulties with taxes and finances.

“Also, when he moves out — because eventually, he’s going to have a family and need something bigger than 800 square feet — we’d have an apartment that’s all built out that we couldn’t let anyone live in,” he said. “It’d have to stay empty, but we’d still be paying taxes on it. Plus the expense of building it, it just wasn’t feasible.”

Removing the owner-occupancy requirement did not receive the support of the majority of councilors. Some of those opposed were concerned on the impact it would have on the housing market which is already unfriendly to buyers.

“If it’s going to be an owner-occupied property, it’s going to be a smaller number (of potential buyers), it’s going to be more affordable,” said Councilor Natalie West. “If it’s viewed as a potential investment opportunity because you could build an ADU and rent both units, the price will be higher.”

However, some councilors said they’d like to see some flexibility when an owner of an ADU needs to be away from their property for an extended period of time.