AUBURN — Controversial ordinance changes to Auburn’s agricultural zone are heading back to the City Council, with recommendations from the Planning Board and a list of concerns from a law firm.

The council’s review and eventual vote on the ordinance, however, may not occur until the fall, when an advisory board on agriculture could be in place, according to a city staff member.

Modernizing the city’s Agriculture and Resource Protection zone has been pushed for years, but many in Auburn, including those who live on the land that accounts for nearly half the city, do not agree on how.

The amended zoning language, coming out of Mayor Jason Levesque’s committee on agriculture earlier this year, is intended to loosen the zone’s historically strict rules, making it easier for people to build homes on land they own while encouraging small agricultural operations.

Since the 1960s, zoning laws have stipulated that in order to build a new home in the zone, a property owner must own at least 10 acres and earn 50 percent of household income from agriculture or forestry.

The proposal would lower the standards to allow anyone with at least 3 acres to build a home, and would also amend the definition of a farmer and ease the current income standard.

Throughout the spring, members of the Planning Board and Conservation Commission went through the proposed ordinance changes section by section, hosting multiple well-attended public meetings.

During the same time, the law firm Bernstein Shur was consulted by city staff and the Planning Board to review the proposal, which Planning Board Chairman Evan Cyr said is “often standard procedure when crafting new ordinances or when making substantial changes to existing ordinances.”

A memo sent this week from lawyer Mary Costigan of Bernstein Shur lays out a number of concerns with the proposal, including an opinion that “the attempt to limit the ability to subdivide land is legally problematic.”

She said the amendments to the section of the ordinance on subdividing land “attempt to limit the division of land if it is for a particular purpose. The reason this is problematic is that the proposed use for the land is not a review criterion in subdivision.”

In the proposed ordinance, a property is considered a “farm” if it meets at least two of five criteria, two of which are based on Internal Revenue Service reporting.

Costigan also lists issues with the attempt to modify the zone’s minimum lot area and the income requirements based on IRS data.

“Broadly, any income-based requirements in land use codes are difficult to administer,” she said, questioning whether property owners would be required to report annually. “What happens if they
have a year when they do not meet the income requirements?”

At the same time, the Planning Board has been wrapping up its final recommendations to the council, and shares similar concerns. According to a letter to the council, the Planning Board believes that the section of the ordinance defining a farm by using five criteria “does not meet” the goals of the city’s Comprehensive Plan.

Among other recommendations listed in the letter, the Planning Board also recommended that the council “strongly consider” putting the proposed argicultural commission or advisory board in place “prior to making any decisions on text changes.”

According to Cyr, the Planning Board’s letter of recommendations was drafted prior to receiving the finding from legal counsel.

On Tuesday, the board’s final recommendation was amended to include a statement reading, “The concerns expressed by Bernstein Shur should be of first consideration in proceeding with this amendment.”

City Planner Audrey Knight said Wednesday the Conservation Commission is expected to vote Tuesday on its final recommendations.

Knight said due to the summer schedules of elected officials and staff, the council might not take up the ordinance until the fall, by which time an agricultural advisory committee would be assembled.

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