SOUTH PORTLAND — The Planning Board on Tuesday rejected a zone change that would have allowed 59 units of age-restricted housing to be built in a wooded area southeast of Wilkinson Woods.

The unanimous board vote, however, is only a recommendation to the City Council, which is expected to take up the request in the coming weeks. 

JDR Trust II sought to rezone about 17 acres of undeveloped land in the Nonesuch River Watershed between Sunset Park and the Scarborough Connector.

The project was opposed by dozens of neighborhood residents along with the Conservation Commission and South Portland Land Trust, which has trails planned for the wooded area. An estimated 20,000 square feet of wetland would be impacted by the development.

The land is behind Kingswood Park Condominiums, which was
included in the zoning request, even though its condo association opposed the project.

JDR trustee Steve Berg, the developer who is also president of Alpha Management Co., was seeking the zone change from single-family residential to Residential G, so the company could build 29 townhouse-style condominiums for buyers 55 or older.

The current residential zone would allow JDR to develop the land. However, the zone change would allow a cluster development, maximizing open space. The G zone would allow for up to 142 housing units, even though Berg said he only wants to build 59.

Berg said the project meets a need for more retirement housing, which would also provide diverse housing opportunities called for in the city’s comprehensive plan.

“This was the item identified most – that South Portland lacks this type of housing,” Berg said. “It’s a good infill project for the area.”

Board members, however, were not convinced the zone request is the best way to move the project forward, because the G zone would greatly expand the number and type of permitted uses for the properties. Those uses include education facilities, day-care centers, nursing homes, medical offices, funeral homes, churches and telecommunication towers, along with several other special exceptions.

Board member Steve Jocher said the zone change would give too much latitude to future developers, since the project has only been proposed as a conceptual design. Also, nothing would stop JDR from selling the property after getting the change, he said.

“By approving this tonight, we are opening the door to these types of uses,” Jocher said. “The development looks nice and they have certainly put a lot of thought into it, but passing this does not necessarily guarantee that this particular project will indeed occur and that concerns me.”

Meanwhile, a legal battle simmering behind the scenes could boil over if the City Council ignores the Planning Board’s recommendation and approves the zone change.

The issue is whether JDR Trust II has the right, title and interest to develop the wooded land. In the 1970s, both the Kingswood Park parcel and the undeveloped land were owned by the same developer, who received a variance to build the 128-unit Kingswood condos by agreeing to leave the wooded parcel undeveloped.

When the condos were turned over the condominium association, however, easement rights were apparently retained so JDR Trust could still access its wooded lot. Those easements cover the roadways and common areas, which the trust argues include frontage on Main Street needed not only for the project to move forward, but also for the rezoning of the Kingswood parcel.

An attorney representing the Kingswood residents, however, argued in a letter that those easements are not sufficient to allow rezoning or development.

Board member Mark Gandolfo shared those concerns, wondering whether a conditional zone would be more appropriate. Gandolfo questioned whether the effort to rezone both properties was an attempt to get rid of any encumbrances the 1970s variance may have placed on the undeveloped land. 

“When I first read this, that’s what I thought,” Gandolfo said, “No, (the developers) aren’t doing anyone any favors, they’re just looking to help themselves.”

Meanwhile, the residents say the roads are currently too narrow to support the traffic from the development.

Kingswood resident Ruth Basterache said the development would have a “monumental negative impact” on the neighborhood.

“It’s frightening to me and everybody who lives there,” she said.

Resident Barbara Lilly said she was concerned that roads are not wide enough to allow emergency vehicles to respond to the JDR parcel. She predicted emergency access would be needed, especially in a retirement community. 

“It’s going to be a major, major catastrophe,” she said.

Police Chief Edward Googins also expressed concerns about the development’s potential impact on traffic, and water resources staff are concerned about storm-water runoff.

Also, city planners also took an unusual position – issuing a recommendation neither for nor against the zone change.

“Usually, it’s pretty clear to staff if they meet the standards or not,” Planning and Development Director Tex Haeuser said. “In this case, with the Comprehensive Plan not being very clear on this, I was not ready to go beyond a neither for nor against position.”