Shoreland Zoning Update

(from Maine Townsman, July 2009)
By Douglas Rooks, Freelance Writer

A significant overhaul of the state’s shoreland zoning rules requires all towns and cities to re-adopt their local ordinance by July 1 of this year. It’s a process that has gone smoothly in some towns, but has prompted questions and some resistance in others.

The changes in the Mandatory Shoreland Zoning Act, a law first adopted in 1971, were contained in legislation passed in 2006, with subsequent rulemaking by the Department of Environmental Protection (DEP), which is charged with enforcement. The 2006 law originally specified that the re-adoption of a municipal ordinance be completed by 2008, but the first round of wetlands maps issued by the state proved to be inadequate, and the deadline was extended another year.

As of the end of June, at least 175 municipalities had completed and submitted new ordinances, and 140 of them had been approved by DEP. Still, about 450 municipalities are required to maintain shoreland zoning rules; any town with significant wetlands, coastal frontage, rivers and streams, or great ponds within its boundaries is affected, which in Maine is just about everyone, since there are 492 organized municipalities overall.

Even small towns without zoning or even a planning board are required to zone the shoreland areas, a system that is possibly unique in Maine planning law – a broad state mandate, but relying on local responsibility for carrying it out.

The thinking behind the latest amendments was that it was time for a housecleaning, according to Rich Baker, DEP’s shoreland zoning coordinator. The much-amended ordinances were not always easy to read and follow, and lawmakers decided that a uniform format should make things easier at the local level – eventually.

In terms of substantive changes, there are several that will affect how shoreland zoning works in most communities. The most controversial, and most debated at town meetings this year, lies in the definitions and mapping of critical or high-value wetland habitat.

Baker explains that some of the required changes resulted from the need to make shoreland zoning consistent with the Natural Resources Protection Act, which had somewhat different definitions of wetlands and could be seen, in some cases, as conflicting with the local shoreland ordinances.

Wetlands Scrutiny

The change that towns noticed the most was that the increase in most, though not all, shoreland areas, is the proportion of wetland falling into resource protection zones, rather than low-density residential or general development areas.

Wetlands, particularly along the coast, are considered key incubators of fish, amphibians, and bird life, with research over the last three decades documenting the negative effects of building in sensitive areas.

Further inland, the state has required towns to begin mapping vernal pools – seasonally wet areas that are also important to amphibian and reptile reproduction. These are species that, as one wildlife expert put it, provide the “grocery store” for the larger birds and mammals that are more often noticed by humans, from bald eagles to whitetail deer.

While forestry and farming are allowed in resource protection zones, new construction of residential and commercial structures is limited. Particularly in coastal areas, there were claims by property owners that valuable shorefront lots were being rendered unbuildable, severely reducing their value.

Baker said that this is not often the case, and that the new rules specifically allow for changes in existing non-conforming structures. If a camp without a permanent foundation is converted to year-round use, for instance, the state requires that the foundation be located only “as far as practical” from a protected wetland. If various setbacks do make it impractical to site a house, landowners are guaranteed the right to build one dwelling on their property, “although at a size that might not be what they originally wanted,” Baker said – a maximum of 1,500 square feet.

Another new feature concerns municipalities with coastal bluffs, which have been newly mapped by the Department of Conservation’s Bureau of Geology, from Kittery as far as Roque Bluffs (funding ran out for the final segment in Washington County.). Current setbacks are measured from the shoreline itself, without considering the distance from the edge of the bluff to the shore. The new standard instead measures the setback from the edge of the bluff. The rule was prompted by a landslide that destroyed homes in Rockland that were sited legally under the law, but were too close to the water to escape undermining by wave action.

Timber Harvesting Trigger

While less controversial than the wetlands rules, shoreland zoning now includes numerous changes to timber harvesting restrictions, which limit how much cutting landowners can do along lakes, ponds, streams, and coastal stretches, and in the resource protection zones where wetlands have been mapped.

The forestry standards allow landowners and towns new choices in applying local regulations, and also allow municipalities to adopt new state standards, with the understanding that the state will provide expertise in enforcing the local ordinance.

Under the old forestry standards, landowners could remove only 40% of standing timber over a 10-year period within 250 feet of designated rivers, lakes and wetlands, and within 75 feet of certain streams. A new alternative standard requires leaving 60 square feet of basal area (measured at the base of trees four inches and larger) per acre. Land within the shoreland zone but not in wetlands can include clearcuts of up to 14,000 square feet, an increase from the previous limit of 10,000 square feet.

Alternatively, the state has written forest standards that municipalities can adopt in the local ordinances. If 75% of shoreland zoning ordinances include the state standards, they will go into effect. Baker said that of the plans completed so far, 80% include the state standards, which if the pattern continues would trigger state oversight and enforcement assistance.

“That’s the part that has been debated the most at the local level,” he said. “Many towns want the state’s help, since they don’t have experience in applying harvesting rules themselves.”

MMA’s Jeff Austin said that municipalities suggested and support the “trigger” mechanism instead of the state simply mandating new standards. This way, he said, towns that prefer to do so can keep their existing standards, though they will not get any state enforcement help.

Municipalities that use the state standards can also opt to enforce them jointly with the state, or rely on state enforcement alone. The 75% figure was set so that if only a small number of towns used the standards, the state wouldn’t be obligated to gear up for enforcement.

“We’d like to see this as a model of a more collaborative approach with the state on similar planning and zoning issues,” Austin said.

Also of interest for lakefront and oceanfront landowners are revised rules about clearing for views and access to the water. Originally, leaving a few large trees was considered sufficient, which created an unnatural effect and meant there were no replacements for older trees damaged or killed. Now, saplings must be maintained in the buffer, and the width of the permitted “meandering paths” to the shore – so designed to contain runoff and prevent erosion – have been reduced from 10 feet to six feet.

Rough vs. Smooth

As might be expected, with several hundred towns and cities debating ordinance changes, there have been some strikingly different results. At the Arrowsic town meeting, the shoreland ordinance provoked one of the longest debates of the evening on June 17, with several speakers objecting that their previously permitted structures were now non-conforming under the new rules. Ultimately, though, voters adopted the ordinance, 48-14.

In neighboring Georgetown, a special town meeting approved shoreland rules meeting the state’s requirements, but rejected, at the annual town meeting, additional requirements that would have broadened protected areas around small streams.

By contrast, the Falmouth Town Council swiftly adopted a new ordinance that was crafted by the Long Range Planning Advisory Committee. The committee met five times, from October 2008 to April of this year, to complete its shoreland zoning work, which includes extended protection to the small streams encouraged but not required by the state rules.

Rich Baker said the stream rules were a compromise, recognizing research that has found that timber harvesting around even minor perennial streams can raise water temperatures and render them uninhabitable for many species.

Planning Director Theo Holtwijk said it’s no secret why such rules were more popular in Falmouth than in some other towns. “This has long been an environmentally conscious community,” he said. When it comes to going the extra mile to protect habitat and natural resources, Falmouth is usually out front, he said.

The town is also conducting a separate effort to make sure all its natural resource rules are consistent with all state and federal rules, which should make the ordinance easier to apply.

That doesn’t mean that the ordinance just adds more restrictions, though, he said. Provisions in the state rules that allow for special exceptions, which unlike variances do not require a showing of hardship, may allow building on some lots that would otherwise have been prohibited.

Holtwijk said other towns could benefit from consulting the regional DEP representative about their ordinances before creating the final version. Going over the maps together, he said, allowed for questions and answers that improved the final product, he said.

Blue Hill Queries Maps

Up the coast on the Blue Hill peninsula, Jim Schatz has his doubts about the new rules. He’s a long-time selectman in Blue Hill, and a three-term state representative for District 37, which also includes Brooksville, Castine, Penobscot, Sedgwick and Surry.

Of those six towns, only Brooksville was expected to have an ordinance in place by July 1 that meets the state standards. The biggest problem, Schatz said, is that the aerial maps the state provided are difficult to coordinate with tax maps that delineate property boundaries. This makes it difficult to determine just how the setbacks and zones apply to a specific parcel.

He said that maps “are too generic to interface well with our tax maps.” Based on this information, “It’s hard to say in some cases whether a changing in zoning is appropriate or not.”

Part of the problem, as he sees it, is that the state’s maps, prepared by the Department of Inland Fisheries and Wildlife, were based on photos taken during the temperate months. Structures already within the shoreland zone are sometimes obscured.

Schatz said that state regulators may be more used to crafting land use restrictions in the unorganized territories, where lots sizes are much larger and there are relatively few landowners. “In our shoreland zone, there may be hundreds of landowners, many of them counting on a retirement home or subdividing their property.”

He’s not convinced that the new local ordinances will be easier to apply than the old ones. “I don’t know what they were thinking when they took this approach, but it isn’t working well,” he said. “If you want maximum protection of the resource, I guess you’re happy. Otherwise, you’re definitely not happy.”

Schatz met with DEP representatives and other legislators in June, and emerged with the conclusion that a legislative working group should be convened to study the results of the shoreland zoning overhaul, and possibly recommend new legislative action.

At DEP, Rich Baker said that updating the previous wetland maps, which date from 1990, was essential to the new effort. The earlier maps, which are still being used by many towns, have a scale of 1-2000, and won’t definitively determine how much of each property is in the resource protection zone. That much hasn’t changed, he said.

“The point is that when you start a project, you have to find the wetland and measure 250 feet back,” he said. Trying to offer advance assurance to each landowner who may build in the future may not be possible, he added.

Shoreland Zoning, plus

In Bowdoinham, shoreland zoning revisions became part of a larger effort to overhaul planning rules, undertaken under Bowdinham’s first town planner, Michelle Briand, who was hired two years ago.

A Land Use Planning Committee (LUPC) was formed to review 10 ordinances already in effect that dealt with subdivisions and shoreland zoning. The town rules were a hodgepodge, Briand said, and were hard for townspeople to understand and difficult to administer. “We used MMA’s legal assistance line a lot,” she said.

The LUPC came up with a single comprehensive ordinance that included shoreland zoning, but when it went to public hearing it proved too big a change for many townspeople’s taste. Included were the first zoning rules separating commercial and residential development, as well as shoreland provisions that would have afforded protection to the smaller perennial streams.

Both of those sections were ultimately removed, and the amended ordinance was adopted by town meeting on June 10. Briand said the LUPC decided to go ahead with a single ordinance anyway, using the sections that raised fewer objections. In addition to shoreland zoning provisions, the ordinance includes subdivision rules and site review planning, as well as modified road standards.

While the wetland maps prompted much discussion, they were ultimately adopted. “The state doesn’t leave much of a choice,” Briand said. A remaining question is how the town will assess property whose value may have been affected by the new rules, she said.

Finishing Up

Baker says that the process of completing the shoreland zoning revisions “has gone slower than we hoped.” He still hears a lot more questions from towns than outright resistance, though some communities, such as Farmington, have rejected proposed ordinances.

Since so many towns have their annual meetings in June, and DEP has 45 days to review the new ordinances, things will be busy into the summer, he predicted. DEP can approve, approve with conditions, or reject the ordinances being submitted.

“We rarely reject an ordinance outright,” he said. “Most of the time we can work with the town, and get things back in line.”

While he concedes that shoreland zoning may lack the precision involved in measuring road widths and boundary lines, that doesn’t mean it’s purpose is not important. “The Legislature made these changes because there are resources that need protection,” he said, “and it decided this was the best way to make sure that happens.”

What Comes Next

Baker said that for towns that do not submit plans or where voters have rejected them, the state will begin drawing up plans based on the medium- and high-value wetland maps that will then become the governing ordinance in those towns.

“We’ll probably work on those in batches of 10, but only after we’ve reviewed all the plans that come in,” he said. As of early July, there were still two or three of those a day.

Baker said that towns or cities that continue to work on plans, even though the July 1 deadline has passed, won’t see early enforcement action. Another reason it will take time is that the state, like the towns, must notify landowners whose properties have been newly assigned to the resource protection zone.

Under the old regime, 56 of the 450 municipalities required to do shoreland zoning had state-imposed plans. With so many plans still outstanding, it is impossible to say whether there will be more or fewer under the new standards.

“We recognize when towns are working in good faith,” Baker said, and added that the process works better when municipalities prepare their own ordinances.

 

Douglas Rooks is a freelance writer from West Gardiner and regular contributor to the Townsman.