(from Maine Townsman, May 1991)
By Geoffrey Herman, MMA Paralegal
By December 31,1991, all municipalities in Maine in which there are great ponds or saltwater frontage, rivers, streams, or wetlands must adopt a shoreland zoning ordinance which serves to regulate land use activities in shoreland zones at least as stringently as the DEP's March 1990 Minimum Guidelines for Municipal Shoreland Zoning Ordinances. Failure to adopt such an ordinance by the end of this year could result in the DEP imposing its Guidelines, or even more stringent shoreland regulation, on the municipality. Although the imposition of state regulations on the local level could hardly be considered an ideal situation, it is apparently not that uncommon. According to DEP's Shoreland Zoning Unit, 25% of the municipalities with shoreland zoning ordinances in 1990 were operating under a state-imposed shoreland zoning ordinance.
Maine's 20-year-old shoreland zoning law has evolved according to a fairly typical legislative/regulatory pattern. In 1971, shoreland zoning was mandated by a legislative act of four brief sections of statute taking up less than a page of Maine law. The original shoreland zoning law was completely lacking in guidance. In apparent recognition of that lack of guidance, the DEP was first required in 1973 to develop minimum shoreland guidelines. For about 10 years after that, the specific standards governing shoreland development were found primarily in that regulation rather than in the law. Starting in 1983, some specific shoreland definitions and actual land use standards began to creep into the statutes, and in the last six years the Legislature has very significantly and particularly amended and expanded the shoreland zoning law.
Of all regulated activities in the shoreland zone, perhaps timber harvesting has undergone the most turbulent regulatory history in recent years. For a brief time, by virtue of emergency legislation enacted in 1987, timber harvesting was prohibited throughout the entire Resource Protection district adjacent to great ponds. 1988 legislation relaxed that standard by prohibiting timber harvesting only in the first 75 feet of Resource Protection districts on great ponds. In 1990 the Legislature enacted three separate and different versions of the timber harvesting section of shoreland law (38 MRSA § 439-A(5)). One of those enacted versions now allows timber harvesting after the first 75 feet in Resource Protection districts, but requires reforestation within 2 growing seasons after harvesting.
From the municipal perspective, the constant changes to particular standards in shoreland zoning law create administrative problems. Those statutory changes often override local ordinance provisions, and enforcement responsibilities can become very unclear.
Presently, unless the municipality has already enacted a shoreland ordinance meeting the standards of the 1990 Guidelines, certain provisions in current shoreland zoning law override at least a half dozen provisions in any local shoreland ordinance. The good news is that adoption of a municipal ordinance which meets the standards of the 1990 Guidelines should end that confusion, at least temporarily.
The 1990 Guidelines go beyond simply amending or fine-tuning the shoreland standards established over the last two decades. The new Guidelines will both significantly expand the amount of shoreland zone in every municipality and establish more stringent performance standards for many land use activities within all shoreland zones.
This article will attempt to point out a number of the substantive changes contained in the Guidelines. Before summarizing the substantive changes, however, a few suggestions are offered to facilitate the ordinance development and adoption process on the local level.
Developing Municipal Ordinance From State's Model
The 1990 Guidelines have been written in such a way to facilitate, but not replace, the local ordinance development process. Whether the drafting of the new shoreland zoning ordinance is accomplished by the planning board, planning board staff, an ad hoc "ordinance review committee" or the municipal officers themselves, it is very important that municipalities put some effort into crafting a local ordinance that meets local needs. For a number of reasons, the simple adoption of the state's model is not sufficient.
First, it would be careless for a municipality to adopt a shoreland zoning ordinance which contained standards relating to shoreland zones or shoreland districts which do not exist within the municipality. Municipalities which are nowhere near the ocean, for example, should take care to delete provisions regarding coastal waterbodies.
Another example of the manner in which the generic language of the Guidelines might be fine-tuned is where the model calls for some action by the "municipal officers" or the "municipal legislative body". It might be more meaningful to residents using the ordinance if these references were to the actual political entity in the town or city, such as the "board of selectman" or the "city council", or the "town meeting".
A third example of an overall, nonsubstantive amendment a town might consider concerns the Guidelines' use of the term "great ponds classified GPA." The term "GPA" is a water quality classification term which is applied generally to all great ponds.
The repeated references to the GPA classification in the Guidelines are there merely to distinguish between some river impoundments which are "GPA" great ponds and the few river impoundments which are great ponds, but not GPA classified. Municipalities with no such river impoundmentsor municipalities which intend to apply the same land use standards to all great ponds, whether classified as "GPA" or notare entirely free to delete all references to the GPA classification.
In addition to the non-substantive amendments that should be made to the Guidelines, there are also separate notations throughout the Guidelines which have been inserted only to suggest various options or deviations from the model that the municipality might consider. These notations are distinct and separate from the regulations themselves, and by adopting the Guidelines verbatim, municipality has not adopted the options that are described in those notations. For example, the Guidelines note that certain clustered housing provisions could be included in the local ordinance, but the planning board would not be authorized to permit a clustering of development merely on the authority of that notation. At a minimum, each notation in the Guidelines which suggests a municipal option should be carefully reviewed during the ordinance preparation stage, and then a decision should be made whether to proceed on the suggestion (by developing specific ordinance language) or ignore the suggestion by simply deleting the notation.
Furthermore, as is discussed in more detail below, there is a great deal of room within the minimum requirements of the Guidelines for a town or city to craft a shoreland ordinance which is tailored to the specific needs of the municipality. Not all towns, for example, may want to have a General Development district, and the establishment of such a district is not required by law or regulation. Municipal officials who work with local ordinances on a regular basis also have an interest in coordinating the terms and standards of all local land use regulation as much as possible. For this reason, careful attention should be paid to ordinance definitions, performance standards and administrative procedures to see how the shoreland ordinance can best parallel or integrate with other local regulation, such as the subdivision or site plan review ordinances.
Finally, even though municipalities are required to adopt shoreland regulation which is at least as strict as the 1990 Guidelines, there is ample authority, both in the shoreland zoning law itself (38 MRSA §439-A) and under "home rule" (30-A MRSA § 3001) for a municipality to create shoreland regulation which more vigorously protects surface water resources. Although many municipalities accept the state's minimum regulation as the local maximum, it should not be forgotten that the Guidelines are no more than minimum regulation, and the municipality has every right to enact stricter standards wherever the need arises.
The first step in developing the municipal ordinance is obtaining copies of the 1990 Guidelines. The Guidelines are available in a number of formats. There is the unedited, printed version. There is a printed version which has been edited for inland municipalities which have no tidal waters or coastal wetlands. DEP's Shoreland Zoning Unit can also provide municipalities with the unedited or edited version on either 3.5" or 5.25" IBM compatible computer discs with a variety of word processing software packages or an ASCII format. Municipalities with computer capabilities would probably benefit from having the 1990 Guidelines both in print and on computer disc; the printed version to mark up during the development process, and a version on computer disc to facilitate final editing. In order to obtain copies of the Guidelines in any format, contact: Shoreland Zoning Unit, Land BureauDEP, State House Sta. 17, Augusta, ME 04333. Tel: 289-2111.
There is every reason to encourage public input during the ordinance drafting process. The changes to the law reflected in the Guidelines have both expanded the shoreland areas and sophisticated the regulatory options within shoreland areas in such a way that public education and discussion is crucial to the ordinance development process and successful enactment. Beyond the public policy issue, 30-A MRSA § 4352 requires municipalities to allow the public "adequate opportunity to be heard in the preparation of a zoning ordinance." Therefore, at the very minimum, the ordinance drafters must hold at least one public hearing, once the proposed new shoreland ordinance has been drafted. After such a public hearing, the ordinance should be prepared in its final form and posted for adoption in accordance with 30-A MRSA §3002.
After the legislative body (i.e., the town meeting or city council) has adopted the ordinance, a copy of that ordinance which has been attested and signed by the municipal clerk must be sent to the DEP's Shoreland Zoning Unit for approval. Within 45 days of receiving the adopted municipal ordinance, the DEP will either approve the ordinance by finding it in compliance with the Guidelines, or reject any portion of the ordinance which is less stringent than the minimum regulations and impose the Guidelines. Failure of the DEP to respond within 45 days of submission constitutes approval.
Substantive Changes In Shoreland Zoning Regulation
New Shoreland Zones. The creation of new shoreland area is clearly the most significant difference between the 1990 Guidelines and the previous minimum regulations promulgated by the state. Prior to the 1990 Guidelines, the minimum shoreland area included all land with 250 feet of the high water mark of the ocean or great ponds (i.e., ponds or lakes over 10 acres in surface area), and rivers serving as the watershed for at least 25 square miles. To this list, the Guidelines add all land within 250 feet of coastal wetlands or freshwater wetlands 10 acres or greater in size, and all land within 75 feet of streams. "Streams" are defined as free flowing bodies of water from the outlet of a great pond or the confluence of two perennial streams as depicted on USGS topographic maps (7.5 minute series), until the point where such a waterbody becomes a river. It should be noted here that several standards in the 1990 Guidelines refer to, and apply to, "tributary streams". This reference is to virtually all channelized streams other than the confluent streams just defined, whether mapped or unmapped, intermittent or perennial, but only where such "tributary streams" flow across a shoreland area. The land use standards applying to these "tributary streams" are to be applied in conjunction with the prevailing land use requirements of the shoreland zone in which the tributary stream is located. For example, if a residential structure is being proposed in a shoreland zone adjacent to a great pond, and there is also a small stream flowing through the lot in question, the set back standards in the Guidelines require that the structure would have to be located at least 100 feet from the great pond and also at least 75 feet from the "tributary" stream.
The municipal legislative body is entirely free under both shoreland zoning law and "home rule" authority to expand their shoreland zones beyond these minimum requirements. For example, the adopted ordinance could govern all perennial streams depicted on USGS topo maps, rather than just the confluent streams. A local ordinance could also, for example, sweep in all wetlands over five acres in size rather than 10 acres. An option that is not available to the municipality is to go in the other direction and designate shoreland areas less inclusively than the Guidelines.
Shoreland Districts. Another significant expansion brought about by the 1990 Minimum Guidelines is the addition of three additional shoreland districts. Prior to the 1990 changes, the Minimum Guidelines established three shoreland districts: Resource Protection (where building construction was essentially prohibited); Limited Residential-Recreational (where residential and recreational-related development was allowed, but commercial and industrial development was prohibited); and General Development (where industrial and commercial development was allowed if approved by the local planning board).
The 1990 Minimum Guidelines retain the original three shoreland districts, and authorize the creation of three more districts: Stream Protection (a relatively strictly regulated district extending 75 feet back from the high water mark of all streams); Limited Commercial (a mixed district of light commerce and residential uses where industrial activity is prohibited); and Commercial Fisheries/Maritime Activities (a specialty district designed to enhance and protect shoreland areas already developed by "functionally water-dependent uses", such as working waterfronts).
It should be noted that municipalities are not required to establish all six of the districts authorized by the Guidelines. According to the district establishment criteria contained in the Guidelines, the four development districts are established primarily on the basis of existing development, and where there is no commercial activity in a shoreland area, a municipality is under no obligation to create a commercial district of any kind. In fact, it would be entirely possible under home rule authority for the municipal legislative body to amend the district establishment criteria of the Guidelines in such a way as to prohibit future commercial activity in areas of existing commercial use. No municipality is barred from establishing land use regulations in the shoreland zone which would serve to more effectively protect Maine's water resources from the effects of shoreland development. What would not be possible is for the municipality to adopt a shoreland zoning ordinance which permitted more intensive shoreland development than that allowed by the Guidelines. As an example of this type of limitation, the Guidelines go so far as to expressly prohibit establishing new or expanded General Development districts in shoreland areas adjacent to great ponds or rivers flowing into great ponds.
Minimum Lot Sizes, Set Back, Frontages. The third area of significant change is with regard to the fundamental lot design standards.
The minimum requirements prior to the 1990 Guidelines called for residential lots at least 20,000 square feet in area (10,000 square feet on sanitary sewer systems), structural set backs of at least 75 feet, and shore frontage of at least 100 feet. The 1990 Guidelines call for residential minimum lot sizes of at least 30,000 square feet in tidal shoreland zones and 40,000 square feet (or nearly an acre) in non-tidal shoreland zones. There is no longer any relaxation of minimum lot size for development on sanitary sewer systems. Non-residential structures (i.e., governmental, institutional, commercial or industrial) must be on lots of at least 40,000 square feet in tidal shoreland areas, and 60,000 square feet in non-tidal shoreland zones. Recreational facilities must be on lots of at least 40,000 square feet in both tidal and non-tidal shoreland areas.
Minimum shore frontage requirements have been raised from 100 feet to at least 200 feet, except for residential lots on tidal water, where the minimum frontage required is 150 feet. All non-residential structures (except recreational facilities) must have at least 300 feet of shore frontage in non-tidal shoreland areas.
The minimum set back requirement has been increased from 75 feet in all shoreland zones to 100 feet in zones adjacent to great ponds and rivers flowing into great ponds. The minimum set back requirement remains at 75 feet in shoreland zones adjacent to tidal water, wetlands, and streams, and "tributary streams". One immediate effect of adopting a municipal ordinance which is in compliance with the Guidelines will be to instantaneously make non-conforming all structures built between 75 and 100 feet of great ponds or rivers flowing to great ponds, as was generally permitted until the implementation of the Guidelines. Previously approved shoreland lots less than one acre in size will also become instantly non-conforming.
Expansion of Non-conforming Structures. One area in which the Guidelines clearly improve on the minimum regulation which preceded them is with regard to the clarification of issues regarding non-conformance. The previous minimum regulations tended to consider the separate types of non-conformance all in the context of a non-conforming use category. The Guidelines carefully unpack the issue of non-conformance into its three categories: non-conforming lots (i.e., narrow, undersized or underfrontage lots), non-conforming uses (i.e., a pre-existing use of buildings or land which is not allowed in a particular shoreland district by the land use table), and non-conforming structures (i.e., a building which does not meet set back standards or exceeds height or lot coverage standards). By carefully distinguishing between types of non-conformance, the Guidelines more clearly and effectively deal with the associated non-conformance issues, such as transfer and merging of non-conforming lots, or transfer and expansion of non-conforming uses.
Because the adoption of larger set back requirements will create thousands more non-conforming structures than presently exist, municipalities should become familiar with the Guidelines' standard regarding expansions of non-conforming structures. The previous minimum regulation governing the expansion of non-conforming structures was quite vague. It has long been the case that structures which do not meet the required set back could not be expanded toward the water, but to what degree such structures could be otherwise expanded was unclear. The Guidelines expressly address that issue by continuing to prohibit toward-the-water expansion of any structure which does not conform to the prevailing set back requirement. In addition, the Guidelines restrict all expansion of that portion of any structure which exists within the set back area to less than 30%, by volume or floor space, for the life of the structure. It should be emphasized that under the standard in the Guidelines it is only the portion of the structure that lies within the set back which is restricted by the 30% limitation. The portion of the structure which is beyond the prevailing set back is not controlled by the 30% expansion limitation, although expansion of that part of the structure may be controlled by other limitations, such as lot coverage limits, property line or road set back requirements, or height limitations.
Changes to Performance Standards. The 1990 Guidelines call for many changes to the performance standards contained within a municipal shoreland zoning ordinance. A summary of some of those changes is provided here
· Agriculture. There are three major additions to the performance standards regarding agricultural activity. First, no manure stockpiling or storage areas may be established within 100 feet of great ponds or rivers flowing to great ponds, or 75 feet of all other protected waterbodies. Manure storage areas already existing within the set back area must be moved out of the set back area within five years, or constructed or modified in such a way as to produce no effluent discharge.
The tilling-of-soil standard previously prohibited tillage within 50 feet of all protected waterbodies, and required all other tillage within the shoreland area to be accomplished in accordance with a conservation plan approved by the Soil Conservation Service. The 1990 Guidelines now prohibit tillage within 100 feet of great ponds or rivers flowing to great ponds, 75 feet of streams, or 25 feet of tributary streams and wetlands. Tillage operations existing as of the effective date of the new municipal ordinance are "grandfathered" from this standard, as long as there is a conservation plan for any tillage operation over 40,000 square feet which encroaches into the shoreland area.
Finally, no new livestock pastures may be created within 100 feet of great ponds, 75 feet of the ocean, rivers and streams, or 25 feet of tributary streams and wetlands. As is the case with the tilling-of-soil standard, livestock pastures in existence as of the effective date of the new municipal ordinance are "grandfathered" as long as such pasturing is accomplished in accordance with a conservation plan.
· Clearing of Vegetation for Development. In the past there was some confusion as to the scope of the clearing-of-vegetation standard, and the manner in which the "clearing" standard coordinated with the timber harvesting standards. Accordingly, the clearing of vegetation standards in the 1990 Guidelines have been clarified as well as significantly expanded. The previous clearing standard allowed for the creation of cleared openings to the water provided that such openings were no more than 30 feet in width for any 100 feet of shoreland. The 1990 Guidelines establish much stricter clearing standards by requiring the preservation of a vegetative buffer strip adjacent to all shoreland areas.
First, the Guidelines clarify that there may be no removal of vegetation (except safety hazards) within the first 75 feet of any Resource Protection district on a great pond. Beyond this 75 feet, no-clearing zone, all vegetation removal in Resource Protection zones is limited to the minimum amount necessary for uses expressly authorized in such zones.
For all shoreland zones (and in addition to the stricter clearing limitation in the Resource Protection zone) the 1990 Guidelines require the preservation of a vegetative buffer strip within 100 feet of great ponds or rivers flowing to great ponds, and within 75 feet of all other protected waterbodies (i.e., the ocean, streams, tributary streams, wetlands). Within this buffer strip, no openings in the forest canopy greater than 250 square feet may be created. (Footpaths to the water are allowed, provided such paths do not create a cleared line of sight to the water. Footpaths to great ponds or rivers/streams flowing to great ponds must be no wider than 6 feet. Footpaths to other waterbodies must be no wider than 10 feet.)
Selective cutting of trees within the buffer strip (except, of course, for the first 75 feet in great pond Resource Protection zones) is allowed provided a "well distributed stand of trees and other vegetation" is maintained. To maintain such a "well distributed" vegetative buffer, a point system has been developed. To apply the rating system, the diameter of the trees 4.5 feet from the ground (a.k.a., diameter at breast height, or d.b.h.) in each 25 foot square area (i.e., 625 square feet) of the buffer strip would be measured. To retain the status of a "well distributed stand of trees" for properties adjacent to great ponds or river/streams flowing to great ponds, each 625 square feet of the buffer strip would have to contain at least 12 trees between 2" and 4" d.b.h. or 6 trees between 4"andl2" d.b.h.or3 trees over l2" d.b.h., or some combination thereof. For properties adjacent to all other protected waterbodies, the "well distributed stand of trees" standard is somewhat relaxed.
Ground cover and vegetation under 3 feet in height must not be removed in the buffer strip adjacent to great ponds or rivers or streams flowing into great ponds, except for approved development or a footpath.
Beyond the vegetative buffer strip but within the shoreland zone, the clearing standards are similar to the Timber Harvesting Standards, but cleared openings are limited to 25% of the lot or 10,000 square feet, whichever is greater.
· Timber Harvesting. Despite the fluctuation of specific timber harvesting standards in Resource Protection districts, the general timber harvesting standard remains essentially unchanged from earlier minimum standards, i.e., no more than 40% of tree volume can be removed from shoreland areas in any 10-year period. One clarification is that the 40% standard applies only to all trees within the shoreland lot which are 4" d.b.h. or greater.
In coordination with the clearing of vegetation standards, the timber harvesting standards also prohibit timber harvesting within the first 75 feet of Resource Protection zones adjacent to great ponds. Furthermore, the cleared opening standard and the "well distributed stand of trees" standard, as discussed immediately above, also govern timber harvesting activities within the vegetative buffer strip in all other shoreland districts.
Beyond the vegetative buffer strip, but within the shoreland zone, the Guidelines prohibit single clear cuts larger than 10,000 square feet, which represents a slight relaxation of the previous clearcutting standard of 7,500 square feet. The Guidelines also increase the width of the unscarified vegetative buffer strip between skid roads or loading yards and protected waterbodies. Under the previous minimum regulation, the width of that particular buffer could have been as narrow as 25 feet. Under the Guidelines, such a buffer must be at least 75 feet where the average slope of the land is 10% or less. 20 additional feet of unscarified buffer strip is required for every additional 10% increase in slope.
Appeals. The Guidelines have also slightly changed the model language regarding administrative appeals in a manner the municipality may wish to reconsider. The Guidelines provide a right to an administrative appeal where there is an alleged error "in any order, requirement, decision, or determination made by, or failure to act by, the Code Enforcement Officer or Planning Board in the enforcement or administration of this Ordinance." When a right to an administrative appeal is created for "enforcement" decisions made by the CEO, unnecessary problems can be created when a municipality attempts to take a person to court for violating a local land use regulation. To avoid these problems, a municipality may wish to delete the reference to "enforcement" decisions, or even expressly state the fact that "enforcement decisions" made by municipal officials may not be taken to the Board of Appeals. For more background and information regarding this question, refer to Joe Wathen's legal note in this issue of the TOWNSMAN.
The foregoing does not even approach a complete summary of the changes, clarifications and expansions to shoreland zoning regulation which have been ushered in with the promulgation of the 1990 Guidelines. As a body of land use regulation, the fundamental changes are: 1) the expansion of the shoreland areas to include streams and wetlands; 2) the addition of three more shoreland districts which should be considered as tools by which a municipality might more flexibly plan for and regulate shoreland development; 3) more precise and more stringent performance standards governing most land use activities in all shoreland districts; and 4) the creation of a substantial amount of non-conformity by virtue of the more stringent lot size and set back standards.
If the municipal shoreland zoning ordinance is not presently compliant with the standards of the state's minimum Guidelines, a new or amended ordinance must be adopted by the municipality before December 31, 1991. If a minimally conforming ordinance is not adopted by that date, the DEP is authorized to impose its Guidelines on the municipality.
For obvious reasons, it is often difficult to create local enthusiasm for municipal regulation which comes down as a mandate from the state. On the other hand, the goals and the purpose of the shoreland zoning law are shared by almost everyone. It is also clear that public education is the most effective way to encourage and obtain local compliance with prevailing land use standards. It is not only the various municipal officials who must get quickly up to speed with regard to the new shoreland standards, but so also must the entire regulated population have an opportunity to become familiar with the revised regulation. To that end, perhaps the process by which the state's 1990 Guidelines become local law can be used to the municipal advantage. By encouraging a great deal of public participation in the ordinance development process, and by vigorously exploring the many regulatory options that remain available even within the limitations of the minimum Guidelines, it may still be possible to develop a sense of local ownership of the municipality's shoreland regulation. It is doubtful that a healthy level of local investment in municipal shoreland protection will be engendered the perfunctory adoption of the state's Guidelines