Understanding shoreland zoning training and certification manual

[From the U.S. Government Printing Office, www.gpo.gov]

cz100

Shoreland Zoning

Municipal Code
Enforcement Officers

I Training and Certification Manual

Office Of Comprehensive Planning

Training and Certification

HT Maine Department of
168 Economic and Community Development
.M2
B66
1990

UNDERSTANDING SHORELAND ZONING

prepared by:

Unda J. Boothby Planner
CEO Training & 6ertification
Office of Comprehensive Planning
Augusta, Maine

prepared for:

CEO Training and Certification Program
Daniel W. Soule, Coordinator
Office of Comprehensive Planning
Department of Economic and Community Development
Augusta, Maine

August 1990

ACKNOWLEDGEMENTS

The following documents were used in the preparation of this manual:

DEP ISSUE PROFILE Mandatory Shoreland Zoning Act, August 1990;

Mandatory Shoreland Zoning Act, Title 38, Sections 435-449 M.R.S.A. (last ammended
and approved April 6, 1990) as prepared, by DEP Shoreland Zoning Unit.

State of Maine Guidelines for Municipal Shoreland Zoning Ordinances, DEP, March 24,
1990.

EDUCATIONAL OEUECTIVES

These educational objectives are provided as a source of guidance to the reader. They
are intended to help the reader focus on important issues contained within the manual.
They should be used for the purpose of review in preparing for the Level 1 certification
examination.

1 . Know the purpose of the Shoreland Zoning Act.

2. Know the relationship between the Shoreland Zoning Act, DEP's model ordinance,
and the locally adopted ordinance.

3. Know the applicability of the Act.

4. Know the role of a municipality as defined by the Act.

5. Know when and by whom the Code Enforcement Officer is appointed, under the
Shoreland Zoning Act.

6. Know the role of the State as defined by the Act.

7. Know the special provisions which override local ordinances contained in the
Shoreland Zoning Act.

8. Know the powers and duties of the CEO, under the Shoreland Zoning Act.

INTRODUCTION

The State of Maine is trustee of all waters of the State and responsible for public
health, safety and the general welfare. In keeping with these responsibilities, the State
has declared that it is in the public interest to establish zoning and land use controls
along shoreland and wetland areas. The Mandatory Shoreland Zoning Act was enacted
by the Legislature in 1971. It is implemented through local zoning ordinances adopted,
administered, and enforced by municipalities with technical assistance from the
Department of Environmental Protection. A large share of the success of the law will
depend upon the. efforts of Code Enforcement Officers throughout the state working to
implement their local ordiriance in keeping with the intent of the Act. A functional
understanding of the components of the law is crucial to the ability of Code Enforcement
Officers to carry out the every day tasks of implementing their local shoreland zoning
ordinance.

REVIEW OF THE MANDATORY SHORELAND ZONING ACT

Zoning and land use controls enacted to carry out the mandates of the
Shoreland Zoning Act will preserve the integrity of wildlife habitat, protect existing
shoreland uses and prevent new uses from being located where flooding and
accelerated erosion will cause detrimental effects, prevent and- control waiter pollution
which endangers fish and wildlife and maritime industries, protect shoreland areas,
including wetlands, by controlling placement of structures and other land uses, and
preserve, natural beauty and open space. In addition, shoreland adjacent to significant
river segments is subject to more stringent regulation.
o

Pursuant to the Mandatory Shoreland Zoning Act, the Board of Environmental
Protection has adopted minimum guidelines for municipal zoning and land use controls.
These are the "State of Maine Guidelines for Municipal Shoreland Zoning Ordinances".
The Board must update and amend them as necessary and reevaluate and update them
at least once every four years. These are minimum 'guidelines which, if followed, will
produce an ordinance which meets the basic requirements of the law.

The Act requires that municipalities prepare shoreland zoning ordinances
consistent with, or no less stringent than, the minimum guidelines. Coastal communities
must prepare ordinances consistent with the coastal management policies cited in
M.R.S.A. Title 38 section 1801. The Department of Environmental Protection encourages
communities to consider local planning documents and special local conditions which
might require different standards than those in the minimum guidelines and to modify the
model ordinance to meet the needs of the particular community. Special conditions
which give rise to a more unique ordinance must be documented and submitted with the
ordinance to the Commissioner of DEP for review and approval. Municipalities may
adopt more stringent or very different ordinances which are equally or more effective in
achieving the purposes of the Act. Municipal ordinances, amendments and any repeals
of ordinances shall not be effective unless submitted to the Commissioner for review and
subsequently 'approved.

The Mandatory Shoreland Zoning Act, as amended through July 14, 1990, is
applicable to all land areas within 250 feet of ponds and freshwater wetlands that are 10
acres or. larger, rivers with watersheds of at least 25 square miles in drainage area,
coastal wetlands, and tidal waters, and within 75 feet of the normal high-water line of a
stream. Additionally, significant river segments, as defined by the Act, must be
addressed in the local ordinance to protect their natural and recreational features.
Zoning for these areas must be at least as restrictive as the guidelines established
pursuant to section 445 of the Act. Definitions for all of these protected resources can
be found in sections 436-A and 437 of the Act.

I. -

All municipalities in the Stateof Maine have been given the authority and
responsibility to adopt, administer, and enforce a shoreland zoning ordinance and map
for their areas of jurisdiction. A municipality must adopt a local shoreland zoning
ordinance and submit it to the Commissioner of DEP for review. Once the local
ordinance has been approved by the Commissioner, the municipality is required to
update the local ordinance in order to maintain consistency with state amendments to
the Guidelines. A copy of every request for variance under the local ordinance must be
forwarded to the Commissioner at least 20 days prior to action by the municipality. To
fulfill the enforcement requirements of the Act, municipalities must. appoint or reappoint a
Code Enforcement Officer by July 1 of each year.

In cases where a municipality has not adopted an ordinance, the Board of
Environmental Protection will adopt a suitable ordinance for that municipality. Where a
municipality adopts an ordinance that is found to'be deficient,, the Commissioner may
make the ordinance consistent with the minimum guidelines by the imposition of
conditions on that locally adopted ordinance. Following the Board's or the
Commissioner's action, the ordinance will be effective and binding within the municipality
and shall be administered and enforced by the municipality.

The State's primary role is to provide technical assistance in the adoption,
administration, and enforcement of local ordinances. The Department of Environmental
Protection will address these needs as they arise. The State Board of Environmental
Protection must update and amend the minimum guidelines for municipal zoning and
land use controls, at least every four years. The -Board must ensure that every
10 municipality has adopted a local shoreland zoning ordinance. The Commissioner must
review and approve or deny amendments or repeals to municipal ordinances. A copy of
each request for a variance under an ordinance approved by the Board, must be
reviewed by the Commissioner'of DER The Commissioner may comment when it is
determined that the municipal issuance of the variance would be in noncompliance with
the requirements of state law for a zoning variance, or the variance would undermine the
legislative purposes declared in the Act. The Commissioner must report to the
Legislature biennially on the implementation and impact of local shoreland zoning
ordinances.

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PROVISIONS IN THE LAW WHICH OVERRIDE LOCAL ORDINMCES

The specific provisions of the Shoreland Zoning Act that override local ordinances,
if the language contained in those ordinances is less restrictive, are:*

I All structures, whether principal, accessory, temporary, or
permanent, must meet the water setback requirement approved by the Board,
except structures requiring direct access to the water as an operational necessity,
such as piers, docks, or retaining walls. A structure located next to the water for
convenience does not meet the test of operational necessity.

2. Clearing of vegetation and timber harvesting are prohibited within 75 feet of the
normal high-water line of a great pond zon6d for resource protection.

3. Where clearing of vegetation and timber harvesting are permitted, selective cutting
of not more than 40 percent of the trees 4 inches or more in diameter, measured
2feet above ground, level, in any 10 year period, is allowed provided that a
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well-distributed stand of trees and other natural vegetation remains..

Furthermore, to provide for screening between development activities and the
water, cleared openings are prohibited within a strip extending 75 feet inland from
the. normal high-water line, except for approved construction, and a. well-
distributed stand of vegetation must remain.

4. Municipalities must appoint or reappoint a Code Enforcement Officer by July 1 of
each year. ,

5. Public utilities can not hook up to a new structure in the shoreland zone without
written authorization from local officials.

6. Substantial expansions of principal and accessory structures within the shoreland
zone must meet the water setback requirements. A substantial expansion is one
that increases either the volume or floor area by 30% or more. Structures located
less than the required setback from thenormal high-water line. may not be
expanded toward the water.

7. Amendments to ordinances adopted under the Mandatory Shoreland Zoning Act
are not effective until approved by the DEP Commissioner.

8. Applications for variances must be forwarded to DEP at least 20 days before a
decision is made by the Board of Appeals.

Cited from DEP ISSUE PROFILE Mandato!y Shoreland Zoning Act, revised August
1990.

POWERS AND DUTIES OF THE CEO

The Code Enforcement Officer is primarily responsible for successfully
implementing the Shoreland Zoning Act. The CEO must have a functional understanding
of the Act, the local ordinance and zoning maps in effect in the community in which he or
she is appointed. He or she provides-information to the public within his/her community
related to the Act. When permit applications are accepted a review must be done to
check whether shoreland zoning, among other 'ordinances, will apply to the particular
case. He or she must circulate them for review as necessary, and issue or deny permits,
as authorized, based upon the application information provided and the CEO's
understanding of the Shoreland Zoning Act and the local ordinaince and map which has
been adopted pursuant to ft. The CEO is responsible for follow-up, through inspection
to ensure compliance. The CEO must also assume the role of watch dog in responding
to complaints of alleged violations and in daily travels around town to ensure protection
for sensitive areas. The CEO must keep a complete record of all transactions regarding
applications received, permits granted or denied, revocation actions, appeals of
decisions, court actions, violations investigated, violations found, and any fees collected.
Each year the CEO must submit a summary of this record to the Director of the Bureau
of Land Quality Control within the Department of Environmental Protection.

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