Winter 2014-2015 Vol. 27 No. 5
In this Edition:
In
the Summer 2014 Shoreland Zoning News, I discussed the ongoing work of DEP in both climate
mitigation and adaptation efforts. I talked about the creation of the
Environmental and Energy Resources Working Group whose purpose is to create a
cohesive, thoughtful and understandable approach by government to protect our
natural resources, our built infrastructure, as well as our health and safety.
To this end, the shoreland zoning standards aim to protect our valuable resources such as
Maine’s coastline, rivers, lakes, streams and wetlands.
Governor
LePage asked for a cross-cutting review to be undertaken by several agencies: DEP; Agriculture, Conservation and Forestry; Inland Fisheries and Wildlife;
Marine Resources; Transportation; and the Office of Energy. Over the course of
this review, we worked to develop a summary of the programs and activities
currently underway at these agencies, and recommendations for improvements and for regulatory cohesiveness as together
we move forward on adaptation and mitigation work.
The Summary and Recommendations by
the Working Group is available on the DEP website. Among
the Group’s recommendations are that its function be continued to provide a
forum for interdepartmental collaboration on matters relating to climate, that a web-based climate adaptation resource for resiliency planning be created and that input from stakeholders and natural resource decision makers be sought. I hope you
will continue to partner with us and share your ideas and comments as we move
forward.
By Colin Clark
 Myth: If the Department
approves a Natural Resources Protection Act (NRPA) Permit, either under a
Permit by Rule (PBR) or an Individual Permit, then the project would also meet local
shoreland zoning standards.
Truth: Even though both
laws can regulate the same projects in the same areas, they are not one in the
same. Another way to think about these two sets of regulations is to think
about your vehicle. To be road legal you need to have a valid inspection
sticker and registration. Even though the laws both govern the same vehicle, approval
from different people is required to be fully compliant.
This typically comes up when an applicant
proposes a project near the shoreline that involves soil disturbance, such as
landscaping, expanding a structure or constructing a new structure. Even though
the applicant agrees to follow the PBR standards, if the project does not
maintain the required vegetated buffer, or if they have already maximized their
expansion of the structure, or if the new structure does not meet a dimensional
requirement of the ordinance, then the project would not be allowed under
shoreland zoning and must be denied by the local permitting authority.
Department Role: Staff members
reviewing NRPA permits cannot know all the specifics of Maine’s 458 municipal
ordinances, but they do try to catch projects that do not comply with the local
standards. For projects that occur either within 25 feet of or in a protected
natural resource, an Individual Permit would be required. During this process,
a copy of the application is mailed to the municipality for review and comment
on whether or not the project meets local ordinance standards. PBR standards do
specify that the permit is not valid unless the project conforms to the local shoreland
zoning standards, in most cases requiring municipal approval.
Municipal Role: As code enforcement
officer or other local official, if you receive an Individual Permit application
for review and it does not meet the standards of the ordinance, then please
respond that the project as currently described would not meet the local ordinance
standards. As code enforcement officer or other reviewing authority, if you
receive an approved PBR or other NRPA permit, but the project does not meet the
standards of the local ordinance, do not issue local approval for the project.
Regardless of whether or not a project has been
approved by the Department, a municipality should only consider its local shoreland
zoning standards when determining whether or not a permit should be issued
under the municipality’s local ordinance. This is just like how the Bureau of
Motor Vehicles does not consider whether or not your vehicle has an inspection
sticker when they issue a new registration.
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Cape Elizabeth Code Enforcement Officer Ben McDougal describes his recent experience involving Mike Morse on a vegetation clearing case.
Responding to a citizen
complaint on September 5th, I discovered a shoreland zoning
violation. Although the town has primary enforcement authority, I contacted DEP
because I appreciate their advice on more serious violations. At question was
whether or not shrubs should count toward the cleared openings measurement between
75 feet and 250 feet from the shoreline.
DEP staff met with me
at the site to assist me with an assessment of the violation. The lot is
partially within the shoreland zone. No part of the lot lies within 75 feet of
the upland edge of the coastal wetland. The property had been abandoned and not
maintained for many years. Roughly 25% of the lot had trees, 25% was cleared
for the house and lawn, and 50% contained native shrubs including a large area
in front of the house. The old house was demolished, and in the process the
contractor cleared 90% of the lot.
When we finished
measuring stumps and distances from the ocean, we began discussing what restoration
would be required. I stated that the landowner is allowed a maximum of 10,000
square feet of cleared canopy opening and the remainder of the lot would be
replanted with trees and shrubs. DEP staff questioned whether I could require
that much replanting, because 75% of the lot was a legally existing cleared
opening, stating that shrubs are just protected within 75 feet of the water. In
my opinion only 25% of the lot was a cleared opening, because the rest was
trees and shrubs. I stated that I have been enforcing this based on Chapter
1000 Sections (15)(P)(3) and (5):
In no event shall
cleared openings for any purpose, including but not limited to, principal and
accessory structures, driveways, lawns and sewage disposal areas, exceed in the
aggregate, 25% of the lot area within the shoreland zone or ten thousand
(10,000) square feet, whichever is greater, including land previously cleared. ...
Fields and other
cleared openings which have reverted to primarily shrubs, trees, or other woody
vegetation shall be regulated under the provisions of Section 15(P).
 We agreed to research the matter further. After internal discussions that included the Attorney General's Office, DEP concluded that it is very reasonable to apply the shrub canopy toward the canopy openings limitation.
Naturally occurring shrubs are protected vegetation in all portions of the shoreland zone, not just within the buffer. Landowners can still clear 10,000 square feet or 25% of the lot, whichever is greater, but shrubs are considered part of the canopy for the purposes of this calculation. When an illegally cleared area must be replanted, shrubs must be replanted where there were shrubs prior. Note though that when trees are removed in violation, trees must be replanted and not replaced by just shrubs.
Thankfully my interpretation was correct, or else I would have owed several other landowners an apology for requiring them to plant or retain shrubs! An important point here also is that although the language may seem clear, sometimes these subtle nuances can trip us up, even DEP. DEP staff had cause to step back and re-evaluate the language and confirmed that the Town’s interpretation was supported. It is comforting to know that DEP has your back, especially with enforcement matters!
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By Stephenie MacLagan
 This year,
presentation requests focused on water quality concerns. This Story Series
continues with the announcement of our first webinar: Protecting Water Quality.
Understanding the
importance of good water quality to Maine’s economy, shoreland zoning staff
partnered with regional and local officials in May 2014. Presentations in
Washington County focused on the many actions landowners and municipal
officials can take on the land to affect water quality. In June, we
collaborated in Hancock County, receiving media attention.
After these
successful outreach events, we conducted a webinar for those in other counties
of the state. Nearly fifty individuals logged in to hear the presentations recorded
that day. The water quality webinar is an extended version of the presentations
given in-person.
Protecting water
quality is one of the purposes in shoreland zoning ordinances. Land use
activities affect water quality, which in turn affects livelihoods, property
values and recreation dependent on water quality. The webinar provides more
information about the direct and indirect effects, and the many actions and
options available for protecting and improving water quality.
We hope to improve on the webinar process for future trainings. Please let us know your suggestions and comments.
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Meet the staff series
You have come to rely on your regional staff member for local issues, but did you know that we also share state-wide responsibilities? Whether its updating tide tables or providing policy background, we’re constantly leaning on one another to ensure that shoreland zoning works for you. Our series continues as we share with you more about ourselves.
Mike Morse, also pictured in the CEO article above, started serving municipalities in Southern Maine 13 years ago.
 Why Shoreland Zoning? “After working for the Department in Augusta, shoreland zoning was a new challenge. The best part of the job is working with the code enforcement officers who share similar convictions about fairly and adequately administering shoreland zoning.”
Most fulfilling moment? “I've appreciated the challenges of balancing essential working waterfront with uses not functionally water-dependent, to help pier owners pay the bills and maintain infrastructure. Preserving working waterfront areas is critical, but so is preserving the infrastructure on which they work.”
Loving Maine? “I love all the outdoor opportunities here in Maine. I like fall for the cooler temperatures without bugs. Fall fishing and hunting is great. I enjoy fly-fishing for the mind-clearing experience, the peace and quiet and being able to get away from it all. Maine is also a great place to raise my family.”
Favorite place in Maine? “I can’t advertise that spot! Yes, it’s a river…I can say the general Rangeley area.”
Free time activities? “I love fly-fishing with my son. It’s not about the fishing as much as seeing how excited he is about it. It’s about getting him out there and sharing the same excitement that I had for it a hundred years ago. Another activity involves creating a skating rink on our front lawn for pond hockey every winter. It’s a lot of maintenance but worth it!”
Toward which Shoreland Zoning Purpose do you most gravitate? “‘To protect fish spawning grounds, aquatic life, bird and other wildlife habitat,’ because it’s in line with what I enjoy most about living here in Maine. Enjoying the outdoors is dependent on this.”
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Tide Tables
The Maine Geological
Survey spent much of 2014 preparing for a change from highest annual tide to
highest astronomical tide. Generally, the 2013 HAT Table remains in use. The
elevations for 2015 are being quality checked. In addition to a new highest
annual tide table, we hope to have a table comparing these values with the
highest astronomical tide, in 2015.
Training and testing
Protecting Water
Quality: Municipal and Landowner Toolboxes. Available online.
Sponsor: Maine Department of Economic and Community Development. One shoreland
zoning credit hour available.
Permitting and
Compliance: Accessing and Using GIS Resources. Available online. Sponsor: Maine
Department of Economic and Community Development. One shoreland zoning credit
hour available.
Continuing Education
Program for Certified Contractors: Permitting 101. December 3 in Augusta,
December 10 in Gorham and December 17 in Bangor. More information. Presenter: Nonpoint
Source Pollution Training Center.
Local Planning Boards
and Boards of Appeals. December 9 in Augusta, with video conferencing available
in Caribou and Fort Kent. More information. Sponsor: Maine Municipal
Association.
Certification Exam Dates. December 16 in Saco, December 17 in Augusta and December 18 in Bangor. Registration required. Sponsor: Department of Economic and Community Development.
Over the winter,
we’ll be thinking about topics of focus for our 2015 Shoreland Zoning Training
for Code Enforcement Officers. Let us know what interests you!
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