Spring 2017 Shreloand Zoning News

Shoreland Zoning HeaderSpring 2017

Spring  2017 Vol. 30 No. 1

In this Issue:

Alternative Energy Structures in the Shoreland Zone


As you likely know, solar arrays and wind turbines are considered structures under shoreland zoning and therefore must meet the structure setback requirements. However, with fluctuating energy costs and the recent movement to convert to a cleaner form of energy, we have had recent cause to reconsider the current State shoreland zoning policies as they apply to solar and wind energy.

 We have conferred with the Department of the Attorney General and determined that the format of the current language in the Mandatory Shoreland Zoning Act provides municipalities the option of amending their local shoreland zoning ordinances to begin permitting solar panels and wind turbines within the shoreland setback in some cases. The Department is allowing municipalities to amend local ordinances to permit solar arrays and wind turbines within the shoreland setback with certain conditions. Specifically, the area within the setback in which the solar and wind-power structures are proposed must be a legally existing clearing (e.g. existing lawn), and any additional vegetation removal necessary must conform to the vegetation removal provisions within the ordinance. In addition, the extent of a proposed alternative energy project must be limited by design to the energy needs of the existing use on the property. Sale of energy to the power grid must be limited to incidental excess power generation. Projects designed for commercial generation of power must comply with structure setback requirements.

 If your municipality wishes to establish this allowance for such structures, feel free to contact us with any questions as you develop your local ordinance language.

Vegetation Replanting For Permitted Projects


While many municipalities require sufficient replanting of vegetation when a permitted project is proposed within the shoreland zone buffer area, such as a shoreline stabilization project, we continue to find that some municipalities are not requiring adequate replanting.  Replanting of vegetation is necessary for a project located in the shoreland zone when the project requires removal of more vegetation than would otherwise be allowed within the municipal ordinance.  This permitted excessive removal of vegetation is not considered to be a violation unless replanting of vegetation is not completed within a reasonable time period (e.g. same growing season, or spring growing season for winter projects).

Examples of such projects can include shoreline stabilization, removal or reconstruction of a non-conforming structure, construction of a functionally water-dependent structure at or near the shoreline (e.g. a pier), and the removal of hazard and storm-damaged trees. 

Not all projects located within the shoreland zone are permitted to remove vegetation in excess of the removal standards. For instance, the construction of a new house that meets the shoreline setback requirement on an undeveloped lot may not cause the removal of vegetation within the setback/buffer area. 

To help improve consistency from one municipality to another, below is a summary of the longstanding general revegetation standards that should be required by all municipalities.  Municipalities should be approving a revegetation plan as part of the application and that complies with these standards at the same time it approves the proposed project.  Here are the general standards:

Trees: when trees are removed in excess of the ordinance standards in order to conduct a permitted project, trees must be replanted.  Replanted trees must be similar native species as were removed or native to the immediate area of shoreline.  Hardwood tree species must be a minimum of 6 feet in height and softwood species must be a minimum of 3 feet in height.  The planting density must be no less than one tree per 80 square feet of affected area, with limited exception.  An exception to the density requirement would apply when very few existing trees were either present prior to commencement of the project or very few were removed for a project, in which case the number of trees to be replanted would be based on a minimum 1:1 replanting ratio (1 tree planted for every 1 tree removed). 

Replanted trees must be randomly distributed within the same general location as where they were removed, or if not possible then as close to the removal location as practical.  In the case of shoreline stabilization projects, trees are not required to be planted to replace removed trees that are (marginally) alive, but that have fallen to a horizontal or nearly horizontal position due to natural (slope failure) conditions.  Removed dead trees do not have to be replaced.

Shrubs:  when shrubs are removed in excess of the ordinance standards in order to conduct a permitted project, shrubs must also be replanted.  Replanted shrubs must be similar native species as removed or if not readily available at commercial nurseries then other suitable native species that grow to a similar size may be planted.

Shrub species must be planted at a density of one plant spaced 3 feet on center, and be planted throughout the affected area.  Shrubs must also be planted in accordance with these requirements in areas where shrubs were not removed, but would otherwise result in a non-vegetated area unless the area had been a legally existing maintained grass lawn- in which case grass lawn could be re-established without shrub planting being necessary.

Other:  Herbaceous vegetation (grasses, sedges, wildflowers, etc.) and other ground cover, including the organic duff layer, must be re-established in areas where it was removed except for areas treated with riprap or other similar structure.  Such vegetation and ground cover must be re-established around any tree and shrub planting as described above.  Several examples include planting a conservation seed mix, low-bush blueberry sod, and spreading a 4”- 6” thick layer of natural leaf or pine needle litter or a commercially available product that functions similarly throughout the affected area.

Every site is unique and doesn’t necessarily fit into the same mold.  Please don’t hesitate to contact the Department’s Shoreland Zoning Unit staff for assistance if you have questions about replanting requirements at a particular site. 

Municipal Choices Under the Nonconforming Structures Expansion Section


In 2015 the Department amended the Municipal Shoreland Zoning Guidelines (Chapter 1000) in an effort to bring the guidelines into compliance with 38 M.R.S. § 439-A (4), which was amended in 2013. One primary amendment in Title 38 M.R.S. § 439-A (4), Setback requirements, commonly referred to as the Expansion Provision, no longer permits the old “30% expansion rule” that allowed nonconforming structures in the Shoreland Zone to expand by 30% of the floor area and volume.  The legislature replaced that language with new expansion limits for nonconforming structures that are based on square footage and height.  We introduced the new provisions in the summer 2014 Shoreland Zoning News. 

The new provisions limit footprint by square footage or percent, whichever allows for more expansion.  Including both limitations would provide landowners with the choice of which limitation to apply to their property.  Municipal officials may choose to include only one of the limitations, either square footage or percent.  This would be more restrictive on the landowner, but simpler for municipal officials to administer and enforce.

Many municipalities continue to use the old “30% rule” even though the law requires municipalities to adopt “ordinances that are consistent with or are no less stringent than the minimum guidelines”  38 M.R.S. § 438-A (2). 

The Department strongly urges these municipalities to amend local ordinances in a manner that is consistent with current state law.  Consistency between local ordinances and state law will provide clarity to property owners and code enforcement officials, which will in turn reduce the likelihood of costly legal disputes.  Additionally, in the event the “old 30% rule” is less restrictive than 38 M.R.S. § 439-A (4), municipalities run the risk of violating 38 M.R.S. § 443-A(3).

The Chapter 1000 Guidelines must be modified for local adoption.  Shoreland zoning staff is available to assist municipalities with this process.  Ordinances must be approved by the Department in order to become effective, and the Shoreland zoning staff urges municipalities to contact us early in the amendment drafting process.

Notes from the Shoreland Zoning Unit


Does your municipality have a draft Ordinance, or a part, that you’d like to have reviewed before it goes up for adoption? We’d love to help make sure your Ordinance is good for adoption. When we can catch errors or issues before adoption, it helps us reduce the number of Ordinances we have to approve with conditions, giving us more time to answer your phone calls and help with site visits.

 Mike Morse reviews drafts and adopted Ordinances for municipalities in Southern Maine. Municipalities in Central Maine can contact Colin Clark. Northern and Eastern Maine municipalities can reach Dawn Abbott in the Bangor Office. Generally we can review drafts either electronically or in hard copy; adopted Ordinances must be mailed as an attested copy. Remember to include a copy of the Map if amendments were adopted or at least a cover letter stating the current Map is still effective.

 A reminder: Any municipality with an adopted Ordinance, even if it’s “the State’s minimum standards” still make choices on which optional provisions to include. Always refer to the locally adopted ordinance, not the State’s Guidelines (Chapter 1000). A municipal decision referencing standards in the Guidelines that differ from the local ordinance could cause legal trouble for the municipality if someone appeals that decision.

For more Shoreland Zoning information please click on the following link: Shoreland Zoning