October 2021
In this Issue:
New Law Becomes Effective October 18, 2021
The legislature adopted one bill in the first session of the 130th Legislature (2021) with shoreland zone implications that is now in effect. Public Law 2021, chapter 336 (enacting LD 1161 - An Act Concerning Marina-based Restaurants in the Shoreland Zone) authorizes a municipality to adopt an ordinance that allows the expansion of existing restaurants that are part of a marina – under certain conditions – notwithstanding provisions that otherwise establish setback requirements and limit the expansion of structures within 25 feet of a water body or wetland. While the law provides a new option for municipalities that want to allow restaurant expansions at marinas that previously were prohibited, a municipality is not requires to incorporate this option in its shoreland zoning ordinance. Further, until a municipality’s ordinance is updated, owners of marinas with restaurants will have to continue to follow existing zoning requirements.
Under the new law, the expansion of an existing restaurant that is part of a marina that has been permitted in accordance with all applicable state and local requirements may be authorized if the expansion:
- Is not located over a water body or wetland, and
- Is not located any closer to the water body or wetland than the existing restaurant.
Other state and local requirements would continue to apply. The amendment further specifies that the expansion may be allowed if the restaurant and the marina of which the restaurant is a part have both been in existence as of January 1, 2021. The Statutory language can be found at 38 M.R.S. § 439-A(4-D)
Bill to Watch
One bill with shoreland zone implications carried over from the first session of the 130th Legislature (2021) is L.D. 1312 - An Act To Remove Barriers to Accessory Dwelling Units and Allow Accessory Dwelling Units where Single-family Houses Are Allowed. As amended through the course of the session, this bill requires municipalities to allow one accessory dwelling unit as long as the unit complies with minimum shoreland zoning guidelines adopted by the Department of Environmental Protection, subject to locally adopted accessory dwelling unit land use requirements, and either the primary or accessory dwelling is owner-occupied. This bill was placed on the special appropriations table, was not funded, and, therefore, has been carried over.
Reminder - Photographic Record in the Shoreland Zone
A change in state statute was made in 2019 relating to Shoreland Ordinances and now requires municipal ordinances regulating the shoreland zone to adopt language requiring applicants developing within the shoreland zone to provide pre-construction and post-construction photos of the shoreline vegetation and the developed site as part of the permitting process. The additional submission of the pre-construction photos will give property owners and municipal officials an established baseline and the post-construction photos will document the conditions after construction. The addition of this photo requirement should provide a benefit to property owners and municipal officials in achieving desired compliance, as well as give the permitting body a better understanding of the preconstruction site conditions.
The specific language from statute is as follows:
38 M.R.S. § 439-A(10) Photographic record required. A municipal ordinance adopted pursuant to this article must require an applicant for a permit for development within the shoreland zone to provide to the municipal permitting authority preconstruction photographs and, no later than 20 days after completion of the development, postconstruction photographs of the shoreline vegetation and development site.
When updating their ordinances, municipalities must include language consistent with this legal requirement. Please contact us if you need assistance.
Does your municipality have a draft Shoreland Zoning Ordinance, or part of an ordinance, that you would like to have reviewed before it goes up for adoption? We welcome the opportunity to help municipalities make sure their ordinance is ready for adoption. When we can catch errors or issues before adoption it expedites the approval process and avoids the needs for the Department to correct and amend the ordinance through attaching conditions of approval.
Jeffrey Kalinich 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 Hurd in the Bangor Office.
Given staff are still working remotely, Ordinance, Map, and Variance reviews filed with the Bureau of Land Resources should be filed by email. Locally approved and adopted Ordinances and Maps should be attested and signed and scanned as a PDF, and then emailed to the Shoreland Zoning Staff in your area. Please only mail these materials if electronic submission is not an option. 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.
Shoreland zoning staff will be participating in the 34 Annual AVCOG Planning Day on Tuesday, November 9, 2021. This will be an online event this year. Please see the following link for registration information and the day’s agenda. https://www.avcog.org/1218/Planning-Day-2021
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