January 2024
In this edition of the Shoreland Zoning News we hope to provide information to municipalities related to the damaging storms that have recently impacted the state. The following articles discuss Shoreland Zoning, Floodplain Management, the Natural Resources Protection Act, and DEP Response Services in regard to oil tanks. Each article contains contact information to gather additional resources if needed. We hope that the information provided is helpful when evaluating projects during this difficult time.
Damaged and Replacement Structures
Any non-conforming structure which is located less than the required setback from a water body, tributary stream, or wetland and which is removed, or damaged or destroyed, regardless of the cause, by more than 50% of the market value will have to be permitted by the Planning Boards and go through Greatest Practical Extent review to see if there is a spot on the property that is conforming or more conforming with the regulations that are currently in use. Please keep in mind recreational boat storage buildings are not considered functionally water dependent.
Raising of Structures
Given the calls and emails I have received I am sure property owners and municipal officials want to discuss raising buildings in hopes to prevent some of the damage done by these kinds of storms in the future. In 2021 with Sue Baker the Program Coordinator for the Maine Floodplain Management Program’s help we added some language to the nonconforming structures expansions section of statute to allow this when structures are in an area of special flood hazard. The following language could be adopted into the Local SLZ ordinance in the Nonconforming structures expansion section of the local ordinance or can be used without adoption into the ordinance, but we would suggest adding it into your local ordinances. Please pay close attention to the standard involving looking at moving structures back to the greatest practical extent prior to raining of the structure.
(c-1) Notwithstanding the limitations on height imposed under Sections 12 C1 (a), (b), & (c) the height of a structure that is a legally existing nonconforming principal or accessory structure may be raised to, but not above, the minimum elevation necessary to be consistent with the local floodplain management elevation requirement or to 3 feet above base flood elevation, whichever is greater, as long as the structure is relocated, reconstructed, replaced or elevated within the boundaries of the parcel so that the water body or wetland setback requirement is met to the greatest practical extent. This paragraph applies to structures that:
(1) Have been or are proposed to be relocated, reconstructed, replaced or elevated to be consistent with the local floodplain management elevation requirement; and
(2) Are located in an area of special flood hazard.
And the following Definition should be added to replace the current definition of Height in the local ordinance.
Height of a structure:
(A) With respect to existing principal or accessory structures, including legally existing nonconforming structures, located within an area of special flood hazard that have been or are proposed to be relocated, reconstructed, replaced or elevated to be consistent with the minimum elevation required by a local floodplain management ordinance, the vertical distance between the bottom of the sill of the structure to the highest point of the structure, excluding chimneys, steeples, antennas and similar appurtenances that have no floor area; and
(B) With respect to new principal or accessory structures and to existing principal or accessory structures other than those described in paragraph A, including legally existing nonconforming structures, the vertical distance between the mean original grade at the downhill side of the structure, prior to construction, and the highest point of the structure, excluding chimneys, steeples, antennas and similar appurtenances that have no floor area.
If you have any questions, please feel free to email by clicking on one of the following links staff based on your location
Emergency repairs are not exempt from permitting under the floodplain management ordinance. If emergency repairs are made to a building, you should keep good track of the value of repairs. All permits for repairs and improvements issued within a 1 year period will be cumulative towards Substantial Improvement. If a building has been damaged by 50% of more, it is automatically a Substantial Improvement and must be elevated, regardless of the actual amount they spend to repair.
There have been two recent Substantial Improvement/Substantial Damage webinars that have been held. If your community has any buildings that may be substantially damaged (damage of 50% or more), then it would be prudent for you review the slide and the relevant materials. If the Planning Board is the permitting authority in the FPM ordinance, please advise them to take advantage of the relevant guidance that is available. There are SI/SD links to additional materials that are already posted here: https://www.maine.gov/dps/fmo/building-codes/code-enforcement/online-training-library. We will be posting the training video and the slides soon.
Here are a few other considerations that will be helpful to know:
Definition of a Structure: Under floodplain, only a walled and roofed building or above ground gas or liquid storage tank is considered a structure. I don’t believe that tanks can be elevated more than one foot above the ground as per the oil and solid fuel rules, so they should be adequately anchored to prevent buoyancy and lateral movement or worse. Note that under Shoreland Zoning, this term is defined more broadly and includes other things that do not fit into NFIP definition. Only a building is required to be elevated. If a building is totally gone, then it will be considered new construction and will need to be elevated. Variances may be issued from the elevation requirement for:
(1) Historic Structures (as defined), but only if elevating the building would cause it to lose its historical designation. If it is completely gone, then you no longer have a historic building so no variances should be issued.
(2) Conduct of a functionally dependent use. Please note that the definition for FDU under floodplain is much more restrictive then the Shoreland Zoning definition, so please use caution when determining whether or not it meets the definition under floodplain. Under the NFIP, lobster and fishing sheds entirely over water are not considered functionally dependent.
Probably 20 years ago, we worked with FEMA Headquarters on Conditional Use language which applies to these types of buildings. All the coastal communities have this language in effect.
A variance from the elevation requirement is not a blank check to do whatever they want. They must still mitigate to the full extent possible so Article VI.A.1-4 will apply:
A. All Development - All development shall:
- be designed or modified and adequately anchored to prevent flotation (excluding piers and docks), collapse, or lateral movement of the development resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;
- use construction materials that are resistant to flood damage;
- use construction methods and practices that will minimize flood damage; and,
- use electrical, heating, ventilation, plumbing, and air conditioning equipment, and other service facilities that are designed and/or located to prevent water from entering or accumulating within the components during flooding conditions.
Repairs to retaining/sea walls: These repairs require a minor permit in order to put them back the way they were. They cannot be enlarged without undergoing a full blown engineering analysis to determine whether a Letter of Map Revision (LOMR) is warranted. These types of enlargements can change the base flood elevation, the flood zone, and/or the limit of the flood hazard boundary line. The integrity of the maps depends on this process to keep them accurate.
If you have any questions please feel free to contact Sue Baker Program Coordinator for the Maine Floodplain Management Program at 207-287-8063 or sue.baker@maine.gov
Permitting Guidance for Storm Recovery Activities
Repairing a damaged structure is exempt from DEP permitting. Replacing a floating dock in-kind is also exempt from DEP permitting. (Full list of exemptions under the Natural Resources Protection Act.)
The following activities qualify for a permit-by-rule (PBR). Qualifying projects are automatically approved after a 14-day review period. Visit the Permit by Rule webpage, review the materials for the appropriate PBR section referenced below, and click the link for "How to submit a PBR notification to DEP."
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Replacing a damaged structure in-kind, with the same or reduced dimensions. See PBR Section 4 if your structure is in/over the water, and see PBR Section 2 if your structure is adjacent to the water. NOTE: For an activity occurring in tidal waters, notice of approval of timing of the activity is required from the Department of Marine Resources (DMR). DMR has provided temporary approval of timing for all PBR applications associated with storm recovery activities.
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Moving a structure farther away from the water. See PBR Section 2.
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Elevating a structure if it is adjacent to the water (not in/over the water). See PBR Section 2.
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Removal of man-made or natural debris from the water. See PBR Section 12. (Note that this Section applies only to debris removal. Removal of naturally deposited sediment from the water requires a full permit.)
If your structure is in a coastal sand dune system, standards may be different (depending on the activity). Find guidance on repairing and rebuilding in coastal sand dune systems (and please refer to the map of coastal sand dune systems to determine if your project is located in a sand dune.)
As of today, elevating a structure higher over the water would require a full DEP permit. However, the DEP has already introduced a bill to the Legislature, LD 2030, that would allow for the elevation of piers higher over the water without a DEP permit. The DEP is working quickly with the Legislature to amend this bill to ensure that communities will be able to rebuild all working waterfront infrastructure (not just piers) higher over the water without DEP review. The Department is recommending that this legislation should be passed on an emergency basis so that it will go into effect immediately. If you are planning to elevate your pier, wharf, or other working water infrastructure higher over the water, please wait 1-2 weeks and check this webpage again for updates on the status of the Department's proposed legislation.
If you have any questions, please do not hesitate to contact the DEP. You may reach us via email, or call your regional office:
- Bangor (Eastern Maine Regional Office): 207-941-4570; 888-769-1137
- Portland (Southern Maine Regional Office): 207-822-6300; 888-769-1036
- Augusta (Central Maine Regional Office): 207-287-7688; 800-452-1942
Please also remember to check with your local code enforcement officer regarding local permitting requirements.
If you have an oil tank that has been damaged as a result of the storm (flooding, falling debris, etc.), please contact the Maine Department of Environmental Protection (MDEP) at (800) 482-0777. This line is answered 24/7 and the MDEP Response Services Division are ready to assess, assist, and clean up oil spills. MDEP also has funding available to help.
Basement Fuel Oil Tanks: If your basement has flooded your basement fuel oil tank may float and may release oil. If you pump the water out of your basement the oil tank can be damaged as it comes back down. It is best to get the oil out of the tank before you pump the water out. If the tank has already leaked and there is oil in the floodwater in your basement, do not pump the oil out onto the ground or into storm drains or ditches. Oil floats on water so if you must pump water out of your basement, stop pumping before the oil reaches the pump.
Outdoor Fuel Oil Tanks: If you have an outdoor fuel oil tank that has been damaged by the storm call MDEP at (800) 482-0777. It is best not to touch the tank because you could cause an initial oil spill, or you can cause more oil to be released if a spill has already started.
Maine DEP has Responders staged Statewide ready to assist. Because of the impact of recent storms, please understand that it may take a little extra time for Responders to get to where you are. When speaking to dispatch at the number above, provide detailed information and MDEP Responders will help.
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