Mandatory Shoreland Zoning Act
Date: September, 2003
The Mandatory Shoreland Zoning Act was enacted by the Legislature in 1971. The current law, as amended, requires municipalities to establish land use controls for all land areas within 250 feet of ponds and non-forested 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 all land areas within 75 feet of certain streams.
What is the intent of the law?
The law's intent is (1) to protect water quality, wildlife habitat, wetlands, archaeological sites and historic resources, and commercial fishing and maritime industries; and (2) to conserve shore cover, public access, natural beauty, and open space. It does this by controlling land uses, and placement of structures within the shoreland area.
How is the law implemented?
Your local shoreland zoning ordinance and map serve to implement the law. To assist towns in developing ordinances, the state has drafted a model State of Maine Guidelines for Municipal Shoreland Zoning Ordinances containing the standards to be included.
Who adopts, administers and enforces shoreland zoning ordinances and maps?
Municipalities are empowered to by law adopt, administer, and enforce their own shoreland zoning ordinance and map.
The state's primary role, through the Department of Environmental Protection, is to provide technical assistance in the adoption, administration, and enforcement of these local ordinances.
If a municipality has not adopted its own shoreland zoning ordinance, the state will adopt the model ordinance for that municipality. Of the more than 450 municipalities with shoreland zoning ordinances, approximately 60 currently have "state-imposed" ordinances.
What is the state's model ordinance?
As noted above, the state has developed a model ordinance that contains "minimum guidelines." Although it does not have the force of law in communities that have adopted a shoreland zoning ordinance, it is used by the state to determine whether a municipality has complied with the Mandatory Shoreland Zoning Act. Local ordinances may be more restrictive, but not less restrictive, than the model ordinance.
A municipality may achieve the intent and purpose of the model ordinance through other land use regulations. However, as noted above, if a community does not adopt its own ordinance, the state model will be imposed.
The model ordinance approved by the Board of Environmental Protection divides the shoreland zone into six land use districts: resource protection, limited residential, limited commercial, general development, commercial fisheries/maritime activities, and stream protection. The ordinance includes a table which lists specific land use activities and indicates, for each land use district, whether that activity is prohibited; allowed without a formal permit; or allowed with a permit from the Code Enforcement Officer, the Planning Board, or the Local Plumbing Inspector.
What types of controls are contained in the model ordinance?
The model ordinance contains numerous standards for shoreland development activities, including:
- minimum lot area and frontage;
- structure setbacks;
- clearing limitations;
- timber harvesting limitations;
- erosion and sedimentation control;
- sewage disposal; and
- provisions for nonconforming uses, nonconforming lots, and nonconforming structures.
According to the ordinance, all land use activities -- even those that don't need a permit -- must comply with all the applicable land use standards described in the ordinance.
How has the law been amended in recent years?
The following significant additions to the law are included in recent amendments:
- The requirement that land within 250 feet of the upland edge of coastal wetlands and non-forested freshwater wetlands and land within 75 feet of certain streams, be included in the shoreland zone (under the law, a stream is defined as a free-flowing body of water from the outlet of a great pond, or the confluence of two perennial streams as shown on the most recent USGS topographic map to the point where that body of water becomes a river or enters another waterbody or wetland) (1989);
- Expansions are limited on structures that do not meet the waterbody or wetland setback requirement. Expansions on nonconforming structures are limited to less that 30% of a structure's floor area and volume (1989);
- Later the legislature adopted an optional alternative method of limiting expansions for those municipalities that choose to adopt it. The alternative method of limiting expansions is based on a maximum floor area allowance and a height limitation, in relation to the structure's setback distance (1998);
- The allowance for a Planning Board to issue a permit for a single-family residence in a Resource Protection District under certain limited conditions (1993);
- A basement has been defined as "any portion of a structure with a floor-to-ceiling height of 6 feet or more and having more than 50% of it's volume below existing ground level (1998);
- Recreational boat storage buildings have been declared not to be "functionally water-dependent uses" (1998);
- When a property is being considered by the municipality for placement in a Resource Protection District, the landowners must be provided with written notification (1996);
- A municipality, by ordinance, may allow limited timber harvesting in a Resource Protection District adjacent to a great pond (1999); and
- A permit is not required for an archaeological excavation that is within the shoreland zone as long as the excavation is conducted by an archeologist listed on the Maine Historic Preservation Commission Level 1 or Level 2 approved list, and adequate erosion and sedimentation controls are implemented (2001).
Do certain provisions in the law override a local ordinance?
Yes. The following specific provisions in the law override local ordinances if the language contained in those ordinances is less restrictive:
- All structures - principal, accessory, temporary, or permanent - must meet the water setback requirement, 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. A recreational boat storage building is not functionally water-dependent, and must meet water setback requirements.
- Clearing of vegetation is prohibited within 75 feet of the normal high-water line of a great pond zoned for resource protection. Timber harvesting is also prohibited within 75' of the normal high-water line of a great pond zoned Resource Protection unless permitted by ordinance under certain limited conditions.
- Where clearing of vegetation and timber harvesting are permitted, selective cutting of not more than 40% of the trees 4 inches or more in diameter (measured at 4½ feet above ground level) in any 10-year period is allowed provided a well-distributed stand of trees and other natural vegetation remains. The exception to this rule applies where timber harvesting is permitted within 75' of a great pond zoned Resource Protection. Here, harvesting is limited to no more than 30% of the volume of trees over six inches in diameter.
- 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 such as a boat access-way, and a well-distributed stand of vegetation must remain.
- Municipalities must appoint or reappoint a Code Enforcement Officer by July 1 of each year.
- Public utilities cannot hook up to a new structure in the shoreland zone without written authorization from local officials.
- Substantial expansion 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 the normal high-water line may not be expanded toward the water.
- Alternately, a municipality may choose to limit expansions of nonconforming structures based on floor area and structure height limitations as set forth in 38 MRSA § 439-A.4-A.
- Amendments to ordinances adopted under the Mandatory Shoreland Zoning Act are not effective until approved by the DEP Commissioner.
- Municipal code enforcement officers must, on a biennial basis, submit a report of shoreland zoning transactions to the DEP.
Can municipalities regulate structures that extend over a waterbody or wetland?
Yes. The Mandatory Shoreland Zoning Act permits a municipality to enact ordinances that regulate structures that extend or are located over the water or are placed on land lying between high and low waterlines or within wetlands.
What should I do if I suspect a shoreland zoning violation?
The provisions of a municipal shoreland zoning ordinance are enforced by the municipality. If you suspect a violation, contact the Code Enforcement Officer of the town where the alleged violation has occurred.
However, if the complaint is against a town for failing to enforce or administer its shoreland zoning ordinance, you should call the Department's Shoreland Zoning Coordinator at (207) 287-3901, or write to:
Shoreland Zoning Coordinator
Department of Environmental Protection
State House Station 17
Augusta, ME 04333-0017
If you have difficulty contacting the town, contact DEP's Shoreland Zoning staff, who will forward the information to the town and follow up on the situation.