38 §439-A. Additional municipal powers, limitations
Title 38: WATERS AND NAVIGATION
Chapter 3: PROTECTION AND IMPROVEMENT OF WATERS
Subchapter 1: ENVIRONMENTAL PROTECTION BOARD
Article 2-B: MANDATORY SHORELAND ZONING HEADING: PL 1991, C. 346, §1 (RPR)
§439-A. Additional municipal powers, limitations
1. Additional controls. In addition to the ordinances required by this chapter, municipalities may adopt zoning and land use controls applicable to other bodies of water as may be required to protect the public health, safety and general welfare and further the purposes of this article.
[ 1987, c. 815, §§7, 11 (NEW) .]
2. Jurisdiction. Notwithstanding the scope of shoreland areas as identified in section 435, the jurisdiction of municipal shoreland zoning and land use control ordinances adopted under this article may include any structure built on, over or abutting a dock, wharf, pier or other structure extending or located below the normal high-water line or within a wetland. Accordingly, municipalities may enact ordinances affecting structures that extend or are located over the water or are placed on lands lying between high and low waterlines or within wetlands.
[ 1999, c. 243, §5 (AMD) .]
3. Soil evaluation reports. Any other law notwithstanding, when a zoning ordinance adopted in conformity with this article requires a written report of soil suitability for subsurface waste disposal or commercial or industrial development, that report must be prepared and signed by a duly qualified person who has made an on-the-ground evaluation of the soil properties involved. Persons qualified to prepare these reports must be certified by the Department of Health and Human Services and include Maine State Certified Soil Scientists, Maine Registered Professional Engineers, Maine State Certified Geologists and other persons who have training and experience in the recognition and evaluation of soil properties and can provide proof of this training and experience in a manner specified by the Department of Health and Human Services. The Department of Health and Human Services may promulgate rules for the purpose of establishing training and experience standards required by this subsection.
[ 1989, c. 890, Pt. A, §40 (AFF); 1989, c. 890, Pt. B, §47 (AMD); 2003, c. 689, Pt. B, §6 (REV) .]
4. Setback requirements. Notwithstanding any provision in a local ordinance to the contrary, all new principal and accessory structures and substantial expansions of such structures within the shoreland zone as established by section 435 must meet the water setback requirements approved by the board, except functionally water-dependent uses. For purposes of this subsection, a substantial expansion of a building is an expansion that increases either the volume or floor area by 30% or more. This subsection is not intended to prohibit a municipal board of appeals from granting a variance, subject to the requirements of this article and Title 30-A, section 4353, nor is it intended to prohibit a less than substantial expansion of a legally existing nonconforming structure, as long as the expansion does not create further nonconformity with the water setback requirement.
[ 1997, c. 726, §3 (AMD) .]
4-A. Alternative expansion requirement. Notwithstanding subsection 4, a municipality may adopt an ordinance pursuant to this subsection that permits expansions of principal and accessory structures that do not meet the water setback requirements approved by the Board of Environmental Protection if the ordinance is no less restrictive than the requirements in this subsection.
A. All new principal and accessory structures, excluding functionally water-dependent uses, must meet the water setback requirements approved by the Board of Environmental Protection. An expansion of a legally existing nonconforming structure pursuant to this subsection may not create further nonconformity with the water setback requirement. [1997, c. 748, §3 (NEW).]
B. Expansion of any portion of a structure within 25 feet of the normal high-water line or upland edge of a wetland is prohibited, even if the expansion will not increase nonconformity with the water setback requirement. Expansion of an accessory structure that is located closer to the normal high-water line or upland edge of a wetland than the principal structure is prohibited, even if the expansion will not increase nonconformity with the water setback requirement. [1999, c. 243, §6 (AMD).]
C. Legally existing nonconforming principal and accessory structures that do not meet the water setback requirements may be expanded or altered as follows, as long as other applicable standards of land use adopted by the municipality are met and the expansion is not prohibited by paragraph A or B.
(1) For structures located less than 75 feet from the normal high-water line or upland edge of a wetland, the maximum combined total floor area for all structures is 1,000 square feet, and the maximum height of any structure is 20 feet or the height of the existing structure, whichever is greater.
(2) For structures located less than 100 feet from the normal high-water line of a great pond classified as GPA or a river flowing to a great pond classified as GPA, the maximum combined total floor area for all structures is 1,500 square feet, and the maximum height of any structure is 25 feet or the height of the existing structure, whichever is greater, except that any portion of those structures located less than 75 feet from the normal high-water line or upland edge of a wetland must meet the floor area and height limits in subparagraph (1).
Existing principal and accessory structures that exceed the floor area or height limits under this paragraph may not be expanded, except as provided in paragraph E.
For the purposes of this paragraph, a basement is not counted toward floor area. [1999, c. 243, §6 (AMD).]
D. When a basement is added to an existing structure or when a basement is constructed as part of a reconstruction or replacement structure, the structure and the basement must be placed so that the setback is met to the greatest practical extent, as determined by the municipal planning board or, if authorized by the municipal planning board, the certified code enforcement officer. [1997, c. 748, §3 (NEW).]
E. A municipality may permit an expansion that causes the maximum floor area limits established in paragraph C to be exceeded by not more than 500 square feet if:
(1) The principal structure is set back at least 50 feet from the normal high-water line or upland edge of a wetland;
(2) An existing well-distributed stand of trees and other vegetation, as defined in the minimum guidelines adopted by the Board of Environmental Protection, extends at least 50 feet inland from the normal high-water line or upland edge of a wetland for the entire width of the property or, if such a stand is not present, a written plan by the property owner to reestablish a buffer of native trees, shrubs and other ground cover within 50 feet of the normal high-water line or upland edge of a wetland is approved by the municipal planning board. The plan must be implemented at the time of construction and must be designed to meet the minimum guidelines adopted by the Board of Environmental Protection as the vegetation matures. Rules adopted pursuant to this subparagraph are routine technical rules pursuant to Title 5, chapter 375, subchapter II-A; and
(3) The municipal planning board approves a written mitigation plan. The plan must be developed, implemented and maintained by the property owner. A mitigation plan must provide for the following mitigation measures.
(a) Unstabilized areas resulting in soil erosion must be mulched, seeded or otherwise stabilized and maintained to prevent further erosion and sedimentation to water bodies and wetlands.
(b) Roofs and associated drainage systems, driveways, parking areas and other nonvegetated surfaces must be designed or modified, as necessary, to prevent concentrated flow of storm water runoff from reaching a water body or wetland. Where possible, runoff must be directed through a vegetated area or infiltrated into the soil through the use of a dry well, stone apron or similar device.
The written plans required pursuant to subparagraphs 2 and 3 must be filed in the registry of deeds of the county in which the property is located.
A copy of all permits issued pursuant to this paragraph must be forwarded by the municipality to the department within 14 days of the issuance of the permit. [1999, c. 243, §7 (AMD).]
[ 1999, c. 243, §§6, 7 (AMD) .]
5. Timber harvesting. Municipal ordinances must regulate timber harvesting within the shoreland area. Notwithstanding any provision in a local ordinance to the contrary, standards for timber harvesting activities may not be less restrictive than the following:
A. Selective cutting of no more than 40% of the trees 4.5 inches or more in diameter, measured at 4 1/2 feet above ground level, in any 10-year period, as long as a well-distributed stand of trees and other natural vegetation remains; [2007, c. 292, §21 (AMD).]
B. Within a shoreland area zoned for resource protection abutting a great pond there may not be timber harvesting within the strip of land extending 75 feet inland from the normal high-water line except to remove safety hazards or if a municipality adopts an ordinance pursuant to this paragraph. A municipality may adopt an ordinance that allows limited timber harvesting within the 75-foot strip in the resource protection zone when the following conditions are met:
(1) The ground is frozen;
(2) There is no resultant soil disturbance;
(3) The removal of trees is accomplished using a cable or boom and there is no entry of tracked or wheeled vehicles into the 75-foot strip of land;
(4) There is no cutting of trees less than 6 inches in diameter; no more than 30% of the trees 6 inches or more in diameter, measured at 4 1/2 feet above ground level, are cut in any 10-year period; and a well-distributed stand of trees and other natural vegetation remains; and
(5) A licensed professional forester has marked the trees to be harvested prior to a permit being issued by the municipality; and [1999, c. 370, §2 (AMD).]
C. Any site within a shoreland area zoned for resource protection abutting a great pond, beyond the 75-foot strip restricted in paragraph B, where timber is harvested must be reforested within 2 growing seasons after the completion of the harvest, according to guidelines adopted by the board. The board shall adopt guidelines consistent with minimum stocking standards established under Title 12, section 8869. [1991, c. 66, Pt. A, §10 (RPR).]
The board may adopt more restrictive guidelines consistent with the purposes of this subchapter that must then be incorporated into local ordinances. Timber harvesting operations exceeding the 40% limitation in paragraph A may be allowed by a planning board upon a clear showing, including a forest management plan signed by a Maine licensed professional forester, that such an exception is necessary for good forest management and is carried out in accordance with the purposes of shoreland zoning. The planning board shall notify the commissioner of each exception allowed.
[ 2007, c. 292, §21 (AMD) .]
6. Clearing of vegetation. Within the shoreland area, municipal ordinances shall provide for effective vegetative screening between buildings and shorelines. Notwithstanding any provision in a local ordinance to the contrary vegetative screening requirements shall be no less restrictive than the following:
A. Within a strip extending 75 feet inland from the normal high-water line, there shall be no cleared opening or openings, except for approved construction, and a well-distributed stand of vegetation shall be retained; [1991, c. 346, §9 (AMD).]
B. Within a shoreland area zoned for resource protection abutting a great pond there shall be no cutting of vegetation within the strip of land extending 75 feet inland from the normal high-water line except to remove safety hazards; and [1991, c. 346, §9 (AMD).]
C. Selective cutting of no more than 40% of the trees 4.5 inches or more in diameter, measured at 4 1/2 feet above ground level, is allowed in any 10-year period, as long as a well-distributed stand of trees and other natural vegetation remains. [2007, c. 292, §22 (AMD).]
The board may adopt more restrictive guidelines consistent with the purposes of this subchapter, which shall then be incorporated into local ordinances.
[ 2007, c. 292, §22 (AMD) .]
7. Special exception. A municipal ordinance adopted pursuant to this article may include a provision for the municipal planning board to issue a permit for construction of a single-family residence in a Resource Protection District if the applicant demonstrates that all of the following conditions are met.
A. There is no location on the property, other than a location within the Resource Protection District, where the structure can be built. [1993, c. 318, §1 (NEW).]
B. The lot on which the structure is proposed is undeveloped and was established and recorded in the registry of deeds of the county in which the lot is located before the adoption of the Resource Protection District. [1993, c. 318, §1 (NEW).]
C. The proposed location of all buildings, sewage disposal systems and other improvements are:
(1) Located on natural ground slopes of less than 20%; and
(2) Located outside the floodway of the 100-year floodplain along rivers and artificially formed great ponds along rivers and outside the velocity zone in areas subject to tides, based on detailed flood insurance studies and as delineated on the Federal Emergency Management Agency's Flood Boundary and Floodway Maps and Flood Insurance Rate Maps; all buildings, including basements, are elevated at least one foot above the 100-year floodplain elevation; and the development is otherwise in compliance with any applicable municipal floodplain ordinance.
If the floodway is not shown on the Federal Emergency Management Agency maps, it is deemed to be 1/2 the width of the 100-year floodplain. For purposes of this subparagraph, "floodway" means the channel of a river or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the water surface elevation more than one foot in height and "velocity zone" means an area of special flood hazard extending from offshore to the inland limit of the primary frontal dune along an open coast and any other area subject to high-velocity wave action from storms or seismic sources. [1993, c. 318, §1 (NEW).]
D. The total ground-floor area of all principal and accessory structures is limited to a maximum of 1,500 square feet. [1993, c. 318, §1 (NEW).]
E. All structures, except functionally water-dependent structures, are set back from the normal high-water line or upland edge of a wetland to the greatest practical extent, but not less than 75 feet. In determining the greatest practical extent, the planning board shall consider the depth of the lot, the slope of the land, the potential for soil erosion, the type and amount of vegetation to be removed, the proposed building site's elevation in regard to the floodplain and its proximity to moderate-value and high-value wetlands. [1993, c. 318, §1 (NEW).]
[ 1993, c. 318, §1 (NEW) .]
8. Archaeological excavation. A permit is not required for an archaeological excavation that is within a shoreland zone as long as the excavation is conducted by an archaeologist listed on the Maine Historic Preservation Commission level 1 or level 2 approved list and unreasonable erosion and sedimentation is prevented by means of adequate and timely temporary and permanent stabilization measures.
[ 2001, c. 207, §1 (NEW) .]
SECTION HISTORY
1987, c. 815, §§7,11 (NEW). 1989, c. 403, §8 (AMD). 1989, c. 803, §1 (AMD). 1989, c. 838, §2 (AMD). 1989, c. 878, §G7 (AMD). 1989, c. 890, §§A40,B47 (AMD). 1991, c. 66, §A10 (AMD). 1991, c. 346, §§7-9 (AMD). 1993, c. 55, §1 (AMD). 1993, c. 318, §1 (AMD). 1993, c. 383, §1 (AMD). 1993, c. 383, §42 (AFF). 1997, c. 726, §3 (AMD). 1997, c. 748, §3 (AMD). 1999, c. 243, §§5-7 (AMD). 1999, c. 370, §2 (AMD). 2001, c. 207, §1 (AMD). 2003, c. 689, §B6 (REV). 2007, c. 292, §§21, 22 (AMD).