October 7, 2014 at 12:00 am

Shoreland Zoning Rule Changes Coming Soon

Shoreland zoning rule changes at the state level are on the regulatory agenda over the coming months.  Through Maine’s shoreland zoning statute, municipalities are required to adopt and enforce local land use ordinances regulating development in the shoreland zone.  These ordinances, however, are reviewed by the Department of Environmental Protection (“the Department”) before they become effective.  The review criteria are found in the Department’s Chapter 1000: Guidelines for Municipal Shoreland Zoning Ordinances.  The Department is now pursuing a comprehensive set of proposed revisions to these review criteria via the rulemaking process.

On August 27th, the Department published its proposed revisions of Chapter 1000.  These revisions can be found on the Department's website here.  On September 16th, the Department will hold a public hearing to accept comments on these revisions, and will also accept written comments until September 26th.  The day after this rulemaking was published, the Maine Legislature's Environment and Natural Resources Committee held an interim meeting and received a briefing from the Department regarding these proposed revisions.  During the conversation at that meeting, the Department suggested that it may engage in more than one round of public comments before finalizing this rule because of the number and scope of proposed revisions.

These changes have been introduced via three separate avenues: 

(1) A stakeholder process initiated by the Department

Though these proposed changes were just published, some of the concepts in this proposed rulemaking are far from new.  Some changes date back to a Department-led stakeholder process that took place over several months in 2011.  Representatives from MEREDA took part in that initial stakeholder process and have been providing input on the development of some of these concepts since that time. 

(2) Recently enacted legislative changes to the underlying statute

The Department’s proposed rule changes stem from recent statutory changes enacted by the Legislature.  The Department explained to the Environment and Natural Resources Committee that many of the proposed rule changes must be made to align the rules with Maine’s underlying shoreland zoning law, which has been amended numerous times via seven separate legislative enactments over the past few years.

(3) The codification of existing Department interpretations of the underlying statute 

The proposed changes are the result of the Department codifying its own interpretations of the shoreland zoning law.  While the Department does not enforce these local ordinances, Department staff often provide guidance to local code enforcement officers regarding shoreland zoning.  The Department has used this rulemaking as a way to incorporate some of those frequently-requested interpretations directly into the Department’s guidelines in an attempt to provide more clarity to municipalities and landowners. 

The following are a few examples of proposed changes that may be of interest to MEREDA members: 

Stakeholder Group Suggestions

• Defining and detailing permissible removal of “hazard trees”
• Clarifying replanting requirements in the event of “storm-damaged trees”

Response to Legislative Enactments

• Exempting certain brownfields/VRAP projects from the need to comply with vegetation removal standards
• Changing how expansions for nonconforming structures are measured
• Authorizing the use of cantilevered decks over rivers in very specific circumstances
• Eliminating the requirement that local code enforcement officers submit biennial reports to the Department regarding shoreland zoning issues addressed locally

Codification of Department Interpretations

• Expressly exempting ledge and rock outcroppings as nonvegetated surfaces when calculating lot coverage
• Adding clarifying language to Chapter 1000 as it relates to “individual private campsites”
• Exempting the removal of non-native invasive plant species, such as bittersweet and poison ivy, from clearing restrictions within the shoreland zone

MEREDA will continue to closely monitor the development of these proposed revisions and will continue to provide feedback to the Department when appropriate.  Your thoughts and observations regarding these changes can help inform MEREDA’s feedback, so please take a look at the proposed changes and share your thoughts regarding these language changes with either MEREDA, through Shelly Clark, or with the Department.  The Department has recognized that this is not a small matter suitable to the standard notice and comment process.  Rather, the Department has worked diligently to solicit input from stakeholders and has drafted several iterations of this proposal in an attempt to get the revisions “right.”  This sometimes cumbersome process may be the last opportunity for a while to help fine-tune Chapter 1000, so we will not let this opportunity pass us by. 

Categories: Maine Real Estate Insider