The 2015 Amendments to Mandatory Shoreland Zoning and How They Impact the Expansion of a Non-Conforming Use
The Legislature adopted the Mandatory Shoreland Zoning Act in 1971. The current law requires municipalities to establish land use controls for all “shoreland areas” defined as: “areas within 250 feet of the normal high-water line of any great pond, river or saltwater body, within 250 feet of the upland edge of a coastal wetland, within 250 feet of the upland edge of a freshwater wetland, with limited exceptions or within 75 feet of the high-water line of a stream.” Title 38 M.R.S.A. §435. The statutory standards for Mandatory Shoreland Zoning are located in Title 38 §§435-449.
As of January 26, 2015 – the amendments to the Maine Department of Environmental Protection Chapter 1000 Guidelines for Municipal Shoreland Zoning Ordinances became effective. These changes resulted from legislation passed in 2010, indicating the public desire for more options and to allow for regulations to meet local needs. There is currently no deadline for municipalities to adopt the new standards.
The Department of Environmental Protection does not mandate a form ordinance that municipalities must adopt. Rather, the DEP encourages each municipality to consider how the municipality may tailor the Chapter 1000 Guidelines to meet the needs of the community. The Act articulates minimum guidelines and requires that municipalities adopt ordinances consistent with, or no less stringent than, those minimum guidelines.
The amendments primarily affect the following sections of the Chapter 1000 Guidelines: non-conforming structures; timber harvesting; vegetation; non-vegetated surface; disability variances; definitions; shoreline stabilization; and structures and uses, extending over, or located below, the shoreline.
The hot topic in this group of major changes is the “nonconforming structures” section and how these new provisions will impact an individual’s ability to expand a non-conforming structure on their lakefront (or other shoreland zone) property. A “non-conforming structure” is one that, “does not meet any one or more of following dimensional requirements; setback, height, lot coverage or footprint, but which is allowed solely because it was in lawful existence at the time the Ordinance or subsequent amendments took effect.”
The 2015 amendments regulate expansion of nonconforming structures based on footprint and height. A municipality may choose to limit expansion of a non-conforming structure by footprint by square footage or by percent, therefore it is essential to review local shoreland zoning ordinances before calculating the expansion of a structure. Alternatively, a municipality may amend its Shoreland Zoning Ordinance such that landowners may choose either calculation method.
The Chapter 1000 Guidelines provide for specific expansion provisions that address:
(1) if a legally existing nonconforming principal structure is entirely located less than 25 feet from the normal-high water line of a water body, tributary stream, or upland edge of a wetland. In this case the structure may be expanded such that, “the maximum total footprint for the principal structure may not be expanded to a size greater than 800 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of the principal structure may not be made larger than 15 feet or the height of the existing structure, whichever is greater.” All other applicable municipal land use standards must be met.
(2) all other legally existing nonconforming principal and accessory structures that do not meet the water body, tributary stream, or wetland setback requirements may be expanded or altered as follows, as long as all other applicable municipal land use standards are met:
(i) if located less than 75 feet from the normal high-water line of a water body, tributary stream or upland edge of a wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,000 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of any structure may not be made greater than 20 feet or the height of the existing structure, whichever is greater.
(ii) if 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 GPA, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height may not be made greater than 25 feet or the height of the existing structure, whichever is greater.
The Guidelines provide that in addition to these two standards for expansion of legally nonconforming structures, when the legally nonconforming structure is located within the Resource Protection District and less than 250 feet from the normal high-water line of a water body or the upland edge of a wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet or 30% larger than the footprint that existed at the time the Resource Protection District was established on the lot, whichever is greater.
In order to expand or add to a non-conforming structure, a permit must be obtained from the same permitting authority as that for a new structure. Once an applicant submits a plan to the municipality, an approved plan for expansion or addition must be recorded with the registry of deeds, within 90 days of approval. This plan must provide the details of the expansion project, including: the existing and proposed footprint of the non-conforming structure, the existing and proposed structure height, the footprint of any other structures on the parcel, the shoreland zone boundary and evidence of approval by the municipal review authority.
Additional requirements are articulated regarding foundations, relocation, reconstruction and potential change in use of a non-conforming structure. It is the intent of Ordinances to promote conformity of land uses. Except as provided by Ordinance, a non-conforming condition shall not be permitted to become more non-conforming Additional information on the criteria that a municipality may require under these provisions, is outlined in the Chapter 1000 Guidelines, Section 12 (C)(2)-(4).
For information regarding how the amendments impact ordinance provisions relating to timber harvesting, vegetation, non-vegetated surfaces, disability variances, definitions, shoreline stabilization and structures and uses extending over, or located below, the shoreline please review the Chapter 1000 Guidelines or contact Rudman Winchell at (207) 947-4501.