STATE OF MAINE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
17 STATE HOUSE STATION AUGUSTA, MAINE 04333
BOARD ORDER
IN THE MATTER OF
TOWN OF LUBEC) MANDATORY SHORELAND ZONING ACT
WASHINGTON COUNTY) 38 M.R.S.A., SECTION438-A(4)
STATE-IMPOSED SUPPLEMENTAL) ADOPTION OF ZONING PROVISIONS
SHORELAND ZONING ORDINANCE
CHAPTER 1339
SUMMARY: This Order adopts a Shoreland Zoning Map for the Town of Lubec for areas adjacent to selected freshwater and coastal wetlands and streams to supplement the municipal shoreland zoning ordinance, as adopted on December 30, 1991.
Pursuant to the provisions of 5 M.R.S.A. Section8053, 435 - 449 Section 06 - 096 and CMR, Chapter 1000, State of Maine Guidelines for Municipal Shoreland Zoning Ordinances, as amended August 7, 1994, the Board of Environmental Protection has reviewed the existing land use regualtions relating to the shoreland zone in the municipality of Lubec, and FINDS THE FOLLOWING FACTS:
1. The Mandatory Shoreland Zoning Act (Act) requires all municipalities to establish zoning controls in areas within 250 feet of the normal high water line of great ponds, rivers, and saltwater bodies; within 250 feet of the upland edge of freshwater and coastal wetlands; and within 75 feet of the normal high water line of streams. Such zoning standards must be consistent with or no less restrictive than those in the State of Maine Guidelines for Municipal Shoreland Zoning Ordinances (Guidelines), as adopted by the Board of Environmental Protection (Board).2. The Guidelines were revised by the Board, effective March 24, 1990,and amended on July 14, 1992 and August 7,1994. The revised Guidelines include more stringent land use standards than the Board's earlier Guidelines. In addition, the revised Guidelines contain new zoning and land use provisions for activities in shoreland areas adjacent to streams and freshwater wetlands as required by the Act as amended in January of 1989. Following the Board's revisions to the Guidelines in 1990, the Maine legislature, and the Board as authorized in 38 M.R.S.A. Section438-A(2),established July 1, 1992 as the deadline for local ordinances to be amended consistent with the Guidelines.3.38 M.R.S.A. Section438-A(4) requires the Board to adopt suitable zoning ordinances for municipalities which fail to adopt shoreland zoning ordinances consistent with or no less restrictive than the Guidelines.4. On February 10, 1992, the Department of Environmental Protection (Department) approved the Lubec Shoreland Zoning Ordinance, as adopted on December 30, 1991. At that time, the Department notified the municipal officials that the zoning map, as provided to the Department, failed to identify or establish shoreland districting adjacent to a number of wetlands and streams subject to the municipal ordinance, and as required by the Act. To date, the municipal shoreland zoning map has not been amended to address this issue.5. On November 21, 1994 a draft copy of a supplemental zoning map was forwarded to the municipal officials for comment. The Board also advertised in newspapers of state-wide circulation, its intent to adopt the supplemental zoning map for the municipality. The municipal officials commented that more specific mapping was necessary before the town was prepared to include the wetlands zoning on their local zoning map. The Department believes adequate wetland maps are available. Based on the above Findings of Fact, the Board makes the following CONCLUSIONS:
1. Whereas the deadline has past for municipalities to amend local shoreland zoning ordinances consistent with the Board's Guidelines, and whereas the municipality of Lubec has failed to do so, the Board has the responsibility to adopt suitable ordinance provisions for the municipality.2. The Board can address the identified deficiencies in the Lubec ordinance by adopting a shoreland zoning map to supplement the current municipal ordinance, using the shoreland districting criteria contained in the Guidelines. THEREFORE, THE BOARD HEREBY ORDERS AND ADOPTS for the municipality of Lubec the following provisions:
1. A shoreland zoning map is hereby adopted as a supplement to the Lubec Shoreland Zoning ordinance, as adopted on December 30, 1991. The municipal ordinance provisions applicable to shoreland areas adjacent to the selected freshwater and coastal wetlands and streams shall be administered and enforced according to the shoreland districting identified on that map. This Order shall remain in effect, and shall be binding upon the municipality of Lubec until amended or repealed by the Board, or until the municipality adopts amendments to the shoreland zoning ordinance, consistent with the Board's Guidelines, and is approved by the Commissioner of the Department of Environmental Protection.
DONE AND DATED AT AUGUSTA, MAINE, THIS 25 DAY OF JANUARY, 1995.
BOARD OF ENVIRONMENTAL PROTECTION
BY:_____________________
Owen R. Stevens, Chairman
PLEASE NOTE ATTACHED SHEET FOR GUIDANCE ON APPEAL PROCEDURES
________________________
BASIS STATEMENT
The Mandatory Shoreland Zoning Act, Title 38 section 438-A, requires all municipalities to adopt shoreland zoning provisions for shoreland areas. Shoreland areas include areas within 250 feet of the normal high-water line of tidal waters, great ponds, and rivers; within 250 feet of the upland edge of freshwater and coastal wetlands; and within 75 feet of streams. Section 438-A also requires the Board of Environmental Protection to adopt minimum guidelines for shoreland zoning ordinances. Municipal ordinances must be consistent with or no less restrictive than the Board's guidelines.
In 1990 the Board of Environmental Protection amended its shoreland zoning guidelines and later established July 1, 1992 as the deadline for municipalities to update their local ordinances consistent with the Guidelines. The Mandatory Shoreland Zoning Act requires the Board to adopt suitable ordinances for those municipalities which fail to adopt updated ordinances, This rule adopts a supplemental shoreland zoning ordinance for this municipality to correct deficiencies in the locally adopted ordinance, and make that ordinance consistent with the Board's Guidelines.
Municipal officials commented that more specific mapping was necessary before the town was prepared to include the wetlands zoning on its local zoning map. The Department believes that adequate mapping exists, although site visits may be necessary on a project by project basis.