STATE OF MAINE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
17 STATE HOUSE STATION AUGUSTA, MAINE 04333
BOARD ORDER
IN THE MATTER OF
MUNICIPALITY OF TROY ) MANDATORY SHORELAND ZONING ACT
WALDO COUNTY, MAINE )
38 M.R.S.A.
SECTION438-A(4)
STATE-IMPOSED ADOPTION OF ZONING PROVISIONS SHORELAND
ZONING ORDINANCE
CHAPTER #1243
Pursuant to the provisions of
5 M.R.S.A. Section 8053,
38 M.R.S.A. Sections 435-44906 - 096 and CMR, Chapter 1000, State
of Maine Guidelines for Municipal Shoreland Zoning Ordinances, as
amended July 14, 1992, the Board of Environmental Protection has reviewed the
existing land use regulations relating to the shoreland zone in the
municipality of Troy, 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 any great pond or river; within 250 feet
of the upland edge of a freshwater wetland; and within 75 feet of the normal
high-water line of a stream. Such zoning standards must be consistent with or
no less stringent 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 again on July 14, 1992. 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. The municipality of Troy has failed to
adopt a shoreland zoning ordinance consistent with the Board's Guidelines
within the time frame established by the Board. As of February 24, 1993 the
municipality of Troy has not revised its shoreland zoning and land use
standards consistent with the Board's Guidelines.
5. The Board can ensure that the municipality
of Troy has adequate shoreland zoning and land use provisions for all shoreland
areas within the municipality by adapting the Board's Guidelines ordinance and
an appropriate zoning map based on the districting criteria contained in the
Guidelines, for the municipality.
6. On October 26, 1992 copies of the
Guidelines and draft zoning map were forwarded to the municipality of Troy for
public comment. The Board also advertised in newspapers of state-wide
circulation, its intent to adopt the Guidelines and zoning map for the
Municipality.
7. On November 24,
1992 the
Department held a public meeting at the Troy Municipal Building to
discuss the proposed ordinance. Based on comments at the public meeting and
from other written comments received, the proposed zoning map was revised. The
revisions include; the addition of Stream Protection district zoning along
Martin Stream and the outlet of Carlton Pond, and the modification of
freshwater wetlands boundaries to exclude certain forested wetlands and
portions of forested wetlands.
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 Troy has failed to do so, the Board has a responsibility to
adopt a suitable ordinance for the Municipality.
2. The Board can adopt a suitable ordinance
for the Municipality by adopting the provisions contained in the
State of Maine Guidelines for Municipal Shoreland Zoning
Ordinances, as amended July 14, 1992, with an appropriate zoning
map based on the districting criteria contained in the Guidelines.
THEREFORE, THE BOARD HEREBY ORDERS AND ADOPTS for the
municipality of Troy, all of the provisions contained in the State
of Maine Guidelines for Municipal Shoreland Zoning Ordinances, as
amended July 14, 1992, for all areas within 250 feet, horizontal distance, of
the normal high-water line of any great pond or river; within 250 feet,
horizontal distance, of the upland edge of any freshwater wetland; and within
75 feet, horizontal distance, of the normal high-water line of all streams, as
defined in 38 M.R.S.A. Section436. The Board further Orders that the map
entitled Town of Troy Shoreland Zoning Map, adopted by the Board of
Environmental Protection is hereby incorporated into the
Ordinance.
This ORDER shall remain in effect, and shall be binding upon
the municipality of Troy until amended or repealed by the Board, or until the
municipality of Troy adopts a shoreland zoning ordinance, consistent with the
Board's Guidelines, and is approved by the Commissioner.
DONE AND DATED AT AUGUSTA, MAINE, THIS 10 DAY OF MARCH
1993.
BOARD OF ENVIRONMENTAL PROTECTION
By:_____________________
Owen 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 25 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 suitable ordinance for this municipality since
it failed to update its ordinance as required.
The Department held a public meeting on the proposed State
Imposed Shoreland Zoning Ordinance for the Town of Troy on November 24, 1992 at
the Troy Town Office. The meeting focused on freshwater wetlands zoning,
particularly as related to forested/non-forested wetlands. Two land owners
indicated that wetlands shown of the Department's draft shoreland zoning map
were forested and should not be included on the map. The Department visited the
two sites in question, finding that one (#204) was indeed a forested wetland.
The other (#308) had small portions of forested wetland, but
did not contain enough area of forested wetland to remove the wetland from the
map. The draft map was further modified after comparing wetland boundaries with
those shown on the National Wetlands Inventory maps.
At the meeting, it was also noted that additional Stream
Protection districts were required adjacent to portions of Martin Stream, and
the outlet stream of Carlton Pond. Those changes have been made to the
map.
STATE OF MAINE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE HOUSE STATION 17 AUGUSTA, MAINE 04333
BOARD ORDER
IN THE MATTER OF
AMENDMENT TO STATE-IMPOSED MANDATORY SHORELAND ZONING
ACT
SHORELAND ZONING ORDINANCE
38 M.R.S.A.,
SECTION438-A
FILE #BEP-B-94
Pursuant to the provisions of the Mandatory Shoreland Zoning
Act,
38 M.R.S.A.,
Sections435 -
449, and 06
- 096 CMR, Chapter 1000, State of Maine Guidelines for Municipal
Shoreland Zoning Ordinances (Guidelines), effective August 7,
1994, the Board of Environmental Protection (Board) has considered the
shoreland zoning ordinances for the municipalities listed in Appendix A
(attached) and FINDS THE FOLLOWING FACTS:
1. Since 1974, the Mandatory Shoreland Zoning
Act (MSZA) has required all municipalities to establish zoning and land use
controls in areas located within 250 feet of the normal high water line of any
great pond, river or saltwater body. In 1989, that requirement was expanded to
also include areas within 250 feet of the upland edge of freshwater and coastal
wetlands, and within 75 feet of the normal high water line of
streams.
2. The Board establishes
minimum guidelines for the local land use control ordinances. The MSZA
authorizes the Board to establish a deadline for municipalities to adopt local
ordinances consistent with the Guidelines and the purposes of the MSZA. The
MSZA also authorizes the Board to adopt shoreland zoning ordinances for those
municipalities which fail to adopt a suitable local ordinance.
3. On March 24, 1990, the Board
of Environmental Protection amended the Guidelines. The Board also established
July 1, 1992 as the deadline for amending local ordinances consistent with the
Guidelines. The municipalities listed in Appendix A did not meet the July 1
deadline, resulting in the Board adopting the State of Maine
Guidelines for Municipal Shoreland Zoning Ordinances, including
amendments which became effective on July 14, 1992, for those
municipalities. Those state-imposed ordinances can only be amended by the
Board.
4. Additional amendments
were made to the Guidelines effective August 7, 1994. It is the responsibility
of the Board to amend the state-imposed ordinances for the municipalities
listed in Appendix A, in order to make those ordinances consistent with the
current Guidelines.
5. The August
7, 1994 amendments as listed in Appendix B, and made part of this Order,
include provisions which allow :
A. The
issuance of a special exception permit by the planning board, for a single
family residence in a resource protection district under certain limited
conditions.
B. Conversion of
seasonal residences in a Resource Protection District.
C. Subsurface sewage disposal systems in a
Resource Protection District for uses allowed in that district.
D. Existing road culverts to be replaced
without the need for a permit, regardless of the diameter of the replacement
culvert; and
E. The applicability
of the shoreland zoning ordinance to structures built in, on, or over a water
body or wetland but not attached to the shoreline.
6. Amendments referred to in paragraphs A. ,
B. , C. , D. above, result in a relaxation of the Guideline standards.
Paragraph E. requires additional permitting activities, whereas that paragraph
establishes a greater area of jurisdiction.
7. No written comments were received during a
written comment period which ended on December 1, 1994.
BASED on the above Findings of Fact, the Board makes the
following CONCLUSIONS:
1.
The municipalities listed in Appendix A (attached) are subject to a
state-imposed shoreland zoning ordinance consisting of the
State of
Maine Guidelines for Municipal Shoreland Zoning Ordinances,
effective July 14, 1992. It is the Board's responsibility to amend the existing
state-imposed ordinances, consistent with the August 7, 1994 amended
Guidelines. However, the Guideline amendment which broadens the scope of the
shoreland zone to include structures located beyond the normal highwater line,
is not a mandatory requirement and should not be imposed
upon the municipalities listed in Appendix A.
THEREFORE, the Board hereby AMENDS the State-imposed Shoreland
Zoning Ordinances for the municipalities listed in Appendix A (attached), by
adopting as the text of the ordinance, the State of Maine
Guidelines for Municipal Shoreland Zoning Ordinances, effective
August 7, 1994, except that the ordinance shall not apply to those structures
located beyond (waterward) the normal high water line or upland edge of a
wetland.
DONE AND DATED AT AUGUSTA, MAINE, THIS 14 DAY OF December,
1994.
BOARD OF ENVIRONMENTAL PROTECTION
BY:________________________
Owen R. Stevens, Chairman
