BORAD ORDER
IN THE MATTER OF
MUNICIPALITY OF STEUBEN) MANDATORY SHORELAND ZONING ACT
WASHINGTON COUNTY, MAINE)
38 M.R.S.A.
SECTION438-A(4)
STATE-IMPOSED AMENDMENT OF ZONING MAP
SHORELAND ZONING ORDINANCE
CHAPTER #1262
Pursuant to the provisions of
5 M.R.S.A.
Sections8051 -
8064, 38 M. R.S.A.
Sections 435-44906 - 096 and CMR, Chapter 1000, State of Maine
Guidelines for Municipal Shoreland Zoning Ordinances, as amended May
1, 2006, the Board of Environmental Protection ("Board") has reviewed the
existing land use regulations relating to the shoreland zone in the
municipality of Steuben, and FINDS THE FOLLOWING FACTS:
1. On October 4, 1993 the Board of
Environmental Protection adopted the State of Maine Guidelines for
Municipal Shoreland Zoning Ordinances and a shoreland zoning map for
the town of Steuben pursuant to 38 M.R.S.A. Section438-A(4). Such action was
necessary after the Town failed to adopt a suitable ordinance as required. The
Ordinance was subsequently amended by the Board on December 14, 1994 (text
amendment). A map amendment was approved by the Board with the effective date
of October 24, 2007.
2. In August
of 2007, Mark Richmond of Dyer Harbor, LLC, petitioned the Department of
Environmental Protection to rezone an area on the north side of a small cove
off Dyer Harbor in Steuben. The area is currently zoned as a Resource
Protection district. The landowner, however, seeks to have the area zoned as a
Limited Residential.
3. The area
subject to the rezoning request includes portions of lots 5 through 9 in the
"Tide Mill at Dyer Harbor" subdivision approved by the Town of Steuben. Dyer
Harbor, LLC developed the subdivision.
4. The Resource Protection zoning was
implemented on lots 5 through 9 due to the area's inclusion in a "Special Flood
Hazard Area" on the Federal Emergency Management Agency's (FEMA) Flood
Insurance Rate Map. The developer has obtained a Letter of Map Amendment from
FEMA for the entire subdivision land, effectively removing the area from the
Special Flood Hazard designation.
5. Department staff visited the site on
November 29, 2006. On site, staff noted that all 9 lots of the "Tide Mill at
Dyer Harbor" subdivision are currently undeveloped. All lots consist of low
vegetation, primarily wild blueberry bushes, with a few scattered trees. The
coastal wetland adjacent to lots 5 through 9 consists of mainly tidal mud
flats. A tributary stream with associated wetland vegetation forms a boundary
of the ninth lot. There is no mapped Significant Wildlife Habitat located on or
adjacent to any of these subdivision lots.
6. A public comment period was provided in
order for the abutters, town officials and other interested parties to comment
on the proposed zoning change. A copy of the draft order was sent to the Town
of Steuben and all abutting property owners. The public comment period extended
until May 16, 2008 at 5:00 p.m. No comments were received during the comment
period.
BASED on the above FINDINGS OF FACT, the Board concludes that
the proposed zoning change is consistent with the Department's State of
Maine Guidelines for Municipal Shoreland Zoning Ordinances.
THEREFORE, THE BOARD HEREBY AMENDS the official shoreland
zoning map, adopted as part of the State-imposed Shoreland Zoning Ordinance for
the municipality of Steuben, by rezoning lots 5 through 9 of the "Tide Mill at
Dyer Harbor" Subdivision on the north side of a small cove off Dyer Harbor in
Steuben into Limited Residential zoning.
This ORDER shall remain in effect, and shall be binding upon
the municipality of Steuben until amended or repealed by the "Board", or until
the municipality of Steuben adopts a shoreland zoning ordinance, consistent
with the "Board's Guidelines, and is approved by the Commissioner.
DONE AND DATED AT AUGUSTA, MAINE, THIS 3rd DAY OF July,
2008.
BOARD OF ENVIRONMENTAL PROTECTION
BY:___________________________
Ernest W. Hilton, Chairman
PLEASE NOTE ATTACHED SHEET FOR GUIDANCE ON APPEAL
PROCEDURES
STATE OF MAINE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
17 STATE HOUSE STATION AUGUSTA, MAINE 04333
BOARD ORDER
IN THE MATTER OF
MUNICIPALITY OF STEUBEN) MANDATORY SHORELAND ZONING ACT
WASHINGTON COUNTY, MAINE)
38 M.R.S.A.
SECTION438-A(4)
STATE-IMPOSED ADOPTION OF ZONING PROVISIONS
SHORELAND ZONING ORDINANCE
CHAPTER #1262
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
Steuben, 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, river or saltwater body;
within 250 feet of the upland edge of a coastal or freshwater wetland; and
within 75 feet of the normal highwater 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
coastal 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 Steuben has failed to adopt a shoreland zoning ordinance consistent with the
Board's Guidelines within the time frame established by the Board. As of August
25, 1993 the municipality of Steuben 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 Steuben has adequate shoreland zoning and land use provisions for all
shoreland areas within the municipality by adopting the Board's Guidelines
ordinance and an appropriate zoning map based on the districting criteria
contained in the Guidelines, for the municipality.
6. On April 21, 1993 copies of the Guidelines
and draft zoning map were forwarded to the municipality of Steuben 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. Comments
were received by the public and town officials relating primarily to flood
plain issues and issues relating to existing development patterns. Department
staff conducted two public meetings and made site visits to numerous locations
to resolve the issues raised during the comment period. The town also requested
that the planning board be designated as the sole permitting authority in the
shoreland zone due to the part-time status of the code enforcement officer. The
Department believes the town's permitting request is reasonable.
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 Steuben
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. It is reasonable, however, for the planning board to issue all
permits in the shoreland zone as requested by the selectmen.
THEREFORE, THE BOARD HEREBY ORDERS AND ADOPTS for
the municipality of Steuben, 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, river or
saltwater body; within 250 feet, horizontal distance, of the upland edge of any
coastal or 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,
except that all required permits shall be issued by the planning board. The
Board further Orders that the map entitled Town of Steuben Shoreland
Zoning Map, adopted by the Board of Environmenta1 Protection is hereby
incorporated into the Ordinance.
This ORDER shall remain in effect, and shall be binding upon
the municipality of Steuben until amended or repealed by the Board, or until
the municipality of Steuben adopts a shoreland zoning ordinance, consistent
with the Board's Guidelines, and is approved by the Commissioner.
DONE AND DATED AT AUGUSTA, MAINE, THIS 25 DAY OF AUGUST
1993.
BOARD OF ENVIRONMENTAL PROTECTION
BY: ______________________
Owen R. Stevens, Chairman
________________________
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 suitable ordinance for this municipality
consistent with the Board's Guidelines.
The Department received numerous comments from the Steuben
planning board and the public. Specific comments from the planning board
included a request to allow home occupations in the Limited Residential
district and the Limited Commercial district without a permit, and a request to
allow residential uses in the Commercial Fisheries/Maritime Activities
district. The Department can not incorporate these requests into the
state-imposed ordinance since both are issues which would cause that ordinance
to become less restrictive than the Board's Guidelines.
The town also requested that all permitting activities be
conducted through the planning board rather than the code enforcement officer.
The request is based on the fact that the town's code enforcement officer is
not a full-time position and does not have the time to review all of the permit
applications. The Department believes that that request is reasonable and has
made that change in the state-imposed ordinance.
Several comments received related to areas shown on the Federal
Emergency Management Agency's flood plain maps. Site visits were made to the
areas in question and the zoning map was amended where it appeared that the
land in question was not in the 100-year flood plain.
Another issue which arose in several comments was that certain
areas which had been designated on the draft map as a Resource Protection
district were already developed and should be placed in the district most
related to the type of development which currently existed. Site visits were
made to those sites and where development was present the map was amended
accordingly.
Finally, several amendments were made to the draft zoning map
when certain landowners argued that their sites were either suitable for or
contained existing commercial activities. In those cases the land was removed
from the Limited Residential or Resource Protection districts and placed into
the Limited Commercial district.
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
