STATE OF MAINE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
17 STATE HOUSE STATION AUGUSTA, MAINE 04333
BOARD ORDER
IN THE MATTER OF
MUNICIPALITY OF CARTHAGE) MANDATORY SHORELAND ZONING
ACT
FRANKLIN COUNTY, MAINE)
38 M.R.S.A.
SECTION438-A(4)
STATE-IMPOSED ADOPTION OF ZONING PROVISIONS
SHORELAND ZONING ORDINANCE
CHAPTER 1292
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 MunicipalShoreland Zoning Ordinances, as
amended July14, 1992, the Board of Environmental Protection has reviewed the
existing land use regulations relating to theshoreland zone in the Municipality
of Carthage and FINDS THE FOLLLOWING FACTS:
1. The MandatoryShoreland 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
MunicipalShoreland 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 inshoreland 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 July1, 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 adoptshoreland zoning ordinances consistent with
or no less restrictive than the Guidelines.
4. The municipality of Carthage has failed to
adopt ashoreland zoning ordinance consistent with the Board's Guidelines within
the time-frame established by the Board. As of February 23, 1994 the
municipality of Carthage has not revised itsshoreland zoning and land use
standards consistent with the Board's Guidelines.
5. The Board can ensure that the municipality
of Carthage has adequateshoreland zoning and land use provisions for
allshoreland areas within the municipality by adopting the Board's Guidelines
ordinance and an appropriate zoning nap based on the districting criteria
contained in the Guidelines, for the municipality.
6. On October 18, 1993 copies of the
Guidelines and draft zoning map were forwarded to the municipality of Carthage
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. Based on the comments received, several areas were removed from
the Resource Protection District to reflect existing development. Also, the
area adjacent to Podunk Pond was placed in the Resource Protection District
because it serves as a municipal water supply.
BASED on the above FINDINGS OF FACT, the Board makes the
following CONCLUSIONS:
1. Whereas the
deadline has past for municipalities to amend localshoreland zoning ordinances
consistent with the Board's Guidelines, and whereas the municipality of
Carthage 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 MunicipalShoreland 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 Carthage, all of the provisions contained in the
State of Maine Guidelines forShoreland 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 CarthageShoreland
Zoning Map. adopted by the Board of Environmental
Protection is hereby incorporated into the ordinance, The adoption
of this order hereby repeals the State-imposedshoreland zoning ordinance,
Chapter 41, adopted for the Municipality on June 13, 1979.
This ORDER shall remain in effect, and shall be binding upon
the municipality of Carthage until amended or repealed by the Board, or until
the municipality of Carthage adopts ashoreland zoning ordinance, consistent
with the Board's Guidelines, and is approved by the commissioner.
DONE AND DATED AT AUGUSTA, MAINE, THIS 9th DAY OF MARCH,
1994.
BOARD OF ENVIRONMENTAL PROTECTION
BY: ______________________
Owen R. Stevens, Chairman
___________________
BASIS STATEMENT
The MandatoryShoreland Zoning Act, Title 38 section 438-A,
requires all municipalities to adoptshoreland zoning provisions forshoreland
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 forshoreland 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
itsshoreland zoning guidelines and later established July 1,1992 as the
deadline for municipalities to update their local ordinances consistent with
the guidelines. The MandatoryShoreland 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, and repeals the state-imposedshoreland
zoning ordinance, Chapter 41, adopted June 13, 1979 by the Board of
Environmental Protection and the Land Use Regulation Commission.
Town officials requested that Podunk Pond be zoned for Resource
Protection because the pond served as a drinking water source for the town of
Weld. That request was granted.
The town officials also requested that three locations along
the Webb River north ofDurgin Brook be changed from the Resource Protection
District to the Limited Residential District, due to existing development.
Finally, at the request of the selectmen, a portion of theshoreland zone
located northwest of Route 142 nearHanscom Brook, was removed from the Resource
Protection District. The selectmen stated that the elevation of the land in
that area did not warrant the more restrictive zoning 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 MandatoryShoreland Zoning
Act,
38 M.R.S.A.,
Sections435 -
449, and 06
- 096 CMR, Chapter 1000, State of Maine Guidelines for
MunicipalShoreland Zoning Ordinances (Guidelines), effective
August 7, 1994, the Board of Environmental Protection (Board) has considered
theshoreland zoning ordinances for the municipalities listed in Appendix A
(attached) and FINDS THE FOLLOWING FACTS:
1. Since 1974, the MandatoryShoreland 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 adoptshoreland 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 MunicipalShoreland 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 theshoreland 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-imposedshoreland zoning ordinance consisting of the
State of
Maine Guidelines for MunicipalShoreland 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
theshoreland zone to include structures located beyond the normalhighwater
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-imposedShoreland
Zoning Ordinances for the municipalities listed in Appendix A (attached), by
adopting as the text of the ordinance, the State of Maine
Guidelines for MunicipalShoreland 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
