STATE OF MAINE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
17 STATE HOUSE STATION AUGUSTA, MAINE 04333
BOARD ORDER
IN THE MATTER OF
MUNICIPALITY OF FRANKFORT) 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 1295
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 Frankfort, 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 Frankfort has failed to adopt a shoreland zoning ordinance consistent with
the Board's Guidelines within the time-frame established by the Board. As of
January 26, 1994 the municipality of Frankfort 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 Frankfort 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 October 18,
1993 copies of the Guidelines and draft zoning map were forwarded to the
municipality of Frankfort 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. One comment was received regarding a
freshwater wetland. The commentor noted that a particular wetland was no longer
rated as moderate value. The wetland was reevaluated by the Department of
Inland Fisheries and Wildlife and has been reclassified as low value,
Therefore, the Department has changed the designated district around the
wetland to Limited Residential.
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 Frankfort 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 Frankfort, 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. The Board further Orders that the map entitled
Town of Frankfort 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 Frankfort until amended or repealed by the Board, or until
the municipality of Frankfort adopts a shoreland zoning ordinance, consistent
with the Board's Guidelines, and is approved by the Commissioner.
DONE AND DATED AT AUGUSTA, MAINE, THIS 26th DAY OF JANUARY,
1994.
BOARD OF ENVIRONMENTAL PROTECTION
BY: Osmond C. Bonsey for
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
One person noted that a shoreland zone surrounding a wetland
which the Department had proposed to be placed in the Resource Protection
District due to its moderate rating for waterfowl habitat, was reevaluated by
the Department of Inland Fisheries and Wildlife and is now considered to be of
low value. The Department verified the commentor's claim and has changed the
zoning district to Limited Residential.
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, 1992for 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
