C.M.R. 06, 096, ch. 321 - SHORELAND ZONING ORDINANCE FOR MUNICIPALITY OF FREEDOM

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STATE OF MAINE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

17 STATE HOUSE STATION AUGUSTA, MAINE 04333

BOARD ORDER

IN THE MATTER OF

MUNICIPALITY OF FREEDOM) MANDATORY SHORELAND ZONING ACT

WALDO COUNTY, MAINE)

STATE-IMPOSED EMERGENCY RULE

SHORELAND ZONING ORDINANCE

Chapter 321.1: State-imposed Shoreland Zoning Ordinance for the Town of Freedom.

Summary: This rule adopts a Shoreland Zoning Ordinance for the Town of Freedom, pursuant to 8053, 3838 M.R.S.A. Section438-A, and the authority of the B.E.P. to adopt shoreland ordinances for municipalities which fail to adopt suitable shoreland zoning ordinances. This rule replaces the emergency rule, Chapter 321, which became effective October 5, 1990.

This Shoreland Zoning Ordinance will apply to all land areas within 250 feet of the normal high-water line of Sandy Pond; within 250 feet of freshwater wetlands; and within 75 feet of streams as defined in 38 M.R.S.A. Section436-A.

1. Adoption of Ordinance

The Board of Environmental Protection hereby adopts the minimum Ordinance contained in the State of Maine Guidelines For Municipal Shoreland Zoning Ordinances dated March 24, 1990 for the Town of Freedom subject to the following:

A. Conditions

(1) The municipality shall be responsible for administering and enforcing this Ordinance.

(2) The municipality may, at any time, enact its own ordinance which may then be submitted to the Department of Environmental Protection for repeal of the imposition Ordinance by the Board, provided that the Board finds that such ordinance is suitable.

(3) All shoreland within the municipality required by the ACT to be zoned is hereby placed in districts as defined on the official shoreland zoning map adopted by the Board which is part of this Order, and is on file at the Department of Environmental Protection. This Ordinance applies to shoreland adjacent to Sandy Pond and freshwater wetlands and streams as defined in 38 M.R.S.A., Section436-A.

B. Duration

This State-Imposed Ordinance shall remain in effect until amended or repealed by the Board of Environmental Protection.

DONE AND DATED AT AUGUSTA, MAINE, THIS 9 DAY OF JANUARY 1991.

BOARD OF ENVIRONMENTAL PROTECTION

By:

E. Christopher Livesay, Chairman

Effective Date: October 5, 1990 (EMERGENCY)

Effective Date of Permanent Rule: January 27, 1991

(1) The town of Freedom can not document that the municipality has adopted a shoreland zoning ordinance for its shoreland areas which is at least as restrictive as the State of Maine Guidelines for Municipal Shoreland Zoning Ordinances, effective March 24, 1990.

(2) The provisions of the Mandatory Shoreland Zoning and Subdivision Control Act require that, where a municipality fails to adopt a suitable Shoreland Zoning Ordinance, the Board shall adopt an Ordinance for that municipality, which the municipality shall then administer and enforce.

(3) The Board of Environmental Protection has determined that this municipality has failed to adopt a suitable Shoreland Zoning Ordinance for its shoreland as required by the provisions of the Mandatory Shoreland Zoning and Subdivison Control Act.

(4) Whereas this municipality has failed to adopt a suitable municipal zoning ordinance for its shoreland areas, the Board has imposed the State of Maine Guidelines for Municipal Shoreland Zoning Ordinances as amended effective March 24, 1990 on the Town of Freedom.

On October 31, 1990 the Board of Environmental Protection published a Notice of Proposed Rule, Chapter 321.1, State-imposed Shoreland Zoning Ordinance for the Town of Freedom in five Maine daily newspapers, including the Central Maine Morning Sentinel. The notice stated that public comments would be received by the Department of Environmental Protection until 5:00 P.M., December 3, 1990. No written comments were received.

The only comment received was a verbal comment from planning board member, Everett Lingley. Mr. Lingley asked that the zoning district along the outlet of Sandy Pond be changed to the General Develop district to allow commercial businesses to be renewed even if the commercial use was discontinued for more than a year. After pointing out to Mr, Lingley that the existing uses could be renewed under the proposed Limited Commercial district even if discontinued for more than a year, Mr. Lingley was satisfied with the proposed rule.

SUMMARY

Title 38 M.R.S.A., Section438-A(2) requires all municipalities to adopt shoreland zoning ordinances which regulate land use activities within 250 feet of the normal high-water line of ponds, rivers, salt-water bodies, and freshwater and coastal wetlands; and within 75 feet of streams as defined in Section 436-A. The town of Freedom has not adopted a suitable ordinance regulating land use activities in the areas listed above. Title 438-A(4) provides for the Board of Environmental Protection to adopt suitable ordinances for municipalities which fail to do so. The Board of Environmental Protection adopted an emergency shoreland zoning ordinance for the town of Freedom, effective October 5, 1990. That emergency ordinance is valid for only 90 days after its effective date. This ordinance (Chapter 321.1) will replace the emergency ordinance and will remain in effect until amended or rescinded by the Board.

STATE OF MAINE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

17 STATE HOUSE STATION AUGUSTA, MAINE 04333

BOARD ORDER

IN THE MATTER OF

MUNICIPALITY OF FREEDOM) MANDATORY SHORELAND ZONING ACT

WALDO COUNTY, MAINE) 38 M.R.S.A. SECTION438-A(4)

STATE-IMPOSED AMENDMENT OF ZONING MAP

SHORELAND ZONING ORDINANCE

CHAPTER 321.1

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 August 7, 1994, the Board of Environmental Protection has reviewed the shoreland zoning file for the town of Freedom, the existing land use regulations relating to the shoreland zone in the municipality of Freedom, including the State-imposed shoreland zoning ordinance, AND FINDS THE FOLLOWING FACTS:

1. On October 5, 1990 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 Freedom. Such action was necessary after the Department learned that the Town had earlier repealed its shoreland zoning ordinance.

2. The shoreland zoning ordinance adopted for the Town by the Board was amended effective January 17, 1994 to incorporate changes made to the Department's Guidelines after the October 5, 1990 adoption of the state-imposed ordinance. Those changes did not affect the existing zoning map.

3. The shoreland zoning map adopted with the state-imposed shoreland zoning ordinance for Freedom was drafted prior to the availability of the National Wetland Inventory maps which distinguish between forested and non-forested wetlands. Therefore, the zoning map adopted in 1990 for the town of Freedom is outdated. In particular, the sizes, locations, and the shapes of the freshwater wetlands are not as accurate as desired. Furthermore, the map is inconsistent with the remaining state-imposed zoning maps, which were drafted based on available National Wetland Inventory maps.

4. The Department has drafted a revised shoreland zoning map for the town of Freedom. The new map incorporates available information as contained on the National Wetland Inventory maps.

5. The Department accepted written public comments on the draft zoning map until December 15, 1995. No comments regarding this draft map were received.

BASED on the above FINDINGS OF FACT, the Board makes the following CONCLUSIONS:

1. The existing shoreland zoning map for the town of Freedom, which became effective on January 17, 1994 is outdated and is inconsistent with the requirements of the Mandatory ShorelandZoning Act. An updated map, consistent with the Department's Guidelines is available and should replace the existing map for the Town. This updated map adequately addressing the zoning districts for wetland areas.

THEREFORE, THE BOARD HEREBY AMENDS the state-imposed shoreland zoning ordinance for the town of Freedom by repealing the map adopted with the state-imposed ordinance on January 17, 1994 and replacing it with the map entitled Town of Freedom Shoreland Zoning Map, effective date February 15, 1995.

DONE AND DATED AT AUGUSTA, MAINE, THIS 24 DAY OF JANUARY 1996.

BOARD OF ENVIRONMENTAL PROTECTION

By:

Owen R. Stevens, Chairman

BASIS STATEMENT

This rule amends the state-imposed shoreland zoning map for the Town of Freedom. The Mandatory Shoreland Zoning Act, Title 38 Section 438-A, requires the Board of Environmental Protection to adopt suitable ordinances for municipalities which fail to adopt a shoreland zoning ordinance consistent with the Board's Guidelines. The Board adopted an ordinance for the Town of Freedom effective October 5, 1990, which was subsequently amended effective January 17, 1995. Ordinance amendments can only be enacted by the Board.

This amendment will modify the zoning map adjacent to certain freshwater wetlands. At the time of the adoption of the ordinance by the Board in 1990, the National Wetland Inventory Maps were not available. These updated, and more accurate maps, were referenced to better delineate the boundaries of the wetlands and to more accurately define the districts based on those boundaries and the limits of the forested wetland portions of the surrounding shoreland zone.

These new maps more closely follow the zoning criteria as contained in the Board's State of Maine Guidelines for Municipal Shoreland Ordinances.

No comments were received during the written comment period which closed on December 15, 1995 at 5:00P.M.

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

Notes

C.M.R. 06, 096, ch. 321

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