§ 38 §439-A — Additional municipal powers, limitations

Maine § 38 §439-A

• Jurisdiction: Maine
• Title 38: WATERS AND NAVIGATION
• Ch. 3: PROTECTION AND IMPROVEMENT OF WATERS

Text

1.
Additional controls.
In addition to the ordinances required by this chapter, municipalities may adopt zoning and land use controls applicable to other bodies of water as may be required to protect the public health, safety and general welfare and further the purposes of this article.
2.
Jurisdiction.
Notwithstanding the scope of shoreland areas as identified in section 435, the jurisdiction of municipal shoreland zoning and land use control ordinances adopted under this article may include any structure built on, over or abutting a dock, wharf, pier or other structure extending or located below the normal high-water line or within a wetland. Accordingly, municipalities may enact ordinances affecting structures that extend or are located over the water or are placed on lands lying between high and low waterlines or within wetlands.
3.
Soil evaluation reports.
Any other law notwithstanding, when a zoning ordinance adopted in conformity with this article requires a written report of soil suitability for subsurface waste disposal or commercial or industrial development, that report must be prepared and signed by a duly qualified person who has made an on-the-ground evaluation of the soil properties involved. Persons qualified to prepare these reports must be certified by the Department of Health and Human Services and include Maine State Licensed Soil Scientists, Maine Registered Professional Engineers, Maine State Licensed Geologists and other persons who have training and experience in the recognition and evaluation of soil properties and can provide proof of this training and experience in a manner specified by the Department of Health and Human Services. The Department of Health and Human Services may adopt rules for the purpose of establishing training and experience standards required by this subsection.
4.
Setback requirements.
Notwithstanding any provision in a local ordinance to the contrary and except as provided in this subsection, all new principal and accessory structures and expansions of such structures within the shoreland zone as established by section 435 must meet the water body or wetland setback requirements approved by the board, except functionally water-dependent uses. This subsection is not intended to prohibit a municipal board of appeals from granting a variance, subject to the requirements of this article and Title 30‑A, section 4353, nor is it intended to prohibit an otherwise permissible expansion of a legally existing nonconforming structure, as long as the expansion does not create further nonconformity with the water body or wetland setback requirement.
4-A.
Alternative expansion requirement.
4-B.
Exemption from setback requirements for decks over rivers within a downtown revitalization project.
In accordance with the provisions of this subsection, a municipality may adopt an ordinance that exempts a deck from the water and wetland setback requirements otherwise applicable under this section.
4-C.
Exemption from setback requirements for walkways and trails over rivers within a downtown revitalization project.
In accordance with the provisions of this subsection, a municipality may adopt an ordinance that exempts pedestrian walkways and trails from the water and wetland setback requirements otherwise applicable under this section.
4-D.
Exemption for expansion of an existing restaurant associated with an existing marina.
In accordance with the provisions of this subsection, a municipality may adopt an ordinance that allows the expansion of a restaurant that is part of a marina that has been permitted in accordance with all applicable state and local requirements.
5.
Timber harvesting.
Municipal ordinances must regulate timber harvesting within the shoreland area. Notwithstanding any provision in a local ordinance to the contrary, standards for timber harvesting activities may not be less restrictive than the following:
6.
Clearing of vegetation.
Within the shoreland area, municipal ordinances must provide for effective vegetative screening between buildings and shorelines. Notwithstanding any provision in a local ordinance to the contrary, vegetative screening requirements must be no less restrictive than the following:
6-A.
Clearing of vegetation; exception.
The following exceptions to the standards governing the clearing of vegetation apply.
7.
Special exception.
A municipal ordinance adopted pursuant to this article may include a provision for the municipal planning board to issue a permit for construction of a single-family residence in a Resource Protection District if the applicant demonstrates that all of the following conditions are met.
8.
Archaeological excavation.
A permit is not required for an archaeological excavation that is within a shoreland zone as long as the excavation is conducted by an archaeologist listed on the Maine Historic Preservation Commission level 1 or level 2 approved list and unreasonable erosion and sedimentation is prevented by means of adequate and timely temporary and permanent stabilization measures.
9.
Cupolas.
For the purpose of determining the height of a structure, a municipal ordinance adopted pursuant to this article may exempt a cupola, dome, widow's walk or similar feature added to a legally existing conforming structure if:
10.
Photographic record required.
A municipal ordinance adopted pursuant to this article must require an applicant for a permit for development within the shoreland zone to provide to the municipal permitting authority preconstruction photographs and, no later than 20 days after completion of the development, postconstruction photographs of the shoreline vegetation and development site.

Legislative History

PL 1987, c. 815, §§7,11 (NEW). PL 1989, c. 403, §8 (AMD). PL 1989, c. 803, §1 (AMD). PL 1989, c. 838, §2 (AMD). PL 1989, c. 878, §G7 (AMD). PL 1989, c. 890, §§A40,B47 (AMD). PL 1991, c. 66, §A10 (AMD). PL 1991, c. 346, §§7-9 (AMD). PL 1993, c. 55, §1 (AMD). PL 1993, c. 318, §1 (AMD). PL 1993, c. 383, §1 (AMD). PL 1993, c. 383, §42 (AFF). PL 1997, c. 726, §3 (AMD). PL 1997, c. 748, §3 (AMD). PL 1999, c. 243, §§5-7 (AMD). PL 1999, c. 370, §2 (AMD). PL 2001, c. 207, §1 (AMD). PL 2003, c. 689, §B6 (REV). PL 2007, c. 292, §§21, 22 (AMD). PL 2011, c. 231, §2 (AMD). PL 2013, c. 140, §1 (AMD). PL 2013, c. 231, §§1, 2 (AMD). PL 2013, c. 320, §§8-12 (AMD). PL 2013, c. 588, Pt. A, §48 (AMD). PL 2015, c. 11, §1 (AMD). PL 2019, c. 40, §5 (AMD). PL 2019, c. 285, §14 (AMD). PL 2021, c. 336, §1 (AMD). PL 2021, c. 504, §3 (AMD).