An Act To Amend the Sand Dune Laws
Maine Legislature, Session 121, LD 1276
Committee: Natural Resources
Sponsors: LEMOINE, KANE
Amends: 38 MRSA §480-B, 38 MRSA §480-C, 38 MRSA §480-Q, 38 MRSA §480-W

12lst MAINE LEGISLATURE 
Legislative Document 
No. 1276 
H.P.948 
House of Representatives, March 11,2003 
An Act To Amend the Sand Dune Laws 
Reference to the Committee on Natural Resources suggested and ordered printed. 
/y/~/J1·771~ 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative LEMOINE of Old Orchard Beach . 
Cosponsored by Representative KANE of Saco. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. I. 38 MRSA §480-B, sub-§I, as amended by PL 1997, c. 603, 
§l, is repealed and the following enacted in its place: 
1. 
COastal sand dune systems. 
"Coastal sand dune systems" 
means sand and gravel deposits within a marine beach system, 
including, but not limited to, beach berms, frontal dunes, dune 
ridges, back dunes and other sand and gravel areas deposited by 
wave or wind action. 
Coastal sand dune systems may extend into 
coastal wetlands. 
"Coastal sand dune systems" includes dunes 
that have been artificially created, dunes that have been altered 
by development activity and dunes suppor'ted by sand fencing or 
stabilization structures. 
Coastal sand dune systems naturally 
migrate 
landward 
through 
the 
process 
of 
overwash. 
For 
the 
purposes of this definition, a small windblown accumulation of 
sand within a street is not considered a dune. 
Sec. 2. 38 MRS A §480-B, sub-§§I-A to 1-0 are enacted to read: 
I-A. 
A-zone. 
"A-zone" 
means 
an area of special 
flood 
hazard that is subject to a l'lt, or greater chance of flooding in 
any given year. 
I-B. 
B-zone. 
"B-zone" means the area between the landward 
boundary of an A-zone and the presumed high-water mark of a 
500-year 
flood. 
This 
zone 
also 
includes 
areas 
of 
100-year 
shallow flooding where water depths are less than one foot or the 
flooded area is less than one acre. 
I-C. 
Back dunes. 
"Back dunes" means sand dunes and eolian 
sand flats that lie landward of the frontal dune or a low-energy 
beach. 
Back dunes include those areas containing artificial fill 
over back dune sands or over wetlands adj acent to the coastal 
sand dune system. 
I-D. 
Beach. 
"Beach" means the zone of unconsolidated sand 
or gravel that extends landward from the mean low-water line to 
the seaward toe of a dune. 
"Beach" includes the beach face and 
berm. 
I-E. 
Beach face. 
"Beach face" 
means the portion of 
a 
foreshore that lies nearest to the sea and regularly receives the 
swash of breaking waves. 
The beach face is the steepest part of 
the foreshore. 
I-F. 
Beach 
nourishJnent. 
"Beach 
nourishment" 
means 
the 
artificial addition of sand or gravel to a beach or subtidal area 
adjacent to a beach. 
Page l-LR0349(1) 
G. 
Sera. 
"Berm" means the flat or gently sloping area 
between the high-tide limit and the frontal dune. 
R. 
Building. 
"Building" 
means 
a 
roofed 
structure 
designed for habitation, shelter, storage or use as a gathering 
place. 
For 
the 
purposes 
of 
this article 
a 
foundation 
is 
considered to be a 
part of a building. 
A building may also 
include a porch attached to the exterior walls of the building. 
1-1. 
Building's value. 
"Building's yalue" means: 
A. 
The assessed value of a building as established by the 
municipality where the building is located and adjusted by 
the State's certified ratio as applied to the municipality 
on the date that the application for a permit is accepted 
for processing by the department or, if the application is 
received after the work to the building has begun, the date 
the work was started: or 
B. 
The appraised value of a building as established by an 
appraised market value assessment completed by a certified 
appraiser chosen by the State within 5 years prior to the 
date that the application for 
a 
permit is accepted for 
processing by the department or, if the application for a 
permit is received after the work to the building has begun, 
the date the work was started. 
1-J. 
Closed fence. 
"Closed fence" 
means 
a 
fence that 
effectively blocks the movement of wind, water or sand. 
I-It. 
Development. 
"Development" means the alteration of 
property for 
human 
use, 
including, 
but not limited to, 
the 
creation or alternation of buildings, decks, driveways, parking 
areas, lawns, landscaped areas, areas of nonnative vegetation and 
any 
other 
appurtenant 
facilities, 
but 
excluding 
temporary 
structures. 
1-L. 
Dune grass. 
"Dune grass" 
means 
a 
grass species 
native to coastal sand dune systems with the scientific name 
Ammophila brevi1igulata and 
commonly referred to as 
American 
beach grass. 
I-H. 
Dune 
restoration. 
"Dune 
restoration" 
means 
restoration of a natural or artificially constructed dune through 
the addition of sand and planting of dune vegetation. 
I-B. 
Dune vegetation. 
"Dune vegetation" means a natural 
dune plant community, including, but not limited to, dune grass, 
rugosa rose, bayberry, beach pea, beach heather and pitCh pine. 
1-0. 
Erosion hazard area. 
"Erosion hazard area" means any 
portion of the coastal sand dune system that can reasonably be 
expected to become part of a coastal wetland in the next 100 
years due to cumulative changes in the shoreline from: 
A. 
Long-term erosion: 
B. 
Short-term erosion resulting from a 100-year storm: or 
C. 
Flooding from a 100-year storm after a 2-foot rise in 
sea level. 
1-P. 
Essential habitat. 
"Essential habitat" means an area 
currently 
or 
historically 
providing 
physical 
or 
biological 
features 
essential 
to 
the 
conservation of 
an 
endangered or 
threatened species in the State and which may require special 
management consideration. 
Sec.3. 38 MRSA §480-B, sub-§§2-E to 2-H are enacted to read: 
2-E. 
FEMA. 
"FEMA" means the 
Federal Emergency Management 
Agency. 
2-F. 
500-year flood. 
"500-year flood" means the estimated 
probability of a flood event happening in any given year. 
2-G. 
Footprint. 
"Footprint" means the outline that would 
be created on the ground by extending the exterior walls of a 
building to 
the 
ground 
surface. 
For 
the 
purposes 
of 
this 
article. a porch is not considered when determining a building's 
footprint. 
2-B. 
Foundation. 
"Foundation" 
means 
the 
portion of 
a 
structure that transmits the 
loads of the structure to the 
ground. 
including. 
but 
not 
limited 
to. 
spread 
footings. 
foundation walls. posts. piers. piles. beams. girders. structural 
slabs. bracings and associated connectors. 
Sec. 4. 38 MRSA §480-B, sub-§4-A is enacted to read: 
<I-A. 
Frontal dune. 
"Frontal dune" means the most seaward 
ridge of sand and includes former frontal dune areas modified by 
development. 
When 
the dune has been altered from 
a 
natural 
condition. the dune position may be inferred from the present 
beach profile. dune positions along the shore and regional trends 
in dune width. 
The frontal dune mayor may not be vegetated with 
natural flora and may consist in part or in whole of artificial 
• 
.. 
fill. 
In areas where smaller ridges of sand are forming in front 
of an established dune ridge. the frontal dune mro" include more 
than one ridge. 
Sec. 5. 38 MRSA §480-B, sub-§§5-B to 5-D are enacted to read: 
8. 
Lot. 
"Lot" means all contiguous areas under a single 
ownership constituting a piece of land measured and marked by 
metes and bounds descriptions or by some other approyed suryeying 
technique. 
C. 
Maintenance 
and repair. 
"Maintenance 
and 
repair" 
means 
work done to less than 
50~ of a 
structure to preyent 
decline. to hold or preserve it in an existing state or condition 
or to restore it to sound condition after damage or decay • 
D. 
Rational Geodetic Vertical DatUlft or RGYD. 
"National 
Geodetic Vertical Datum" or "NGVD" means the base elevation point 
from which land measurements are derived. 
Sec. 6. 38 MRSA §480-B, sub-§§6-A to 6-C are enacted to read: 
A. 
Ocean storm. 
"Ocean 
storm" 
means 
a 
low-pressure 
system often accompanied by flooding or erosion of the coastal 
sand dune system. 
6-8. 
Open fence. 
"Open fence" means a fence through which 
water. wind and sand can easily moye. 
6-C. 
Overwash. 
"Overwash" means the deposit left after a 
highwater pulse over tops or breaches the dune line of a barrier 
beach. 
Sec. 7. 38 MRSA §480-B, sub-§7, as amended by PL 1999, c. 243, 
§11, is repealed and the following enacted in its place: 
7. 
Permanent structure. 
"Permanent structure" means any 
structure 
constructed 
or 
erected with 
a 
fixed 
location 
or 
attached to 
a 
structure with a 
fixed location for 
a 
period 
exceeding 7 months each year. 
"Permanent structure" includes. 
but is not limited to: causeways. piers. docks. concrete slabs. 
piles. 
marinas. 
retaining 
walls. 
buildings. 
swimming 
pools. 
fences. seawalls. roads. driveways. parking areas and walkways. 
Natural features. 
such as frontal 
dunes. 
are not considered 
permanent structures. 
For 
the purposes of this article the 
following are not considered to be permanent structures: 
A. 
Open decks that do not exceed a total of 200 square feet 
that are supported by posts and are eleyated at least 3 
feet above existing grade to allow unobstructed flow of 
sand, wind and water and are not located in a V-zone: and 
B. 
One storage shed per lot that does not exceed 100 square 
feet. as long as it is not located in a V-Zone and is not 
converted to a habitable structure. 
Sec. 8. 38 MRSA §480-B, sub-§§7-A and 7-B are enacted to read: 
7-A. 
Post. 
"Post" means any piling or column support that 
allows water and sand to move freely underneath the structure and 
that is adequate to provide a foundation for the structure it 
supports. 
"Post" does not include a frost wall or breakaway 
foundation construction. 
7-B. 
Project. 
"Project" 
means 
any 
activity 
that 
is 
regulated pursuant to this article and is located in the coastal 
sand dune system. 
Sec. 9. 38 MRSA §480-B, sub-§§8-B to 8-D are enacted to read: 
8-B. 
Reconstruction. 
"Reconstruction" 
means 
any 
rehabilitation, replacement or other building improvement that 
costs more than 50% of the building's before reconstruction. 
8-C. 
Seawall. 
"Seawall" means a vertical wall or other 
sloped barrier that separates land from water areas, 
commonly 
constructed out of rocks, wood, concrete or similar materials, 
generally built for 
the purpose of protecting structures or 
property from shoreline erosion caused by wave or current action. 
8-D. 
Severe damage. 
"Severe damage" means damage for which 
repair or replacement costs exceed 50% of a building's value. 
Sec. 10. 38 MRSA §480-B, sub-§§11 to 14 are enacted to read: 
11. 
Temporary structure. 
"Temporary structure" 
means 
a 
structure that is intended for seasonal use and in place for 7 
months or less each year. 
12. 
V-zone. 
"V-zone" means an area of special flood hazard 
that is subject to a 
1% or greater chance of flooding in any 
given year, and subject to additional hazard from high-yeloci ty 
water due to wave action. 
13. 
Wave rUDup level. 
"Wave runup level" means the amount 
of 
wave 
run"p 
that 
is 
the 
vertical 
distance 
between 
the 
• 
maximum height on the beach the rush of water reaches and the 
still water level. 
14. 
X zone. 
"X zone" means an area between an A-zone and 
the presumed high water mark of a 500 year flood. 
This zone also 
includes areas of 100 year shallow flooding where water depths 
are less than one foot or the flooded area is less than one acre 
in size. 
Sec. II. 38 MRSA §480-C, sub-§4 is enacted to read: 
4. 
Reyiew not required. 
This subsection clarifies which 
activities in coastal sand dune systems do not require approval 
pursuant to this article. 
A. 
The following activities have minimal impact and do not 
require a permit under subsection 2: 
(1) Construction of a walkway or path on an area of a 
lot that has already been developed: 
(2) 
Removal of debris from a beach, as long as little 
or no sand is removed with the debris: 
(3) 
The addition of lOam, up to 3 inches in depth, to 
maintain an existing lawn: 
(4) 
Removal 
of 
sand 
from 
lawns, 
walkways, 
roads, 
driveways, parking areas and buildings, as long as the 
sand is placed back into the coastal sand dune system 
without disturbing beach vegetation. 
Sand placed on 
the beach must be spread out to a height no greater 
than 3 inches above the existing beach grade: 
(5) The placement of an open fence in the coastal sand 
dune 
system 
to 
keep 
pedestrian 
traffic 
off 
dune 
vegetation or away from shore bird nesting or breeding 
areas; 
(6) 
The 
replacement of an existing partial or full 
foundation 
with 
a 
post 
or 
piling 
foundation 
that 
complies 
with 
the 
requirements 
of 
section 
480-AA, 
subsection 
and 
section 
480-BB, 
subsection 
and 
allows for the free movement of sand and water and 
remains in the existing footprint; and 
(7) 
Construction of a municipal sewer or storm water 
outfall pipe that is buried and that has 
received 
approval 
from the department under 
department rule, 
including appurtenant structures that might be located 
in an upland area. 
B. 
Construction of a temporary structure does not reguire a 
permit. 
Sec. 12. 38 MRSA §480-Q, sub-§2, 1I11C and D, as repealed and 
replaced by PL 1995, c. 27, §l, are amended to read: 
C. 
There is no additional intrusion into the protected 
natural resource; aae 
D. 
The dimensions of the repaired structure do not exceed 
the dimensions of the structure as it existed 24 months 
prior to the repair, or if the structure has been officially 
included 
in 
or 
is 
considered 
by 
the 
Maine 
Historical 
Preservation Commission eligible for listing in the National 
Register of Historic Places, the dimensions of the repaired 
structure do 
not exceed the dimensions 
of 
the historic 
structure ... ~ 
Sec. 13. 38 MRSA §480-Q, sub-§2, 1IE is enacted to read: 
E. 
The foundation type and the dimensions of the foundation 
remain the same. 
Sec. 14. 38 MRSA § 480-Q, sub-§26 is enacted to read: 
26. 
Underground storage tank. 
The maintenance and repair 
are to an underground storage tank in any area regulated by this 
article. 
Sec. 15. 38 MRSA §480-W, as enacted by PL 1995, c. 230, §l, 
is repealed. 
Sec. 16. 38 MRSA §§480-AA to 480-EE are enacted to read: 
§480-AA. 
Standards for all projects 
1. 
Time frame for building reconstruction. 
All building 
reconstruction that does not gualify as maintenance and repair 
under section 480-B, subsection 5-C and section 480-0, subsection 
reguires a permit. 
The building to be reconstructed must exist 
on the date an application for such a permit is accepted for 
processing by the department or must have lawfully existed within 
one year of the date an application is accepted for processing by 
the department. 
2. 
Development on individual lots. 
Development 
on 
an 
individual lot is restricted by this subsection. 
• 
A. 
No more than 40% of a lot may be covered by development, 
including land area previously developed. 
Lawns and other 
areas filled for landscaping are considered development and 
must be included in the development calculations. 
B. 
When development that exists or did exist within one 
year 
of the date that the application is accepted for 
processing 
by 
the 
department 
pursuant 
to 
subsection 
exceeds 
40% 
of 
the 
total lot area, 
the 
percentage 
of 
developed area may not be increased. 
c. 
Land area within the v zone may not be included as part 
of a lot for the purposes of this section. 
D. 
A building may not be constructed so that any part 
extends seaward of a line drawn between the seaward-most 
points 
of 
buildings 
on 
adjacent 
properties 
when 
the 
construction would significantly obstruct the view from an 
adjacent building. 
3. 
Shoreline changes within 100 years. 
A project may not 
be permitted pursuant to subsection 1 if. within 100 years, the 
property may reasonably be expected to be eroded as a result of 
changes in the shoreline so that the project is likely to be 
severely damaged after allowing for a 2-foot rise in sea level 
over 100 years. 
Beach nourishment and dune restoration projects 
are excluded from this requirement. 
4. 
Building size restrictions. 
A building greater than 35 
feet in height or covering a 
ground area greater than 2,500 
square feet may not be constructed in a coastal sand dune system 
unless 
the applicant for 
a 
permit pursuant to subsection 
demonstrates by clear and convincing evidence that the site will 
remain stable after allowing for a 2-foot rise in sea level over 
years. 
Reliance upon an existing seawall is not sufficient 
as 
evidence of site stability. 
An 
existing building may be 
elevated on a post or pile foundation to exceed 35 feet for the 
sole purpose of meeting the elevation requirements in section 
480-BB, subsection 5 and section 480-CC, subsection 3 without the 
need to 
demonstrate 
that 
the site will 
remain stable after 
allowing for sea level rise. 
When determining the height of the building, the measurement is 
taken from the existing, 
lowest natural elevation within the 
building's 
footprint if the 
lot is 
undeveloped, 
the 
lowest 
natural elevation measured 5 feet from the corners of an existing 
building's foundation or the elevation used by the municipali ty 
when determining compliance with local ordinances. 
5. 
Seawalls. 
A new seawall may not be constructed. 
An 
existing seawall 
may not be 
expanded or 
replaced except 
as 
provided under department rule. 
6. 
Designated essential habitat and significant wildlife 
habitat. 
A 
project 
may 
not 
unreasonably 
harm 
designated 
essential habitat or significant wildlife habitat within the 
coastal sand dune system. 
A project located partially or wholly 
within an area designated as essential habitat must obtain an 
essential habitat 
evaluation 
from 
the 
Department 
of 
Inland 
Fisheries and Wildlife. 
7. 
Fences. 
To allow for the movement of sand and water, a 
closed fence may not be placed in any A-zone, B-zone, V-zone or 
X-zone. 
8. 
Legal access. 
A project may not unreasonably interfere 
with legal access to or use of public resources. 
9. 
Restoration of disturbed areas. 
All areas disturbed in 
violation of subsection 3 must be returned to their original 
condition within one year after completion of construction. 
§480-BB. 
Standards for frontal dune projects 
1. General standards. 
Each frontal dune project must meet 
the standards for all projects listed in section 480-AA. 
2. 
Rew construction on frontal dunes. 
A new structure or 
addition to an existing structure may not be constructed on or 
seaward of a frontal dune with the exception of the following: 
A. 
An elevated boardwalk constructed perpendicular to the 
beach face, open fences, walkways and driveways; 
B. 
A fire escape constructed on an existing building or 
structure as required by local fire codes; 
C. 
A 
ramP 
that 
is 
required 
for 
compliance 
with 
the 
requirements of the Americans with Disabilities Act, as long 
as the building served by the ramp meets those requirements, 
and a public ramp providing access to a beach: 
D. 
The construction of vertical building additions and the 
addition of dormers as long as: 
(1) 
The addition does not extend horizontally beyond 
the footprint covered by the existing building: 
• 
(2) 
The 
addition does 
not increase the building's 
total height to greater than 35 feet above the lowest 
natural elevation measured 5 feet from the corners of 
the existing building foundation or the elevation used 
by the municipality when determining compliance with 
local ordinances; and 
(3) 
The building is not a garage or a storage shed: and 
E. 
Notwithstanding subsection 3, the construction of a new 
building or buildings on an undeveloped lot as long as the 
following requirements are met. 
These requirements do not 
apply to a lot vacant due to demolition or destruction of 
buildings after August 1, 1983. 
(1) 
The undeveloped lot was a deeded lot of record as 
of August 1, 1983. 
(2) 
The adjacent lot on each side of the undeveloped 
lot, along the length of the frontal dune, contains a 
residential building that is located within 100 feet of 
the lot line of the vacant lot. 
In order to qualify 
for this exception, the residential buildings on the 
adjacent lots must have been in existence on January 1, 
2003. 
(3) 
Development 
on 
the 
undeveloped 
lot 
is 
not 
precluded 
by 
any 
other 
federal, 
state 
or 
local 
requirements. 
(4) 
All available variances of municipal regulations 
that would allow the project to proceed in compliance 
with the standards in section 480-CC have been ruled 
upon and rejected by the municipality. 
(5) 
Any building on the undeveloped lot is constructed 
at the greatest distance possible from the beach face, 
as determined by the department. 
(6) 
The total area covered by a building or buildings 
does 
not 
exceed 
20% 
of 
the 
total 
area 
of 
the 
undeveloped lot. 
Up to 500 sguare feet of additional 
development may occur on the undeveloped lot in order 
to provide parking and access, including access for the 
purposes of meeting requirements established by the 
Americans with Disabilities Act. 
(7) 
Any building is elevated on posts as described in 
subsection 5. 
(8) 
As 
a 
condition of any construction under this 
subsection, 
the 
department 
may 
reguire 
sand 
dune 
mitigation 
and 
enhancement 
measures, 
including 
restoring the dune topography and elevating the crest 
of the sand dune to the 100-year flood or wave runup 
level, and any enhancement with native vegetation of 
the portions of the lot not covered by buildings or 
parking areas that the department reguires. 
3. 
Construction in V-zone. 
A new structure or addition to 
an existing structure may not be constructed in a V-zone except 
for 
open fences 
and fire escapes as reguired by local fire 
codes. 
A building in a V-zone may not be reconstructed unless 
one or more of the following standards, 
in addition to the 
standards 
in 
subsection 
and 
section 
480-AA, 
are 
met 
as 
determined by the department. 
A. 
The building was involuntarily destroyed by fire or some 
other force other than wave action from an ocean storm and 
the reconstructed building does not exceed the dimensions of 
the previously existing building, except that the building's 
height may be increased to meet the standards in subsection 
5. 
The reconstructed building must be in the same location 
or 
a 
location 
no 
further 
seaward 
than 
the 
previously 
existing building and must have the same size footprint. 
B. 
The building is located in a V-zone first designated 
after 
January 
1, 
1999 
by 
FEMA 
for 
the 
National 
Flood 
Insurance Plan. 
c. 
The building was involuntarily destroyed by wave action 
from an ocean storm and the reconstructed building does not 
exceed the dimensions of the previoUSly existing building 
except that the building's height may be increased to meet 
the standards in subsection 5. 
The reconstructed building 
must be in the 
Same 
location or 
a 
location no 
farther 
seaward than the previously existing building and must have 
the same size footprint. 
A 
building 
that 
is 
reconstructed 
in 
accordance 
with 
this 
subsection may not be reconstructed more than once. 
4. 
Reconstructed 
buildings. 
A 
building 
may 
be 
reconstructed in the 
Same 
location or 
a 
location no farther 
seaward 
than 
the 
previously 
existing 
building. 
The 
reconstruction of the building may not increase the footprint of 
the building. 
A reconstructed building may not exceed the height 
or dimensions of the previoUSly existing building unless the 
project also constructs a vertical addition that meets all the 
• 
• 
reguirements 
of 
subsection 
2, 
paragraph 
D 
or 
elevates 
the 
building to meet the reguirements of subsection 5. 
5. 
Sand and water movement. 
To allow for the movement of 
sand 
and 
water 
and 
future 
shoreline 
changes, 
all buildings 
modified or reconstructed pursuant to subsection 2, paragraph D 
or subsection 4, except for detached buildings that are used as 
storage sheds, 
public bathhouses 
and garages, 
must have 
the 
lowest portion of the structural members of the lowest floor 
constructed on 
a 
post or piling foundation, 
and be elevated 
either: 
A. 
Three feet above the highest existing elevation within 
the building's footprint or the highest natural elevation 
measured 5 feet from the corners of the existing building 
foundation; or 
B. 
To 
the 
elevation 
reguired 
in 
the 
local 
municipal 
floodplain ordinance, whichever is greater. 
The post or piling foundation may be enclosed with latticework or 
similar material through which water. wind and sand can easily 
move. 
§480-CC. 
Standards for back dune projects 
1. 
General standards. 
Each back dune project must meet the 
standards for all projects listed in section 480-AA. 
2. 
Development on individual lots. 
No more than 20% of the 
total area of a lot may be covered by buildings. 
If building 
coverage exceeds 20% of the total area on the date an application 
is accepted for processing by the department pursuant to section 
480-AA, subsection 1. or did exceed 20% of the total lot area 
within one year of the date that an application is accepted for 
processing by the department, the percentage of area covered by 
buildings may not be increased. 
3. 
Unstable back dune areas. 
Certain back dune areas may 
be identified by the department as erosion hazard areas. 
New 
buildings, 
additions 
to 
existing buildings 
and 
reconstructed 
buildings located in those areas must meet the standards of 
section 480-BB, subsection 5. 
§480-DD. 
Variances 
1. 
Variance. 
The department may grant a 
variance from 
section 480-AA, subsection 2, paragraph C and 480-BB, subsections 
and 3 in whole or in part for the construction of a building on 
a previously undeveloped lot under single ownership. 
A. 
An applicant pursuant to section 480-AA, subsection 1 is 
eligible for a variance pursuant to this section if the 
applicant meets one of the 2 qualifying conditions below. 
(1) 
A court has determined that the denial of a permit 
under this section would constitute a constitutional 
taking of property; or 
( 2) 
The department finds that str ict application of 
the standard from which a 
variance is sought would 
result in undue hardship. 
The department may find that 
undue hardship exists only when: 
(a) 
The 
undeveloped lot was 
a 
deeded lot of 
record as of August 1, 1983; 
(b) 
The property can not be put to a reasonable 
economic use unless 
a 
variance is granted. 
In 
making this determination, 
the department shall 
consider evidence of the value of the property 
when it was purchased or acquired, the reasonable 
expectations 
of 
the 
applicant 
for 
use 
of 
the 
property when it was purchased or acquired and the 
value and possible uses of the property without 
the requested variance: 
(c) 
The hardship is not the result of action 
taken by the applicant or a prior owner; and 
(d) 
There 
are 
no 
practicable 
measures 
or 
alternatives 
that 
would 
allow 
the 
project 
to 
proceed in compliance with the standard from which 
a 
variance 
is 
sought. 
The 
applicant 
shall 
demonstrate that the applicant has explored all 
alternatives 
that 
would 
allow 
the 
project 
to 
proceed in compliance with the standard from which 
a 
variance is sought and shall explain to the 
satisfaction 
of 
the 
department 
why 
each 
such 
alternative is unavailable or unreasonable. 
B. 
After 
an 
applicant 
pursuant 
to 
subsection 
480-AA, 
subsection 1 has demonstrated that the applicant is eligible 
for a variance under paragraph A, the applicant shall also 
demonstrate 
that 
the 
proposed 
project 
meets 
both 
the 
applicable standards of sections 480-AA and 480-BB of this 
chapter, for which a variance is not being granted, and the 
following standards. 
The following standards are intended 
to help minimize the impact on protected natural resources. 
Page l3-LR0349(1) 
-
• 
.. 
(1) 
The 
proposed building 
must 
be 
built at 
the 
location on the lot that is the greatest distance 
reasonably possible from the beach face, as determined 
by the department. 
(2) 
The proposed building must be elevated on posts as 
described in section 480-66, subsection 5. 
(3) 
The total area covered by 
a 
building may not 
exceed 20% of the total area of the undeveloped lot. Up 
to 500 square feet of additional development may occur 
on the undeveloped lot in order to provide parking and 
access, including access for the purposes of meeting 
requirements 
established 
by 
the 
Americans 
with 
Disabilities Act . 
As 
a 
condition 
for 
the 
issuance 
of 
a 
variance, 
the 
department may require sand dune mitigation and enhancement 
measures. 
Sand dune mitigation and enhancement measures 
include 
activities 
such 
as 
restoration 
of 
the 
dune 
topography, including the elevation of the crestline to the 
100-year 
flood 
or 
wave 
runup 
level, 
and provisions 
to 
enhance with native vegetation the portions of the lot not 
covered by buildings or parking areas. Sand dune mitigation 
and enhancement measures must be completed and adequately 
maintained if required by the department. 
C. 
A variance may not be granted under this section when a 
permit has been granted under this variance provision for 
the same deeded lot if the previously permitted building on 
the lot was destroyed by the encroachment of water or an 
ocean storm. 
A variance may 
not be granted under this 
section if the building was previously reconstructed as 
pursuant to section 480-66, subsection 3, paragraph A. 
D. 
In addition to the notice requirements determined by 
rule, any person applying for a variance under this section 
must send a notice of intent to file the application by 
certified mail to any person who owns land located within 
feet of the boundary of the property to be developed. 
2. 
Variance from sand and water movement. 
The department 
may grant a variance from section 480-66, subsection 5 if the 
department determines that the following condition has been met. 
A. 
The department finds that strict application of the 
standard contained in section 480-66, 
subsection 5 would 
result in undue hardship. 
The department may find that 
undue hardship exists only when: 
(1) 
The hardship is not the result of action taken by 
the applicant or a prior owner: and 
(2) 
There are no practicable measures or alternatives 
that would allow the project to proceed in compliance 
with section 480-BB, subsection 5. 
The applicant must 
demonstrate 
that 
the 
applicant 
has 
explored 
all 
alternatives that would allow the project to proceed in 
compliance with section 480-BB, subsection 5 and must 
explain to the satisfaction of the department why each 
such alternative is unavailable or unreasonable. 
§480-EE. 
Standard conditions of permits 
The 
following 
standard conditions 
apply 
to 
any 
permits 
granted under this article unless the permit specifically states 
otherwise. 
1. 
Shoreline recession. 
If the shoreline recedes so that a 
coastal wetland, as defined under section 480-B, subsection 2, 
extends to any part of the structure, including support posts but 
excluding seawalls, for a period of 6 months or more, then the 
approved structure along with appurtenant facilities must 
be 
removed and the site must be restored to natural conditions 
within one year. 
2. 
Removing debris. 
Any 
debris or other 
remains 
from 
damaged structures on the property must be 
removed 
from the 
coastal sand dune system. 
3. 
Batural 
dune 
vegetation. 
The 
permit 
holder 
shall 
restore any disturbed areas of natural dune vegetation as quickly 
as possible. 
4. 
Approval of variations from plans. 
The granting of a 
permit is dependent upon and limited to the proposals and plans 
contained in the application and supporting documents submitted 
by the applicant. 
Any variation from these plans, proposals and 
supporting documents is subject to review and approval prior to 
implementation. 
5. 
COlbpliance with all applicable laws. 
The permit holder 
shall secure and comply with all applicable federal, state and 
local licenses, permits, authorizations, conditions, agreements 
and orders prior to or during construction and operation, 
as 
appropriate. 
6. 
COlbpliance with all permit terms and conditions. 
The 
permit holder shall submit all reports and information requested 
by the department. demonstrating that the applicant has complied 
Page l5-LR0349(1) 
-
or will comply with all terms and conditions of this permit. 
All 
preconstruction 
terms 
and 
conditions 
must 
be 
met 
before 
construction begins. 
7. 
Initiation of activity within 2 years. 
If construction 
or operation of the activity is not begun within 2 years of the 
issuance of the permit, the permit lapses and the applicant must 
reapply 
for 
a 
new 
permit. 
The 
applicant 
may 
not 
begin 
construction or operation of the activity until a new permit is 
granted. 
Reapplications for permits must state the reasons why 
the activity was not begun within 2 years from the granting of 
the initial permit and the reasons why the applicant will be able 
to begin the activity within 2 years from the granting of a new 
permit. if so granted. 
Reapplication for permits may include 
information submitted in the initial application by reference but 
must include documentation of any changes on the site. 
8. 
Reexamination after 5 years. 
If the approved activity 
is not completed within 5 years from the date of the granting of 
a permit. the department may reexamine its permit approval and 
impose additional terms or conditions to respond to significant 
changes in circumstances or to bring the approved activity into 
compliance with current legal requirements. 
9. 
Permit included in contract bids. 
A copy of the permit 
must 
be 
included 
in 
or 
attached 
to 
all 
contract 
bid 
specifications for the approved activity. 
10. 
Permit shown to contractor. 
Work done by a contractor 
pursuant to the permit may not begin before the applicant has 
shown the contractor a copy of the permit. 
SUMMARY 
This bill amends the laws regulating construction on sand 
dunes.