An Act To Allow Flexibility under Municipal Shoreland Zoning Ordinances
Maine Legislature, Session 125, LD 0888
Committee: Environment and Natural Resources
Sponsors: CURTIS, WHITTEMORE, CUSHING
Amends: 38 MRSA §439-A

Legislative Document 
No. 888 
H.P. 655 
House of Representatives, March 7, 2011 
An Act To Allow Flexibility under Municipal Shoreland Zoning 
Ordinances 
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative CURTIS of Madison. 
Cosponsored by Senator WHITTEMORE of Somerset and 
Representative: CUSHING of Hampden. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  38 MRSA §439-A, sub-§4, as amended by PL 1997, c. 726, §3, is further 
amended to read: 
4.  Setback requirements.  Notwithstanding any provision in a local ordinance to the 
contrary, all new principal and accessory structures and substantial expansions of such 
structures within the shoreland zone as established by section 435 must meet the water 
setback requirements approved by the board, except functionally water-dependent uses.  
A municipality may adopt as a local ordinance the provisions of this subsection and the 
provisions of subsection 4-A.  For purposes of this subsection, a substantial expansion of 
a building is an expansion that increases either the volume or floor area by 30% or more.  
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 a less than substantial expansion of a legally existing nonconforming 
structure, as long as the expansion does not create further nonconformity with the water 
setback requirement. 
Sec. 2.  38 MRSA §439-A, sub-§4-A, as amended by PL 1999, c. 243, §§6 and 7, 
is further amended to read: 
4-A.  Alternative expansion requirement.  Notwithstanding In addition or as an 
alternative to subsection 4, a municipality may adopt an ordinance pursuant to this 
subsection that permits expansions of principal and accessory structures that do not meet 
the water setback requirements approved by the Board of Environmental Protection if the 
ordinance is no less restrictive than the requirements in this subsection. 
A.  All new principal and accessory structures, excluding functionally water-
dependent uses, must meet the water setback requirements approved by the Board of 
Environmental Protection.  An expansion of a legally existing nonconforming 
structure pursuant to this subsection may not create further nonconformity with the 
water setback requirement. 
B.  Expansion of any portion of a structure within 25 feet of the normal high-water 
line or upland edge of a wetland is prohibited, even if the expansion will not increase 
nonconformity with the water setback requirement.  Expansion of an accessory 
structure that is located closer to the normal high-water line or upland edge of a 
wetland than the principal structure is prohibited, even if the expansion will not 
increase nonconformity with the water setback requirement. 
C.  Legally existing nonconforming principal and accessory structures that do not 
meet the water setback requirements may be expanded or altered as follows, as long 
as other applicable standards of land use adopted by the municipality are met and the 
expansion is not prohibited by paragraph A or B. 
(1)  For structures located less than 75 feet from the normal high-water line or 
upland edge of a wetland, the maximum combined total floor area for all 
structures is 1,000 square feet, and the maximum height of any structure is 20 
feet or the height of the existing structure, whichever is greater. 
(2)  For structures located less than 100 feet from the normal high-water line of a 
great pond classified as GPA or a river flowing to a great pond classified as GPA, 
the maximum combined total floor area for all structures is 1,500 square feet, and 
the maximum height of any structure is 25 feet or the height of the existing 
structure, whichever is greater, except that any portion of those structures located 
less than 75 feet from the normal high-water line or upland edge of a wetland 
must meet the floor area and height limits in subparagraph (1). 
Existing principal and accessory structures that exceed the floor area or height limits 
under this paragraph may not be expanded, except as provided in paragraph E. 
For the purposes of this paragraph, a basement is not counted toward floor area. 
D.  When a basement is added to an existing structure or when a basement is 
constructed as part of a reconstruction or replacement structure, the structure and the 
basement must be placed so that the setback is met to the greatest practical extent, as 
determined by the municipal planning board or, if authorized by the municipal 
planning board, the certified code enforcement officer. 
E.  A municipality may permit an expansion that causes the maximum floor area 
limits established in paragraph C to be exceeded by not more than 500 square feet if: 
(1)  The principal structure is set back at least 50 feet from the normal high-water 
line or upland edge of a wetland; 
(2)  An existing well-distributed stand of trees and other vegetation, as defined in 
the minimum guidelines adopted by the Board of Environmental Protection, 
extends at least 50 feet inland from the normal high-water line or upland edge of 
a wetland for the entire width of the property or, if such a stand is not present, a 
written plan by the property owner to reestablish a buffer of native trees, shrubs 
and other ground cover within 50 feet of the normal high-water line or upland 
edge of a wetland is approved by the municipal planning board.  The plan must 
be implemented at the time of construction and must be designed to meet the 
minimum guidelines adopted by the Board of Environmental Protection as the 
vegetation matures.  Rules adopted pursuant to this subparagraph are routine 
technical rules pursuant to Title 5, chapter 375, subchapter II-A 2-A; and 
(3)  The municipal planning board approves a written mitigation plan.  The plan 
must be developed, implemented and maintained by the property owner.  A 
mitigation plan must provide for the following mitigation measures. 
(a)  Unstabilized areas resulting in soil erosion must be mulched, seeded or 
otherwise stabilized and maintained to prevent further erosion and 
sedimentation to water bodies and wetlands. 
(b)  Roofs and associated drainage systems, driveways, parking areas and 
other nonvegetated surfaces must be designed or modified, as necessary, to 
prevent concentrated flow of storm water runoff from reaching a water body 
or wetland.  Where possible, runoff must be directed through a vegetated area 
or infiltrated into the soil through the use of a dry well, stone apron or similar 
device. 
The written plans required pursuant to subparagraphs 2 and 3 must be filed in the 
registry of deeds of the county in which the property is located. 
A copy of all permits issued pursuant to this paragraph must be forwarded by the 
municipality to the department within 14 days of the issuance of the permit. 
Sec. 3.  38 MRSA §439-A, sub-§4-B is enacted to read: 
4-B.  Legally existing nonconforming structures.  In a municipality that has 
adopted an ordinance under subsections 4 and 4-A, a legally existing nonconforming 
structure may be expanded under only one of the ordinances, except that, if a structure 
has previously been expanded pursuant to an ordinance adopted under subsection 4 and 
the structure's maximum combined floor area is less than the expansion limits of 
subsection 4-A, the maximum combined floor area of that structure may be further 
expanded to the limits provided in an ordinance adopted under subsection 4-A. 
SUMMARY 
The bill allows a municipality to enact in its shoreland zoning ordinance alternative 
provisions to the requirements in the Maine Revised Statutes, Title 38 that limit the 
expansion of a nonconforming structure in a shoreland zone that increases the structure’s 
volume or floor area by 30% or more in addition to the requirements in Title 38.