An Act To Amend the Mandatory Shoreland Zoning Laws
Maine Legislature, Session 126, LD 1490
Committee: Environment and Natural Resources
Sponsors: SHERMAN, WELSH
Amends: 38 MRSA §436-A, 38 MRSA §438-A, 38 MRSA §439-A, 38 MRSA §439-B, 38 MRSA §441

Legislative Document 
No. 1490 
S.P. 555 
In Senate, May 2, 2013 
An Act To Amend the Mandatory Shoreland Zoning Laws 
Submitted by the Department of Environmental Protection pursuant to Joint Rule 204. 
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed. 
DAREK M. GRANT 
Secretary of the Senate 
Presented by Senator SHERMAN of Aroostook. 
Cosponsored by Representative: WELSH of Rockport. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  38 MRSA §436-A, sub-§1-B is enacted to read: 
1-B.  Agriculture.  "Agriculture" means the production, keeping or maintenance for 
sale or lease of plants or animals, including, but not limited to, forages and sod crops, 
grains and seed crops, dairy animals and dairy products, poultry and poultry products, 
livestock, fruits and vegetables and ornamental and greenhouse products.  "Agriculture" 
does not include forest management and timber harvesting activities. 
Sec. 2.  38 MRSA §436-A, sub-§4-A is enacted to read: 
4-A.  Footprint.  "Footprint" means the entire area of ground covered by the 
structures on a premises, including cantilevered or similar overhanging extensions, as 
well as unenclosed structures, such as patios and decks. 
Sec. 3.  38 MRSA §436-A, sub-§6, as amended by PL 1997, c. 726, §1, is further 
amended to read: 
6.  Functionally water-dependent uses.  "Functionally water-dependent uses" 
means those uses that require, for their primary purpose, location on submerged lands or 
that require direct access to, or location in, coastal or inland waters and that can not be 
located away from these waters.  These uses include, but are not limited to, commercial 
and recreational fishing and boating facilities, excluding recreational boat storage 
buildings, finfish and shellfish processing, fish fish-related storage and retail and 
wholesale marketing facilities, waterfront dock and port facilities, shipyards and boat 
building facilities, marinas, navigation aids, basins and channels, retaining walls, 
shoreline structures necessary for erosion control purposes, industrial uses dependent 
upon water-borne transportation or requiring large volumes of cooling or processing 
water that can not reasonably be located or operated at an inland site and uses that 
primarily provide general public access to coastal or inland waters.  Recreational boat 
storage buildings are not considered to be a functionally water-dependent use. 
Sec. 4.  38 MRSA §436-A, sub-§7-A, as enacted by PL 2011, c. 231, §1, is 
amended to read: 
7-A.  Height of a structure.  "Height of a structure" means the vertical distance 
between the mean original grade at the downhill uphill side of the structure, prior to 
construction, and the highest point of the structure, excluding chimneys, steeples, 
antennas and similar appurtenances that have no floor area. 
Sec. 5.  38 MRSA §436-A, sub-§9-A, as enacted by PL 1993, c. 196, §2, is 
amended to read: 
9-A.  Outlet stream.  "Outlet stream" means any perennial or intermittent stream, as 
shown on the most recent edition of a 7.5-minute series or, if not available, a 15-minute 
series topographic map produced by, highest resolution version of the national 
hydrography dataset available from the United States Geological Survey on the website 
of the United States Geological Survey or the national map, that flows from a freshwater 
wetland. 
Sec. 6.  38 MRSA §436-A, sub-§11-A, as amended by PL 1995, c. 92, §1, is 
further amended to read: 
11-A.  Stream.  "Stream" means a free-flowing body of water from the outlet of a 
great pond or the point of confluence of 2 perennial streams as depicted by a solid blue 
line on the most recent edition of a , highest resolution version of the national 
hydrography dataset available from the United States Geological Survey 7.5-minute 
series topographic map or, if not available, a 15-minute series topographic map, on the 
website of the United States Geological Survey or the national map to the point where the 
body of water stream becomes a river or flows to where the stream meets the shoreland 
zone of another water body or wetland within a shoreland area.  When a stream meets the 
shoreland zone of a water body or wetland and a channel forms downstream of the water 
body or wetland as an outlet, that channel is also a stream. 
Sec. 7.  38 MRSA §436-A, sub-§§12 and 13, as enacted by PL 1987, c. 815, §§3 
and 11, are amended to read: 
12.  Structure.  "Structure" means anything built, constructed or erected for the 
support, shelter or enclosure of persons, animals, goods or property of any kind, together 
with and anything constructed or erected with a fixed location on or in the ground, 
exclusive of fences.  "Structure" includes a structure temporarily or permanently located. 
13.  Timber harvesting.  "Timber harvesting" means the cutting and removal of trees 
from their growing site and the attendant operation of cutting and skidding machinery, 
but not the construction or creation of roads timber for the primary purpose of selling or 
processing forest products.  "Timber harvesting" does not include the clearing of land for 
approved construction cutting or removal of vegetation within the shoreland zone when 
associated with any other land use activities. 
Sec. 8.  38 MRSA §438-A, sub-§1-B, ¶A, as enacted by PL 1995, c. 542, §1, is 
amended to read: 
A.    In addition to the notice required by Title 30-A, section 4352, subsection 9, a 
municipality shall provide written notification to landowners whose property is being 
considered by the municipality for placement in a resource protection zone.  
Notification to landowners must be made by first-class mail to the last known 
addresses of the persons against whom property tax on each parcel is assessed.  The 
municipal officers shall prepare and file with the municipal clerk a sworn, notarized 
certificate indicating those persons to whom notice was mailed and at what addresses, 
and when, by whom and from what location notice was mailed.  This certificate 
constitutes prima facie evidence that notice was sent to those persons named in the 
certificate.  The municipality must send notice not later than 14 days before its 
planning board votes to establish it holds a public hearing on adoption or amendment 
of a zoning ordinance or map that places the landowners' property in the resource 
protection zone.  Once a landowner's property has been placed in a resource 
protection zone, individual notice is not required to be sent to the landowner when the 
zoning ordinance or map is later amended in a way that does not affect the inclusion 
of the landowner's property in the resource protection zone. 
Sec. 9.  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 and except as provided in this subsection, 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 body or wetland setback requirements 
approved by the board, except functionally water-dependent uses.  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 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. 
A.  All new principal and accessory structures, excluding functionally water-
dependent uses, must meet the water body or wetland setback requirements approved 
by the board.  An expansion of a legally existing nonconforming structure pursuant to 
this subsection may not create further nonconformity with the water body or wetland 
setback requirement. 
B.  Expansion of any portion of a structure within 25 feet of the normal high-water 
line of a water body or upland edge of a wetland is prohibited, even if the expansion 
will not increase nonconformity with the water body or wetland setback requirement.  
Expansion of an accessory structure that is located closer to the normal high-water 
line of a water body or upland edge of a wetland than the principal structure is 
prohibited, even if the expansion will not increase nonconformity with the water body 
or wetland setback requirement. 
(1)  Notwithstanding this paragraph, if a legally existing nonconforming principal 
structure is entirely located less than 25 feet from the normal high-water line of a 
water body or upland edge of a wetland, that structure may be expanded as 
follows, as long as all other applicable standards of land use adopted by the 
municipality are met and the expansion is not prohibited by paragraph A. 
(a)  The maximum total footprint for the principal structure may not be 
expanded to a size greater than 800 square feet or 30% larger than the 
footprint that existed on January 1, 1989, whichever is greater.  The 
maximum height of the principal structure may not be made greater than 15 
feet or the height of the existing structure, whichever is greater. 
C.  All other legally existing nonconforming principal and accessory structures that 
do not meet the water body or wetland 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 of a 
water body or upland edge of a wetland, the maximum combined total footprint 
for all structures may not be expanded to a size greater than 1,000 square feet or 
30% larger than the footprint that existed on January 1, 1989, whichever is 
greater. The maximum height of any structure may not be made greater than 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 footprint for all structures may not be expanded to 
a size greater than 1,500 square feet or 30% larger than the footprint that existed 
on January 1, 1989, whichever is greater. The maximum height of any structure 
may not be made greater than 25 feet or the height of the existing structure, 
whichever is greater. Any portion of those structures located less than 75 feet 
from the normal high-water line of a water body or upland edge of a wetland 
must meet the footprint and height limits in subparagraph (1). 
(3)  In addition to the limitations in subparagraphs (1) and (2), for structures that 
are legally nonconforming due to their location within the Resource Protection 
District when located at less than 250 feet from the normal high-water line of a 
water body or the upland edge of a wetland, the maximum combined total 
footprint for all structures may not be expanded to a size greater than 1,500 
square feet or 30% larger than the footprint that existed at the time the Resource 
Protection District was established on the lot, whichever is greater.  The 
maximum height of any structure may not be made greater than 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 of a 
water body or upland edge of a wetland must meet the footprint and height limits 
in subparagraph (1). 
D.  As used in this subsection, unless the context otherwise indicates, the following 
terms have the following meanings. 
(1)  "Water body" means a great pond, river or stream. 
(2)  "Wetland" means a coastal wetland or freshwater wetland. 
Plans approved by the municipality for expansions under this subsection must be filed in 
the registry of deeds of the county in which the property is located within 90 days of 
approval. 
Sec. 10.  38 MRSA §439-A, sub-§4-A, as amended by PL 1999, c. 243, §§6 and 
7, is repealed. 
Sec. 11.  38 MRSA §439-A, sub-§6, as amended by PL 2007, c. 292, §22, is 
further amended to read: 
6.  Clearing of vegetation.  Within the shoreland area, municipal ordinances shall 
must provide for effective vegetative screening between buildings and shorelines.  
Notwithstanding any provision in a local ordinance to the contrary vegetative screening 
requirements shall must be no less restrictive than the following: 
A.  Within a strip extending 75 feet inland from the normal high-water line, a well 
distributed stand of trees and other natural vegetation must be retained and there shall 
may be no cleared opening or openings greater than 250 square feet, except for 
approved construction, and a well-distributed stand of vegetation shall be retained 
specifically allowed by municipal ordinance within 75 feet of the normal high-water 
line; 
B.  Within a shoreland area zoned for resource protection abutting a great pond there 
shall may be no cutting of vegetation within the strip of land extending 75 feet inland 
from the normal high-water line except to remove safety hazards; and 
C.  Selective cutting of no more than 40% of the total volume of trees 4.5 4 inches or 
more in diameter, measured at 4 1/2 feet above ground level, is allowed in any 
10-year period, as long as a well-distributed stand of trees and other natural 
vegetation remains except in general development and commercial fisheries and 
maritime activity zones where rules adopted by the board allow for 70% of a lot to be 
covered with nonvegetated surfaces.  Volume may be considered equivalent to basal 
area. 
The board may adopt more restrictive guidelines consistent with the purposes of this 
subchapter, which shall must then be incorporated into local ordinances. 
Sec. 12.  38 MRSA §439-A, sub-§6-A is enacted to read: 
6-A.  Clearing of vegetation; exception.  The standards specified in subsection 6, 
paragraphs A and C do not apply to: 
A.  General development or commercial fisheries and maritime activity zones along 
coastal wetlands that are part of a state or federal brownfields program or a voluntary 
response action program under section 343-E for cleanup of contamination for the 
purpose of redevelopment of the property; 
B.  General development or commercial fisheries and maritime activity zones along 
rivers that do not flow to a great pond classified as GPA under section 465-A that are 
part of a state or federal brownfields program or a voluntary response action program 
under section 343-E for cleanup of contamination for the purpose of redevelopment 
of the property; or 
C.  Land along coastal wetlands or rivers that do not flow to a great pond classified as 
GPA under section 465-A that was historically intensively developed with industrial 
or commercial uses and that is part of a state or federal brownfields program or a 
voluntary response action program under section 343-E for cleanup of contamination 
for the purpose of redeveloment of the property. 
Sec. 13.  38 MRSA §439-A, sub-§7, ¶D, as enacted by PL 1993, c. 318, §1, is 
amended to read: 
D.  The total ground-floor area footprint of all principal and accessory structures is 
limited to a maximum of 1,500 square feet. 
Sec. 14.  38 MRSA §439-B, sub-§3, as enacted by PL 2007, c. 593, §2, is 
repealed and the following enacted in its place: 
3.  Application.  This section does not apply to: 
A.  Activities resulting in less than one cubic yard of earth material being added or 
displaced; 
B.  A person or firm engaged in agriculture or timber harvesting if best management 
practices for erosion and sedimentation control are used; and 
C.  Municipal, state and federal employees engaged in projects associated with that 
employment. 
Sec. 15.  38 MRSA §441, sub-§3, ¶C, as amended by PL 1991, c. 346, §10, is 
further amended to read: 
C.  Keep a complete record of all essential transactions of the office, including 
applications submitted, permits granted or denied, variances granted or denied, 
revocation actions, revocation of permits, appeals, court actions, violations 
investigated, violations found and fees collected.  On a biennial basis, beginning in 
1992, a summary of this record must be submitted by March 1 to the Director of the 
Bureau of Land Quality Control within the Department of Environmental Protection; 
and 
SUMMARY 
This bill makes the following changes to the laws governing mandatory shoreland 
zoning. 
1.  It adds definitions of "agriculture" and "footprint" and changes other definitions. 
2.  It changes the laws regulating the circumstances under which nonconforming 
structures in the shoreland zone may be expanded. 
3.  It amends the standards governing clearing of vegetation to create consistency 
between the statutory provisions and rules and provides an exemption from certain 
standards for remediation activities in specific shoreland zoning districts. 
4.  It exempts a person or firm engaged in agriculture or timber harvesting if best 
management practices for erosion and sedimentation control are used and government 
employees engaged in projects associated with their employment from certain provisions 
of law governing excavation activity in a shoreland zone. 
5.  It eliminates the requirement that a code enforcement officer report essential 
transactions to the Department of Environmental Protection.