An Act Facilitating the Reconstruction or Replacement of Storm-
Maine Legislature, Session 132, LD 2143
Committee: Housing and Economic Development
Sponsors: DAUGHTRY
Amends: 30-A MRSA §4353, 30-A MRSA §4364-A, 30-A MRSA §4364-B

Legislative Document
No. 2143
S.P. 861
In Senate, January 7, 2026
An Act Facilitating the Reconstruction or Replacement of Storm-
damaged Commercial Fisheries Facilities and Infrastructure
(EMERGENCY)
Submitted by the Maine Office of Community Affairs pursuant to Joint Rule 203.
Reference to the Committee on Housing and Economic Development suggested and 
ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by President DAUGHTRY of Cumberland.
Cosponsored by Representative: GOLEK of Harpswell.
Emergency preamble.  Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, as a result of severe storms and flooding, individuals and business owners 
in the State have suffered substantial damage to facilities and infrastructure such as docks, 
piers, wharves, fish houses and other structures traditionally used in support of commercial 
fishery operations and other functionally dependent uses; and
Whereas, severe storms and flooding are likely to recur with climate change and 
rising sea levels; and
Whereas, under certain federal, state and local laws, to lawfully reconstruct or replace 
such damaged facilities and infrastructure, a municipal board of appeals must grant a 
variance from local floodplain management ordinance provisions by finding, among other 
things, that the land in question cannot yield a reasonable return unless the variance is 
granted; and
Whereas, because Maine courts have repeatedly held that mere access to coastal 
waters and the recreational benefits afforded by that access provide property owners with 
a reasonable return on their land, individuals and business owners seeking a variance are 
unlikely to be able to demonstrate a lack of a reasonable return on their land and would 
therefore be unable to reconstruct or replace damaged facilities and infrastructure; and
Whereas, statutory changes are needed to allow boards of appeals authority to grant 
variances to allow individuals and business owners to make necessary repairs to structures 
for a functionally dependent use and to clarify the definition of a functionally dependent 
use in this context; and
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  30-A MRSA §4353, sub-§4, as amended by PL 2013, c. 186, §1, is further 
amended to read:
4.  Variance.  Except as provided in subsections 4‑A, 4‑B and 4‑C and section 4353‑A, 
the board may grant a variance only when strict application of the ordinance to the 
petitioner and the petitioner's property would cause undue hardship.  The term "undue 
hardship" as used in this subsection means:
A.  The Except as provided in subsection 4-D, the land in question can not cannot yield 
a reasonable return unless a variance is granted;
B.  The need for a variance is due to the unique circumstances of the property and not 
to the general conditions in the neighborhood;
C.  The granting of a variance will not alter the essential character of the locality; and
D.  The hardship is not the result of action taken by the applicant petitioner or a prior 
owner.
Under its home rule authority, a municipality may, in a zoning ordinance, adopt additional 
limitations on the granting of a variance, including, but not limited to, a provision that a 
variance may be granted only for a use permitted in a particular zone.
Sec. 2.  30-A MRSA §4353, sub-§4-D is enacted to read:
4-D.  Floodplain reasonable return variance for functionally dependent use.  The 
board may grant a variance from a prohibition on construction seaward of mean high tide 
or requirement to elevate structures above the base flood elevation when placed upon a 
dock, pier or wharf as prescribed in a municipal floodplain management ordinance that is 
filed with the municipality's board of appeals if:
A. The petitioner demonstrates to the board that the petitioner suffered substantial 
damage, as defined in the municipality's floodplain management ordinance, to a dock, 
pier or wharf or a structure placed thereon;
B. The damaged dock, pier or wharf or structure placed thereon identified pursuant to 
paragraph A is proposed to be reconstructed or replaced and be permitted for a 
functionally dependent use as defined in 44 Code of Federal Regulations, Section 59.1; 
and
C. The dock, pier or wharf or structure placed thereon under paragraph B is proposed 
to be elevated or otherwise protected from flood damages to the extent practicable.
A variance granted pursuant to this subsection must be the minimum variance from the 
municipal floodplain management ordinance necessary to afford relief for the functionally 
dependent use.
Sec. 3.  30-A MRSA §4364-A, sub-§5, ¶C, as enacted by PL 2021, c. 672, §5, is 
amended to read:
C.  Establish alternative criteria that are less restrictive than the requirements of 
subsection 4 for the approval of a housing structure only in circumstances in which the 
municipality would be able to provide a variance under section 4353, subsection 4, 
4‑A, 4‑B or, 4‑C or 4-D.  
Sec. 4.  30-A MRSA §4364-B, sub-§8, ¶C, as enacted by PL 2021, c. 672, §6, is 
amended to read:
C.  Establish alternative criteria that are less restrictive than the requirements of 
subsections 4, 5, 6 and 7 for the approval of an accessory dwelling unit only in 
circumstances in which the municipality would be able to provide a variance under 
section 4353, subsection 4, 4‑A, 4‑B or, 4‑C or 4-D.
Emergency clause.  In view of the emergency cited in the preamble, this legislation 
takes effect when approved.
SUMMARY
This bill amends the provisions of law governing a municipal board of appeals' 
authority to issue variances to local ordinances. The bill provides that a petitioner seeking 
a variance from a municipal ordinance to make repairs to the person's dock, pier or wharf 
or structure thereon does not have to meet the requirement that the person's land cannot 
yield a reasonable return unless the variance is granted, as long as the dock, pier or wharf 
or structure thereon sustained substantial damage and is to be reconstructed or replaced for 
a functionally dependent use as defined in 44 Code of Federal Regulations, Section 59.1.