Downeast Coastal Press
September 19, 2006
Addison Selectmen Hear about New 250-Foot Setback Rule
Town Officials Encourage Wider Presentation/Discussion on New Restrictions and Their Implication for Property Owners, Future Growth, Taxes
By Fred Hastings
Municipal officials in several Downeast coastal towns learned only this month about a new state law (LD 1981) that went into effect June 8 restricting new development within 250 feet of a shoreline designated by state agencies as "shorebird areas."
In an effort to learn more about the new regulation and its ramifications, municipal officials in Lubec held a public informational meeting August 31 (see Downeast Coastal Press, September 12, 2006) and Milbridge officials September 12. Addison is the latest to address the new law-one with potentially far-reaching effects and poised to reignite state versus local control issues and pit environmentalists against defenders of property rights.
Although LD 1981 applies statewide, because of the greater amount of undeveloped shoreline in Washington County, it has wider repercussions Down East than on the southern or midcoast, according to Addison Planning Board member William Moore, who briefed his town's selectmen at their September 13 meeting.
"It's been a challenge trying to understand the new law," he said. "We've been working a lot of different angles trying to figure it out." Representatives of state agencies, he said, despite the apparent significance of the legislation, have not been proactive in informing town planners of it, answering questions only when asked, he said, and suggesting the onus was on town officials to learn about the law and respond to queries about it.
Moore said he invited representatives from the state, with whom he's had extensive conversations, to join him at last week's meeting in Addison, and although they indicated they might, no one attended. They did attend meetings in Lubec and Milbridge earlier.
The Department of Inland Fisheries & Wildlife's (IF&W) Jonesboro office made available some prepared handouts, which Moore distributed, addressing what technically is described as a "Review of Portions of Chapter 335: Significant Wildlife Habitat, a Major Substantive Rule of the Department of Environmental Protection."
With phrases such as "Upland areas treated as Resource Protection (for now)" and "More info and guidance to come," the fact sheets raise as many questions as answers. The handouts did not include standards used to define the various areas or the science, but they did invite interested parties to contact state agencies to learn more about the new rules.
From his research, Moore, citing state documents, said the law puts new requirements immediately into place and includes additional changes scheduled to take effect later. His key findings:
- The new "shorebird areas" designation effectively extends resource protection zones (RPZ) under another name and with the same effect to other areas of the town.
- The Department of Environmental Protection, rather than the town, has jurisdiction over the new areas, which requires that applications for building permits first be made to the DEP before going to the town's planning board. In some cases, permits will also be subject to review by the IF&W. Any building permits awarded by the town since June 8 that are in one of the new "shorebird areas" are in violation, he said, since no one knew the DEP now had authority over them.
- The 250-foot setback for shorebird areas will be extended in 2008 to additional upland areas designated for other conservation purposes, such as "waterfowl wader habitat."
Given the extent of the various areas, ranging from RPZs to shorebird areas, to eagle nesting sites, to wading bird habitat, deer wintering areas, vernal pools and other designations, as revealed in maps prepared by the state, the cumulative land-mass expanse of the various land-use restrictions that are being put into effect incrementally will affect some 90 percent of Addison landowners, according to Moore.
The new regulation discourages or prohibits new development on the one hand, which would add to the town's base, while lowering the market value of existing property because of the restrictions on what owners can do with it. "It should affect the town's tax base a good deal," said Moore, a real estate agent. He expected the town to be hit with a number of tax abatement requests, owners asking that assessments on their property be lowered to reflect the diminished market value.
Because the property tax commitment to fund schools, the county and town services cannot be expected to decline but continue to increase, said Moore, once the full effect of the new law is felt, it will force a big jump in the town's mil rate. "By a magnitude of three or four times after 2008," he estimated.
According to Billy Milliken, a Jonesport real estate agent who attended the Addison meeting, the new rules also affect property owners who already have homes in the restricted areas. Although they are grandfathered and their owners cannot be forced to remove them, they are technically in noncompliance and subject to rules that may limit what the owner can do with the property, such as making improvements or expanding the structure.
"What's a real estate agent going to do?" asked a selectman after Moore's presentation.
"Go to Florida. Find another job. There definitely won't be much growth and development," he replied.
First Selectman Michael Murphy recommended that Addison property owners be apprised of the new regulations and that members of the county legislative delegation be contacted for assistance in learning more about them.
LD 1981: Maine Audubon a Major Supporter, Advocate
Although the new state law LD 1981 has many town planners and selectmen scratching their heads and playing catch-up to understand just what it means and portends for the future of their towns, there is no confusion about the genesis of it.
Introduced as emergency legislation to amend the Natural Resources Protection Act, Significant Wildlife Habitat Rule, Chapter 335, the bill came out of the Natural Resources Committee co-chaired by Rep. Ted Koffman (D-Bar Harbor), an administrator at the College of the Atlantic with a long association with Maine Audubon. It also had the backing of the Natural Resources Council of Maine and other environmental groups. It won near-unanimous approval with little scrutiny or debate from members of the House and was passed without a roll-call vote in the Senate.
"In closing," testified Jody Jones of the Maine Audubon Society before the legislative committee on February 14, 2006, "we urge you to take the final step of this important rule so future generations will be able to enjoy the excitement of hunting black ducks, hear the eerie clacking of rails at dusk, hear a chorus of spring peepers and wood frogs or finally, stand in awe as thousands of shorebirds undulate across a mudflat. Your support of LD 1981 will take the state of Maine a giant step forward in protection of these important natural resources. Thank you for your consideration." -F.H.
Sen. Raye on LD 1981: 'A Case of Overreach?'
In response to a query on LD 1981, the emergency bill passed earlier this year addressing land-use restrictions, Sen. Kevin Raye (R-Perry), in a written statement, said:
"It is my understanding that LD 1981 resulted from a rule promulgated by the Board of Environmental Protection (BEP). This rule had to go before the Legislature's Natural Resources Committee because it was deemed a 'major substantive rule,' requiring legislative oversight. The major focus of the rule was the 'vernal pool' issue that you may have heard about.
"During its consideration of LD 1981, the Natural Resources Committee significantly amended the original rule. While I am not a member of the committee, it is my understanding that these revisions were made to address concerns raised during the public hearing that the original rule was unacceptably harsh. Apparently, there were no concerns raised about shore-land zoning, as the focus was on the vernal pool issue. I believe that Rep. Henry Joy, a staunch defender of property rights, was one of the committee members who insisted on changes to soften the impact of the rule with respect to vernal pools.
"I do not recall hearing about any opposition to the amended version of the bill that emerged with the unanimous support of the Committee.
"In response to input I received from several constituents in recent days, I have contacted DEP Commissioner David Littell to express my concern about the implementation of the rule and what I am hearing about its possible impact on development rights and property values. I have also asked for an interpretation of a map that was provided to me showing much of Lubec's waterfront highlighted in red.
"In addition, I have been in touch with the Maine Association of Realtors, which generally keeps close tabs on legislation that could impact development rights or property value. I asked what they could tell me about this issue. I am told by their Executive Director Cindy Butts that they had been focused on the vernal pool issue. She said that during the legislative process, they 'had not heard that there were concerns about the waterfowl aspects from the developers association or others.'
"Currently, I am awaiting a response from Commissioner Littell and additional information from the Maine Association of Realtors. But based on what I have heard from local officials thus far, it is clear there are significant concerns with the implementation of the shoreland zoning piece of the rule.
"Too often, Maine seems to have difficulty striking a balance that ensures reasonable environmental protections, while protecting the rights of property owners and affording much-needed opportunities for economic development.
"I am concerned that this rule may be a case of overreach in the name of environmental protection. If it becomes clear that that is the case, and a law change is required to amend the rule to avoid unreasonable limitations, then I will pursue such a change."
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More on the “habitat” land control agenda for Maine: www.moosecove.com/propertyrights/index.shtml#habitat