Town-Wide Zoning in Maine · Town-Wide Zoning in Maine An Overview prepared by the Hancock County Planning Commission. March 18, 2014.

Town-Wide Zoning in

Maine

An Overview prepared by the

Hancock County Planning

Commission. March 18, 2014.

This presentation was prepared by the Hancock County

Planning Commission under award CZM NA13NOS4190045

to the Maine Coastal Program from the National Oceanic and

Atmospheric Administration, U.S. Department of Commerce.

The statements, findings, conclusions, and recommendations

are those of the author(s) and do not necessarily reflect the

views of the National Oceanic and Atmospheric Administration

or the Department of Commerce.

SOME HISTORICAL CONTEXT

Communities have enacted land use

restrictions since the first humans settled in

towns. The oldest known towns are about

11,000 years-old.

MESOPOTAMIA

WHY WERE LAND USE

CONTROLS ENACTED?

1. SANITATION

CIRCA 580 BCE

BY 1st Century CE

PUBLIC SAFETY: SPACE NEEDED BETWEEN

BUILDINGS

SAFE CONSTRUCTION

EARLIEST KNOWN BUILDING CODE:

THE CODE OF HUMMARBI, BABYLON, 3000

BCE

ENFORCEMENT WAS STRICT

§ 228. If a builder has built a house for a man and has completed it,he shall give him as his fee two shekels of silver per sar of house. § 229. If a builder has built a house for a man and has not made strong his work, and the house he built has fallen, and he has caused the death of the owner of the house, that builder shall be put to death. § 230. If he has caused the son of the owner of the house to die, one shall put to death the son of that builder.

ANOTHER ANGLE ON PUBLIC SAFETY

THE PARISIAN BOULEVARDS WERE DESIGNED AS A

FORM OF RIOT CONTROL

TO PROVIDE ACCESS TO LIGHT

OR TO PROVIDE SHADE

ZONING IN THE UNITED

STATES

Zoning's recognized purpose is to promote the common good and general welfare of the community as a whole. To be deemed valid, a zoning ordinance furthers the public health, safety, morals, or general welfare. Thus, zoning applicants may be required to demonstrate that neither a proposed use nor location will have a detrimental effect upon public health, safety, welfare, or morals.

THE PARADOX OF LAND USE

CONTROLS

It may seem paradoxical to hold that a policy of

building restriction tends to a fuller utilization of

land than a policy of no restriction; but such is

undoubtedly the case. The reason lies in the

greater safety and security to investment secured

by definite resources.

- Edward M. Basset, lawyer and father of zoning

THE MAINE CONTEXT

30-A MRSA §4352. ZONING ORDINANCES

A municipal zoning ordinance may provide

for any form of zoning consistent with this

chapter, subject to the following provisions.

Public participation required. The public shall be given an adequate opportunity to be heard in the preparation of a zoning ordinance. Relation to comprehensive plan. A zoning ordinance must be pursuant to and consistent with a comprehensive plan adopted by the municipal legislative body,

REQUIRES A ZONING MAP

EXCEPTION TO COMPREHENSIVE

PLAN REQUIREMENT

Enactment of an adult entertainment

ordinance does not require a comprehensive

plan

WHAT IS EXEMPT FROM

ZONING?

Real estate used as a public utility is wholly

or partially exempt from an ordinance only

when on petition, notice and public hearing

the Public Utilities Commission determines

that the exemption is reasonably necessary

for public welfare and convenience.

Effect on local governments.

County and municipal governments and

districts are subject to any zoning ordinance.

APPLICABILITY TO STATE

A zoning ordinance that is not consistent with

a comprehensive plan that is consistent with

the provisions of section 4326 is advisory with

respect to the State. Except as provided in this

section, a state agency shall comply with a

zoning ordinance consistent with a

comprehensive plan that is consistent with the

provisions of section 4326.

WAIVERS FOR STATE

The Governor or the Governor's designee

may, after public notice and opportunity for

public comment, including written notice to

the municipal officers, waive any use

restrictions in those ordinances upon finding

that:

A. The proposed use is not allowed anywhere

in the municipality;

B. There are no reasonable alternative sites

for the project within the municipality;

C. There are no reasonable alternatives to

the project, including sites in other

municipalities, that would achieve the

necessary public purposes;

D. The project will result in public benefits

beyond the limits of the municipality,

including without limitation, access to public

waters or publicly owned lands; and

E. The project is necessary to protect the

public health, welfare or environment.

A decision to waive a restriction under this

section may be appealed by the municipality

or any aggrieved party to Superior Court.

WHAT IS A ZONING ORDINANCE?

The term is used to describe town-wide zoning, an

ordinance with different land use standards, such

as permitted uses and lot sizes in different parts of

town. It is distinct from shoreland zoning, which

applies within 250 feet of shore and a flood plain

management ordinance, which is required for

homeowners in a town to qualify for federally

sponsored flood insurance.

ZONING DOES NOT INCLUDE:

LOT STANDARDS THAT MAKE N0

DISTINCTION IN LOT SIZES OR USES. (E.G. ,

minimum setbacks, frontage, building

height).

WIND ENERGY FACILITY ORDINANCES THAT

HAVE THE SAME STANDARDS TOWN-WIDE

TELECOMMUNICATION ORDINANCES

MANUFACTURED HOUSING PARK

ORDINANCES

CAUTIONS!

LOT SIZES OUTSIDE OF THE SHORELAND

ZONE MAY NOT BE DIFFERENT FOR

INDIVIDUAL LOTS AND THOSE CREATED

THROUGH A SUBDIVISION

FORMS OF OWNERSHIP MAY NOT BE

REGULATED (e. g . , condominiums)

SHORELAND STANDARDS THAT EXCEED THE

STATE MINIMUM GUIDELINES MUST BE

SUPPORTED BY A VALID COMPREHENSIVE

PLAN

WHAT IS A VALID

COMPREHENSIVE PLAN?

MEETS THE REQUIREMENTS OF THE

GROWTH MANAGEMENT ACT (30-A MRSA

4326)

HAS BEEN ADOPTED BY THE MUNICIPAL

LEGISLATIVE BODY IN THE PAST TWELVE

YEARS

PLAN REQUIREMENTS INCLUDE:

UNLESS WAIVED, STRATEGIES TO

ENCOURAGE 75 PERCENT OF GROWTH TO

TAKE PLACE IN GROWTH AREAS

IS CONSISTENT WITH THE TEN STATE GOALS

FOR COMPREHENSIVE PLANNING & FOR

COASTAL COMMUNITIES, THE NINE COASTAL

POLICIES

ZONING IS BUT ONE TOOL FOR

IMPLEMENTATION

WHAT DOES ZONING

NORMALLY ADDRESS?

Lot standards (size, setbacks, coverage)

Allowed uses by zone

Performance standards

Access management

Erosion and sedimentation

Aesthetics

Natural feature protection

BE SURE YOUR COMPREHENSIVE

PLAN IS CONSISTENT WITH

STATE GUIDELINES. THE ZONING

ORDINANCE MUST BE

CONSISTENT WITH THE

RECOMMENDATIONS OF THE

COMPREHENSIVE PLAN.

ELEVEN RULES TO

GUIDE THE DRAFTING

OF A ZONING

ORDINANCE

RULE # 1: DECIDE WHO WILL DO

THE WORK

Do you have town staff?

Do you have sufficient volunteer resources?

Will volunteers really get the work done or are they creating more work for lawyers and professional planners in the clean-up?

Remember to have an attorney review what you have done.

RULE # 2: A PLANNER’S WORK IS

NEVER DONE

A common mistake people make when trying to design something foolproof is to underestimate the ingenuity of complete fools.

- Douglas Adams, author, The Hitchhikers Guide to the Galaxy (1952-

2001)

- Every year towns discover problems with their ordinances that must be addressed.

REMEMBER:

Expect frequent revisions. It will never be fool-proof;

Draft your ordinance accordingly; Let the public know that the ordinance can be revised.

RULE # 3: DECIDE ON SINGLE OR

MULTIPLE ORDINANCES UNIFIED DEVELOPMENT ORDINANCE (UDO) vs.

STAND-ALONE DOCUMENTS

UDO PROS:

• Easier on applicant;

• Saves space since there can be common sections such as definitions; and

• May allow gradual introduction of land use controls.

CONS:

Revisions may take longer since sections are

dispersed in a larger document.

RULE 4: KISS

(Keep It Simple Stupid) As was said in Roman times:

Corruptissima republica, plurimae leges.

(The worse the state, the more laws it has)

Tacitus, 56-120 C.E.

Watch for Loopholes: what is the

loophole in these standards?

Portable signs are permitted for a period not to exceed three hundred sixty five days per year.

-- Section 20.66.140 - El Paso, Texas Zoning Code

APPLICANTS WILL BE CREATIVE

AND PROVIDE DIFFERENT

ANSWERS

Section 20

Visual Impact: As the ledge is what is visible,

after it is removed nothing will be seen.

RULE # 4: DON’T REINVENT

THE WHEEL: LEARN FROM OTHERS

Mr. George N. Trobus, 1938 B.C.E.

WHERE OTHER ORDINANCES CAN

BE USEFUL:

Boilerplate language such as:

• Title & Statutory Authority;

• Conflicts with Other Ordinances;

• Validity & Severability,

• Definitions

• Effective Date & Procedure for Amendments;

• Availability of the Ordinance,

• Appeals & Enforcement.

AVOID TERMS WITH NEGATIVE

CONNOTATIONS

Low income or affordable housing;

Trailer parks;

“Manufacturing” is more likely to be

accepted than “Industrial.”

SAMPLE DEFINITION

Neighborhood - Any collection of hitherto unacquainted individuals with physically proximate homes who find themselves suddenly united in vigorous opposition to unpalatable change, especially a rezoning, development, or highway. -- Joel Garreau

WATCH FOR THESE COMMON

PITFALLS WHEN ADAPTING FROM

OTHER TOWNS OR MODELS

References to non-existent town personnel such as

police chief, town planning department or city

engineer;

Coastal standards in inland towns;

Inappropriate references to arterial highways,

public water and sewer.

DON’T TRUST SPELL CHECK

Section II. District Boundaries

The Aquifer Protection District is defined as

those areas delineated as potential

groundwater areas by the U.S.G.S. and

shown on the map entitled “Availability of

Ground Water in the Bimetallist and

Rhinoplasty River Basins, Central New

Hampshire” by John E. Cotton.

RULE # 5: ADJUST STANDARDS TO

FIT YOUR CAPACITY TO ADMINISTER

& ENFORCE

Is your town ready to implement techniques such as transfer of development rights, form-based zoning and mixed-use development standards?

How many hours a week is your code enforcement officer employed? Will it be enough?

HOWEVER, EVEN A SMALL TOWN

CAN HIRE OUTSIDE EXPERTS

The cost of this expertise can be charged to the planning board applicant; and

Increased enforcement costs can be addressed with permit application fees.

A CAUTION ON EXPERTS:

Dazzle them with special jargon known only to planners. Not a natural skill, this is best acquired by reading every issue of the American Planning Association Journal from cover to cover (including all footnotes). For example: "Yes sir, it is true that the Constitution protects your right to bear semi-automatic weapons, but in today's paradigm of socio-economic realities manufacturing Uzis is not a permitted use within polygons whose attributes are associated with structures intended for human habitation.“

-- Dan Coleman

RULE # 6: REMEMBER YOUR

AUDIENCE

Present material in a user-friendly manner. Examples:

• Readable font;

• Detailed table of contents;

• Clear subheadings;

• Headers and footers; and

• List standards in alphabetical order.

YOU HAVE SEVERAL AUDIENCES

These include:

– The resident needing a routine permit who is

only interested in a small portion of the

ordinance;

– The small-scale developer such as someone

who wants to build a convenience store; and

– The large-scale developer such as the big box

store.

RULE 7: USE ALGEBRA RATHER

THAN CALCULUS

It takes longer but is easier to explain;

There is less chance for confusion; and

It assumes little prior knowledge.

USE RECOGNIZED REVIEW STANDARDS

WHERE APPROPRIATE

It is easier for applicants to follow if recognizable

standards are used. This is frequently appropriate

in cases such as:

- Stormwater runoff;

– Access management;

– Phosphorus control; and

– Off-street parking

AVOID THE DEPARTMENT OF

REDUNDANCY DEPARTMENT

EXAMPLES:

– Null and void;

– Full and complete;

REMEMBER:

“The large print giveth and the small print taketh away”

Avoid conflicting standards. The more restrictive standard always applies.

I get so involved in the

nit-picky stuff, I forget the details.

Anonymous development

review planner

EXAMPLE OF A PURPOSE

STATEMENT

To promote a mixed use activity area that

concentrates pedestrian-intensive commercial and

residential uses and multi-family housing

compatible with the scale and intensity of existing

uses found in this area. New streets and

pedestrian links with the school, town office, fire

station and grocery stores are to be emphasized

and encouraged.

COMP PLAN ADVICE:

A plan that everyone dislikes for different

reasons is a success. A plan everyone

dislikes for the same reason is a failure. And

a plan that everyone likes for the same

reason is an act of God.

- Richard Carson, Pacific Northwest planner

and writer.

RULE #8: REMEMBER YOU ARE

MORTAL

This means any ordinance language must be understandable by your successors on the planning board and any planning board applicants.

It is important to keep a record of when amendments were made.

Paper trails can help future board members determine when provisions were enacted.

AND YOU CAN’T PLEASE

EVERYBODY

SOME WILL WISH YOU A

SHORTER LIVE

AN EXAMPLE OF AN EASY-TO-TRACE

AMENDMENT

3) Required off-street parking in all districts …

except that where it cannot reasonably be provided

on the same lot, the Planning Board1 may

authorize residential off-street parking to be

located on another lot … measured along lines of

public access if safe and convenient2.

1 Amended April 6, 1999


4) except that where off-street parking cannot be

provided within these limits, the Planning Board3

may permit such off-street parking to be located a

reasonable distance from the principal building or

use, measured along lines of public access if safe

and convenient4.



RULE # 9: INVOLVE THE PUBLIC

Here are some possible ways:

– Write articles for the local paper –

keep them short & to the point;

– Keep an up-to-date draft on display at the town

office

– Dedicate a portion of the town’s web site and

social media pages to the project;

– Hold public workshops on the land use districts;

– Talk to various groups in town; keep it short

– – focus on the districts and perhaps one or two provisions that may be controversial;

– Hold a public supper, again focusing on just a few topics such as the land use districts; and

– Prepare a brief report for municipal mailings such as the tax bill or notice of a special town meeting.

RULE # 10: HAVE A GOOD ZONING

MAP

Computer mapping technology makes this step easy.

< THEN

< NOW

RULE # 11: SET GROUND RULES

FOR THE PROCESS

Procedural Matters:

– Meeting dates, time and duration;

– Selection of chair;

– Meeting ground rules; and

– Timeline for completion

Use of Subcommittees:

– commercial review standards;

– grammar police; and

– definitions.

QUESTIONS?

Contact info:

Telephone: 667-7131

E-mail: [email protected]

Website: www.hcpcme.org

mailto:[email protected]

http://www.hcpcme.org/

Town-Wide Zoning in Maine · Town-Wide Zoning in Maine An Overview prepared by the Hancock County Planning Commission. March 18, 2014.

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