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
2 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.
3 Amended April 6, 1999
4 Amended April 6, 1999
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?