03/13/2013

Town looking to clarify definition of 'high water' mark used to delineate shoreland properties

The Town is looking to clarify how it determines frontage and setbacks for shoreland properties.

At the recommendation of the Town's new code-enforcement officer, the Town Council on March 11, 2013 referred to the Planning Board a proposal to clarify the zoning-ordinance definition of "normal high water line of coastal waters".

The line, currently defined as "That line on the shore of tidal waters which is the apparent extreme limit of the effect of the tides i.e. the top of the bank, cliff or beach above high tide," is used as a reference to measure frontage and setbacks required by shoreland zoning.

Town Manager Michael McGovern said the Town continues to pay legal fees defending this definition, which has not been reviewed since the early 1980s and, to his knowledge, is not used by any other coastal Maine community.

"This is an extremely important issue and I applaud the code-enforcement officer for bringing it forward," McGovern told councilors.

In a memo, Code Enforcement Officer Benjamin McDougal said the greatest challenge he has faced in his first five weeks on the job has been interpreting the normal high water line according to the Town's definition. It could be the top of a bank, or, it could be the stain left by a high tide - different marks that could lie as much as 80 feet apart, he said.

"The past practice of the code enforcement officer making this subjective determination on a case-by-case basis exposes the Town to litigation," McDougal said. "I would recommend that the Town have a definition that enables land-use professionals to determine the line based on objective and scientifically sound criteria," he said.

He is suggesting the state Department of Environmental Protection's definition of "coastal waters". McGovern characterized the state's definition as one that is "already mapped out, and it's much more certain of where that line is."

The Planning Board is expected to review the request and, after a public hearing, recommend any changes back to the Town Council.