07/16/2014

Hearing Aug. 11 on definition of shoreland-protection boundary line

The Town Council will hold a public hearing Aug. 11, 2014 on a proposal that would change the way the outer boundary of the shoreland protection zone is measured.

The boundary, known as the "normal high water line" of coastal waters, marks the 250-foot-wide band where development is regulated along the coast. Development within 75 feet of the normal high water line is prohibited.

Currently the town's zoning ordinance defines the normal high water line as " ... the apparent extreme limit of the effect of the tides" and gives the top of a bank, beach or bluff as examples.

The proposal would instead use the highest astronomical tide level, measured over a 19-year period, plus 3 feet, to mark the high water line.

"The visual inspection method is what we're using right now, and the proposal is really to go to the elevation method," Town Planner Maureen O'Meara said to councilors at their meeting July 14. "You set a line, and if you took two or three surveyors out there, they'd probably all agree it's in the same spot. So it's very predictable, it's very consistent," O'Meara said.

The proposed change was requested by Code Enforcement Officer Benjamin McDougal, who after starting his job in Cape Elizabeth said he found interpreting the normal high water line definition in the town ordinance to be his biggest challenge. "On the one hand it could be interpreted as the top of a bank ... On the other hand it could be determined as the staining on rocks," he said in a March 2013 memo. Either measure could vary up to 80 feet from the actual high tide, he said. "In my opinion it is not in the town's best interests to have a definition in the zoning ordinance that could cause 80 feet of variability in a zoning line," his memo 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."

In the 17 months since, the Planning Board and the full council have listened to presentations by Maine Geological Survey Marine Geologist Peter Slovinsky, who explained the effects of rising sea levels on Maine's coast.

The Planning Board recommended using the astronomical tide measure rather than the annual tide, which changes every year but is currently used by the state Department of Environmental Protection. Adding 3 feet to the highest astronomical tide increases environmental protection, according to the board's recommendation.

Most Maine town's use the "annual" tide definition, part of the state-mandated shoreland zoning, O'Meara said. None, other than Cape Elizabeth, use the visually determined definition, she said. "The Maine Geological Survey has recommended to the DEP that they move from the highest annual tide standard to the highest astronomical tide, and there is high expectation that the state will be doing that at some point so we are actually targeting ourselves to move to the standard that is what the state's looking at," O'Meara said.

Adding 3 feet, or even adding 1 or 2 feet, to the astronomical tide measure "would really put Cape Elizabeth in the lead in terms of environmental protection," she said.

Low-lying areas vs. rocky coast

O'Meara presented maps comparing the current shoreland protection zone to where it would be measured under the proposed standards. Her presentation showed comparable protection. Low-lying areas, where the new measure would reach farther inland than the current shoreland map shows, would likely fall under new shoreland zoning, but in most cases those properties are already protected by wetland regulation, she said.

The map, however, only suggests zoning boundaries. They, like all other resource-protection boundaries, need to be field-verified when development is proposed, O'Meara said. The proposed ordinance amendment adds language to that effect.

Neighbors in the Shore Acres neighborhood have opposed the new measure because they believe it would provide less shoreland protection near rocky ledge areas such as theirs. They urged the council on July 14 to hold a workshop and to thoroughly examine shoreland maps before moving to a public hearing.

Jamie Wagner, a member of the Town Council's ordinance subcommittee, urged residents to contact the council with concerns about how the new standard would impact their properties. "What I see is two essential questions: One, would there be an environmental 'step back', at least in some parts of town? And the other question is, will there be citizens whose property is negatively impacted?"

Kathy Ray, subcommittee chair, said, "Our intent was to try to be consistent going forward. But if it's really impacting somebody we want to make sure that we're clear who it's impacting and what that impact is."

The proposed elevation for determining the high water line, as defined by the National Oceanic and Atmospheric Administration, is 14.6 feet, but will change as the 19-year period is recalculated approximately every 20 years. The current period of measure is 1983-2001.

Notices of the hearing will be sent to all residents in and near the shoreland zone, and advertised twice in the newspaper, said Town Manager Michael McGovern.