Brian Cullen
Shoreland zoning laws are intended to protect the quality of Maine’s lakes and ponds. In general, shoreland property is defined as the areas within 250 feet of “great ponds,” such as Taylor Pond, and within 75 feet of streams. Construction, landscaping, and other land use activities that are routinely permitted on non-shoreland property, may be constrained or precluded altogether within the shoreland zone.
Although shoreland zoning standards are mandated by the state of Maine, enforcement of those standards is primarily the responsibility of the respective municipalities where the shoreland is located. As a result, the local authorities must develop their own expertise and capacity for investigating and enforcing shoreland zoning standards. Accordingly, the investigation and enforcement of shoreland zoning violations may vary significantly across the state. Locally, the City of Auburn Planning, Permitting and Code Department is the resource for code guidance and enforcement by well-informed professionals.
Local authorities may be challenged when a property owner mounts a vigorous legal defense to a shoreland zoning citation. To support its citation, the municipality may need to hire outside attorneys and experts and incur significant expense. Naturally, the more extensive the alleged violations are, the more costly they will be to prosecute. The costs of enforcement are borne by the municipality, not by the state. Even after successfully prosecuting an enforcement action, the municipality may have difficulty recovering financial penalties from and/ or enforcing property remediation orders against a property owner.
Recently, the Maine legislature passed a new law to increase the enforcement capabilities of local authorities. The new procedures strengthen a municipality’s ability to compel a shoreland property owner to remediate zoning violations and to recover financial penalties and legal costs from the responsible property owner.
The impetus for this new legislation was a well-publicized zoning dispute between the Town of Raymond and a corporate property owner, involving two lakefront properties on Sebago Lake. The Town charged the property owner and its contractors with making impermissible changes to the two lakefront properties, including removal of lakefront trees and other vegetation and installation of hundreds of feet of riprap, all without a permit. Among other defenses, the property owner claimed that the contractors were solely responsible for obtaining and complying with all necessary permits.
The property owner had sufficient financial resources to fund an aggressive legal defense of the alleged violations. The Town unsuccessfully requested financial assistance from the State and the City of Portland (which gets its drinking water from Sebago Lake) to prosecute the zoning violations. Ultimately the Town spent over $300,000 on outside legal expenses to support its case. Of further significance, the principal shoreland contractor filed for bankruptcy protection during the litigation.
The Sebago case was recently settled with no admission of wrongdoing by the property owner or the contractors. Under the settlement, the property owner agreed to restore the shorefronts to their pre-disturbed condition and to make a substantial monetary payment to the Town. In further consequence of this litigation, legislators representing the Town of Raymond sponsored the new state law to increase the shoreland zoning enforcement powers of municipalities.
The new enforcement provisions allow a municipality to file a civil lawsuit against a property owner who wrongfully fails to abate violations, and/or pay assessed penalties. If the municipality prevails in the civil litigation, it can also recover its attorney’s fees and legal expenses from the property owner. After prevailing, the municipality can place a lien on the subject property in the amount of the total judgment it has received. The municipality can also deny the issuance of otherwise meritorious building permits or revoke previously issued permits pertaining to a property which has unabated shoreline violations.
In short, the new law does not change the zoning standards applicable to shoreland but does strengthen the ability of municipalities to enforce their existing standards. Municipalities forced to litigate violations can now recover the legal expense of prosecuting a successful case. Municipalities can also more easily use property liens and permit revocations to compel payment of financial penalties and/ or remediation of the subject shoreland. These changes will give more clout to municipal enforcement actions and potentially decrease the financial burdens of enforcing shoreland standards.
Brian Cullen
