Stacy Brenner
SCARBOROUGH — The Maine Legislature will consider a bill that will help owners of property near a body of water afford flood insurance.
On Jan. 10, Sen. Stacy Brenner, D-Scarborough, introduced the bill, LD 1809, “An Act To Allow Exceptions to the Height Limitations under the Shoreland Zoning Laws.” The bill was the subject of a public hearing before the Legislature’s Joint Standing Committee on Environment and Natural Resources.
“When Scarborough town staff came to me over the summer looking for a solution to the conflict between federal flood insurance requirements and state shoreland zoning laws, we immediately got to work,” Brenner said. “The result is a bill that will allow property owners to access affordable flood insurance through the National Flood Insurance Program while also satisfying state guidelines. This change will be a win for municipalities and property owners across the state.”
Addressing this issue now is important as, Brenner said, “new FEMA flood maps, which will take effect next year, will increase the base flood elevation by more than five feet in certain coastal areas, such as Scarborough.”
Currently, height limitations in the state Shoreland Zoning Act can pose a conflict with standards set forth in the National Flood Insurance Program, which require a property’s lowest floor to be a minimum of 1 foot above the base flood elevation — the elevation of surface water resulting from a flood that has a 1 percent chance of equaling or exceeding that level in any given year, according to Brenner. As flood water levels continue to rise, the need for homeowners to raise their properties off the ground to protect their investment will continue. However, state law currently limits the maximum height of a structure, while at the same time federal standards require properties be a certain height above base flood elevation.
“This bill proposes to alter the definition of ‘height’ in Maine statute, and also to allow for certain exceptions to be made to existing nonconforming structures located in an area of special flood hazard, in order to be consistent with a local floodplain management elevation requirement,” Brenner said in the committee hearing on Jan. 10.
By changing state law to allow properties to be modified for compliance with federal guidelines, property owners will be able to raise their homes to protect them from flooding, while also maintaining the ability to hold reasonably priced flood insurance, according to Brenner.
The Maine Department of Environmental recognizes that without changing the height definition, some coastal homeowners may be in an untenable situation of being able to comply with both zoning and other requirements, DEP Bureau of Land Resources Director Nicholas Livesay said in testimony to the committee.
“The department has observed that the existing shoreland zoning limitations on the height of structures may result in a scenario where it is impossible for a property owner to comply with both shoreland zoning and floodplain management requirements,” Livesay said. “A property owner needing to raise their structure to satisfy the local floodplain management ordinance may be prohibited from doing so by the shoreland zoning height limits. LD 1809 resolves this conflict and does so in a way that is consistent with the objectives of the Shoreland Zoning Act.”
“The bill retains the existing height limits but, within areas of special flood hazard, adjusts how the height of a structure is measured. Instead of measuring from the ground to the peak of the roof, the height is measured from the bottom of the sill of the structure, ” he said. “This allows posts or flood-resistant foundations, consistent with the National Flood Insurance Program requirements, to be added under a structure without counting against the height limit.”
The change in definition is needed for Scarborough and the other coastal communities that have adopted the most recent Shoreland guidelines, said Brian Longstaff, Scarborough zoning administrator.
“In the Shoreland Zone, height is measured from the mean original grade at the downhill side of the structure to the highest point of the roof,” Longstaff said. “If an existing non-conforming dwelling is currently 50 feet from the resource and is currently 20 feet in height, and needs to be elevated by 4 feet to meet the new base flood elevations, it cannot comply with the Shoreland Zoning requirements without the need to reconstruct the roof and remove 4 feet of headroom within the dwelling. This could in turn, make the building non-conforming with building code requirements for minimum room area and height, not to mention the added cost of construction and loss of space on which they are currently paying taxes.
“By amending the definition of building height for those structures that are in the special flood hazard area,” he said, “and also allowing those structures to be elevated to the minimum height necessary to comply with floodplain regulations in exchange for relocating to meet the setback from the resource to greatest extent possible, homeowners can at least have a reasonable and predictable outcome when contemplating building improvements or when elevating to reduce the possibility of flood damage and also reduce their flood insurance costs.”
“In no way is this an attempt to degrade shoreland zoning protections,” Brenner noted. “This bill is a way to balance a home owner’s ability to protect their asset and for the town to be able to see these properties change hands and continue to provide property tax revenue to the municipality.”
Also speaking in favor of the bill were representatives from the Maine Municipal Association and the Maine Real Estate and Development Association.
LD 1809 faces further action in committee.
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