Vehicles travel along Route 1 through the Scarborough Marsh last September. Gregory Rec / Portland Press Herald

Local developers and residents in Scarborough debated a proposed 25-foot buffer between new developments and adjacent wetlands at a Town Council public hearing last week.

Developers expressed concern over unintended consequences the new policy could bring with it and criticized its “one-size-fits-all” approach.

Meanwhile, the majority of residents who took to the podium were in favor of the ordinance that is designed to protect that town’s wetlands from the adverse effects of development – and some said they wish it went further.

The proposal

The proposed 25-foot setback is separated into two parts: a 10-foot area that must remain undeveloped but still permits some activities to take place and a 15-foot “no disturb” buffer consisting of natural vegetation between the 10-foot area and the wetland.

The proposal has been over a year in the making, starting with the Conservation Commission who worked on the ordinance from June 2023 to February 2024. Throughout 2024, stakeholder presentations and developer forums were held as the ordinance made its way through multiple committees for vetting. It was eventually brought before the Town Council and Planning Board in December.

In presentations to the council, including one ahead of the Jan. 8 public hearing, town staff noted that the town was originally considering a larger setback but eventually settled on 25 feet. They explained that the functions of wetlands include absorbing rainfall, preventing floods, recharging groundwater and providing habitat. Construction and other uses in close proximity to the wetlands, they said, can cause changes to vegetation, habitat and groundwater.

In the presentation on Jan. 8, Town Engineer Angela Blanchette said Scarborough is not alone in implementing a wetland setback. Portland already has one ranging from 25 to 50 feet while South Portland has its own 25-foot setback in place.

The setback would only apply to new developments in town that require site plan or subdivision approval.

One argument against Scarborough’s proposal has been that the Maine DEP is already working on changes to its own policies around wetland setbacks. However, Blanchette shared that some DEP officials have expressed support for the local proposal as the DEP often adopts the very minimum standards as they apply to the entire state. Meanwhile, for areas that are being rapidly developed, such as Scarborough, they said, stricter policies can be beneficial.

Developer concerns

Dan Bacon, a developer at The Downs downtown development, said the proposal makes sense “for a variety of development projects” but took issue with the “one-size-fits-all” approach. He said he believes projects that are already addressing wetland protection, such as installing gravel wetlands as The Downs has, should be given some flexibility.

Bacon urged the council to also consider strategies employed in the Maine DEP’s review process.

“In that process, there are a lot of value-based decisions: High-value wetlands get significant setbacks, low-value have minimal,” Bacon said. “Flexibility is important.”

Brian Rayback, an environmental lawyer who said he works with a number of developers in Greater Portland, including The Downs, said the setbacks unfairly move the goalposts for them and other developers.

“It does feel a little bit like the goalposts are moving for them and that can be difficult and frustrating when you’ve already made investments,” he said. “There are exemptions in state and federal law where wetland impacts are so small that no DEP permit is required. You might think about incorporating that into your system.”

Rocco Risbara, a developer at The Downs, said their team has identified a number of unintended consequences the ordinance will have on The Downs.

“I think a workshop is in order, and if we had a workshop it would give us a chance to show you where those holes are and where those conflicts are,” he said. “We’d appreciate the opportunity to address the council in a less formal setting.”

Daniel Dickinson, who owns a parcel in the town’s Light Industrial District, also asked for a workshop.

“I’d like to second Mr. Risbara’s request for a workshop for this ordinance so we can bring us all together and really hash down on these details,” Dickinson said. “I’m not necessarily opposing this, but I think there are some things than can be worked over and make it more amenable to all parties.”

‘The bare minimum’

Residents and members of the town’s Conservation Commission spoke in favor of the 25-foot setback at the Jan. 8 public hearing.

“This is definitely not a one-size-fits-all. It’s establishing a bare minimum,” said resident Aubrey Strause.

She pushed back against an argument in opposition to the ordinance at previous public hearings that the setback would deter the creation of affordable housing. For that reason, some opposed to it have called for exemptions or some sort of waiver process.

“If we allow affordable housing development to happen only in places by approving waivers and reducing natural resource protection, what we wind up with is affordable housing concentrated in areas with lower-quality environments with reduced environmental standards, and I think that becomes an environmental justice issue,” she said.

Cathleen Miller, a member of the commission, argued that protecting the wetlands comes with economic benefits.

“Healthy wetlands benefit all of us and, while they may not fill our bank accounts, they provide economic benefits to the town and its residents that in ways are both measurable – tourism and other types of things we can see in dollars – and the incalculable, such as the health benefits of living in a natural area that is accessible to us,” Miller said.

Some residents said they believe the proposed 25-foot setback doesn’t go far enough.

“Twenty-five feet is the least we could do and I’d really like to see it go up to 50,” said resident Robyn Saunders.

“My family are shellfish harvesters and everything you do to wetlands directly affects my family and how they make a living,” said resident Mo Erickson. “I wish it could be 100 (feet).”

The Town Council is scheduled to take a final vote on the 25-foot setbacks at an upcoming meeting.