Scarborough Marsh in 2022. Contributed / Maine Audubon

The Scarborough Town Council last week passed a 25-foot setback from wetlands for new developments in a 5-2 vote with Councilors Don Cushing and Scott Doherty opposed.

Recent meetings and public hearings revolving around the setbacks have garnered a healthy amount of public comment. Many residents have expressed support for the setbacks and some say they would rather see one larger than 25 feet. Those opposed, most of whom were local developers, argued the one-size-fits-all approach would hamper their present and future efforts of development.

Town staff brought forward three amendments at the Jan. 22 Council meeting based on input from councilors and criticisms by local developers, but only one, which excludes conservation subdivisions from the ordinance as they already have setbacks in place, was passed.

One of the two amendments drafted by staff that did not pass would have created a process for the Planning Board to decrease the required setback from 25 to 15 feet if a proposed development were to receive state or federal approval for wetland fill. Another amendment drafted by Councilor Cushing included avenues for the Planning Board to issue waivers, which also failed.

“I do not think the Planning Board given broad discretion to waive these conditions is appropriate,” said Councilor Bill Donovan. “The conditions have been weakened tremendously over the year and a half that this matter had been on the table being reviewed by various committees. … This will invite more litigation challenging the Planning Board’s failure to use their discretion to waive conditions.”

The other amendment drafted by staff would have delayed the ordinance’s enaction date to May 1. Work on the ordinance began with the town’s Conservation Commission in June 2023. Throughout 2024, stakeholder presentations and developer forums were held as the ordinance made its way through multiple committees for vetting. It was first brought before the Town Council and Planning Board in December.

“I appreciate we want to give people the courtesy of the idea that this is changing (but) anyone doing business in Scarborough has known for at least six months, if not for the last year, that we’ve been looking at this and want to make changes,” said Councilor Karin Shupe.

Cushing made a motion to table the ordinance to allow more tinkering given the importance of the measure and clashing public input. The measure failed, 5-2, with only Cushing and Doherty in favor.

“I’m not sitting here to come up with some crafty way to kill our marsh,” Cushing said. “What I’m trying to do is come up with a good law.”

Doherty said he is “all for” setbacks from wetlands and the marsh but believes “whenever you do new ordinances, there (are) injustices to certain people.”

“I think it’s an injustice if I had a job and I was doing something and I’d been doing it for years, and then the town comes in and says, ‘We’re going to change the policy right now,’ and I’ve invested money in it,” he said. “That’s what this situation is.”