plan and regulate for access
overview
Municipal, state, and federal governments each have a vital role in safeguarding coastal access through tools like zoning ordinances, harbor management plans, and environmental regulations that protect ocean resources. Effective regulation seeks to prevent development that would block or displace historic uses of the shoreline while balancing other community and environmental needs. Although only government bodies can create and enforce these rules, stakeholders who understand the planning process are better equipped to support sound policies and help shape their town’s future.
These regulatory powers derive from long‐standing legal doctrines—police power, the common‐law public trust doctrine, and the U.S. Constitution’s Takings Clause—which together define both the authority and limits of government action on behalf of the public. For a more detailed discussion of these legal foundations, see Common Law and Statutes and Eminent Domain and Takings.
Common questions:
What planning processes exist for securing access in waterfront towns?
What is zoning and how can it be used as an incentive for protecting access?
What zoning tools are available to address access needs?
How much of the Maine coast is zoned for water-dependent use?
What is the role of rights of way?
How do environmental regulations address coastal access issues?
What kinds of ordinances can be used to address access needs?
What tools can governments use to generate funding for access?
What are other regulatory options?
What programs exist for towns to support coastal access?
What planning processes exist for securing access in waterfront towns?
Comprehensive planning: Under the Maine Growth Management Act, towns are required to have a comprehensive plan to guide orderly growth and support land use regulation and zoning ordinances. Comprehensive Plans are required to address public access to coastal waters for recreation and marine harvesting activities. More information on Comprehensive Planning is available through the Municipal Planning Assistance Program, which is part of the Maine Office of Community Affairs (MOCA) or contact your regional planning commission (regional planning commission list by region).
Harbor planning: Harbor management plans direct the town harbormaster in oversight and enforcement of harbor use rules and regulations established by local ordinance. Ideally, harbor plans are created from the town’s comprehensive plan, and are often linked to a harbor management ordinance.
Shoreline Access Planning: Coastal communities can undertake public access studies and analyses to document the need for improved and enhanced access, locate potential access sites and facilities, and undertake projects to acquire and develop access to coastal waters. Planning grants may be available from the Maine Coastal Program.
Mandatory Shoreland Zoning: Though the Mandatory Shoreland Zoning Act is not a planning program, it requires all municipalities to adopt and enforce mandatory shoreland zoning districts and regulations that protect existing access to the shore, consistent with state guidelines.
Maine Coast Fishermen’s Association has created resources for towns to incorporate working waterfronts into town planning efforts including:
What is zoning and how can it be used as an incentive for protecting access?
Zoning is a system of developing a city or county plan in which various geographic areas (zones) are restricted to certain uses and development, such as water-dependent use zoning. By preventing certain uses, zoning can ensure that some land remains open for access or for the possibility of being acquired for access. Also, zoning can help prevent residential uses from competing with marine uses. Exception to zoning restrictions can be negotiated in exchange for a public good, such as a public boat ramp or path to the shore.
What zoning tools are available to address access needs?
Incentive/bonus zoning is a technique that allows developers to exceed zoning regulations in exchange for providing specific public benefits, such as physical access to the shore. For example, allowing a slightly higher density of houses or multi-use zoning in an area where the developer sets aside land for conservation and perhaps for a path to the ocean.
Zoning ordinances can be very flexible to address the needs of a specific community. They can include the following:
How much of the Maine coast is zoned for water-dependent use?
According to a 2007 survey by the Island Institute, within the 142 coastal towns and 5,300 miles that make up the coast of Maine, 1,555 points provide saltwater access. This access includes everything from public boat landings and municipal rights-of-way, to boatyards, marinas and private fishing docks. It includes both ocean and estuarine access. Of the 1,555 saltwater access points, 888 (57%) support commercial fishing activities. Of these 888 access points, 66% are privately owned and thus vulnerable to conversion to other uses. Only 81 access points qualify as “prime working waterfront,” and only 62 of these currently support commercial fishing. Only 446 (29%) of the 1,555 saltwater access points in 45 of Maine’s 142 coastal towns are currently protected under some type of water-dependent use zoning.
What is the role of rights of way?
Rights-of-way provide the right for the public or designated individuals or groups to cross property to access another parcel. Public rights-of-way are sometimes lost over the course of generations of land ownership changes. Municipalities can create or rediscover rights-of-way to the coast in an effort to support commercial fishing and marine industries as well as recreational access.
How do environmental regulations address coastal access issues?
Environmental regulations, such as habitat protection and stormwater runoff regulations can impose restrictions that affect access use. Regulations can be crafted to include access as a compatible use, but exclude other uses that might restrict access. These differ from zoning in that restrictions cannot be contracted out of or negotiated away.
What kinds of ordinances can be used to address access needs?
Ordinances can be used in many ways to address access needs. For example, a boat ramp might have quiet hours overnight (a sound control ordinance), thereby protecting the rights of the nearby landowners by minimizing how the ramp can be used at night. Or a harbor can have a restriction on vessel size to prioritize access by a certain size boat. Light pollution ordinances can also affect access.
What tools can governments use to generate funding for access?
- Bond Financing: long-term promissory notes issued and backed by the government, for funding at the state or local level. In a Maine example, the Working Waterfront Access Protection Program (WWAPP) has been successful when embedded within larger request of Land for Maine’s Future bond. In a local example, the town of Tremont, Maine purchased a working waterfront property from a private seller at foreclosure. The voters of Tremont authorized the Town to finance the purchase with a loan from a local bank. Also see Tremont, Maine Bond Financing case study.
- Other financing strategies include dedicated excise taxes and financing purchases through the State’s general fund (generally via broad-based income and sales taxes). More on excise taxes.
- Real Estate Transfer Taxes: Depending on the enabling legislation in the given state, this tax may be levied at the state or local level. A 2% real estate transfer tax has been used successfully to fund land banks in Nantucket and Martha’s Vineyard, MA, and in the San Juan Islands in Washington. Maine’s real estate transfer tax has been in place since 1975, at a rate of one-half of one percent. More on Real Estate Transfer Taxes. Also see Real Estate Transfer Taxes, Land Banking and Lessons for Maine case studies.
What are other regulatory options?
Special assessments, impact fees, and exactions can be used as possible monetary and non-monetary incentives for a desired form of land use and development. Properly applied, they can be used by a municipal government to help finance larger waterfront construction and improvement projects related to water-dependent uses, and to discourage (or derive public benefit from) other major development projects.
Special Assessments: In order to finance the construction of improvement of a large public facility, municipalities may impose charges on property owners who benefit from that facility. Typical examples include road improvements, sidewalk construction, street lighting, and sewer extensions, but they might also partially finance municipal wharf projects and other capital-intensive waterfront improvements.
Impact Fees: These are charges imposed on new development for the impact of the development on the public facilities that benefit them. Impact fees can be used to finance any type of public facility or service, such as a public oceanfront park, which will benefit the new development. However, impact fees can only be used to cover the percentage of the cost that is attributable to the new development.
Exactions: These can be used when a municipality requires landowners seeking to develop their property to provide a public benefit that mitigates any harm caused by the development. This approach requires land developers to dedicate an interest in land (or pay a fee in lieu of such dedication) to mitigate the reduction of some public benefit that their development will cause. For an exaction to be imposed it must be logically connected, and roughly proportional to the negative impact that it is being required to offset
What programs exist for towns to support coastal access?
Case Studies
Federal Excise Tax Models
The Dingell-Johnson and Pittman-Robertson Acts demonstrate how excise taxes on outdoor equipment can be channeled into state conservation programs, offering a potential model for creating dedicated federal or state funding streams to support working waterfront conservation and coastal access.
Maine Voluntary Municipal Farm Support Program
This state-level model illustrates how municipalities can voluntarily offset property taxes for qualifying farmland in exchange for agricultural conservation easements, and—with its emphasis on local criteria, tax mechanisms, and conservation agreements—could offer a useful template for similar programs aimed at protecting working waterfront properties.
Real Estate Transfer Taxes and Land Banks
The Nantucket Land Bank demonstrates how dedicating real estate transfer tax revenues to a public land acquisition program can successfully protect coastal and open-space resources – offering a potential model for Maine to fund coastal access and working waterfront preservation, though implementation would require careful consideration of political, legal, and market dynamics.
Tremont Bond Financing
Bond financing – such as the Town of Tremont’s voter-approved purchase of working waterfront land using a local bank loan – offers a politically feasible tool in Maine for supporting coastal access and land banking when increases to the real estate transfer tax are unlikely to succeed.