October 30, 2006
Shoreline skirmish | Downeast landowners are mobilizing against shorebird protections they say have decimated the value of waterfront property
By Chris Churchill
To lawmakers, the bill seemed anything but controversial. Designed to protect threatened ocean shorebirds such as plovers and sandpipers, the regulations appeared so innocuous that they sailed through the Legislature last spring on nearly unanimous votes.
But in the months since, one aspect of the bird-protection measure, which went into effect in June and requires that most new buildings be set at least 250 feet back from coastline containing shorebird habitat, has set off a firestorm among outraged property owners convinced their land has suddenly plummeted in value. There have been angry, crowded meetings with officials from the Department of Environmental Protection. And several lawmakers have publicly wondered how the legislation slipped passed them.
The anger is hottest in Washington County, if only because it has the most coastal property available for development. "It's one of the few industries that we have down here," says George West, a real estate broker in coastal Milbridge. "We're very limited in terms of what we have for economic development, and that was one of the few growth areas."
The complaint against the rules is simple: The setback from the high-tide line, which more than tripled the previous 75-foot requirement, pushes homes too far from the ocean. "It goes to value," West says. "People are buying property on the coast here for the view and if you go back 250 feet, you're not going to have the view."
The DEP estimates nearly 11% of Maine's shoreline is affected by the regulation. And the department figures that in Washington County nearly 18% of the coast is affected ˆ and that's where landowners are organizing to get the rules repealed. "This is too important to fold up and say, 'Okay, that's the way it is,'" West says. "It's too important to the economy down here."
Supporters of the regulations find themselves trying to calm the storm, saying much of the anger stems from misunderstanding over how much of the coast is covered. They note that already developed lots in the zone can build additions and other new construction with an easy-to-obtain permit. And they insist the rules are flexible enough to allow a home on nearly every coastal lot. Landowners whose lots are fewer than 250 feet deep, for example, can apply to the state for an exemption.
Rep. Ted Koffman, a Democrat from Bar Harbor, sponsored the legislation and says the rules were years in the crafting. He deems them anything but an economic threat. "I'm a strong believer that protecting natural resources is essential to our economic future," he says. "In a larger sense, it is our economic future."
Koffman argues that a coastline developed appropriately ˆ by which he means spared the wall-to-wall development that mars most of the Atlantic coast ˆ will attract visitors downeast and prop land values. To him, the unsullied beauty of places like Washington County, and the wildlife such beauty supports, is the region's great drawing card. "For east of the Mississippi, we have something very special," says Koffman, an administrator at the College of the Atlantic. "Protecting those assets adds value to real estate. That is something that is rarely mentioned by the real estate industry ˆ and I'm surprised."
"Where's the water?"
The shorebirds that the rules aim to protect visit Maine briefly, stopping in July, August and September to refuel on a long migratory journey from the North American arctic to South and Central America. "This is a time when they're finished breeding, so they're in a weakened condition, and they have a long trip ahead of them," says Jody Jones, a biologist with Maine Audubon in Falmouth. "Some of these birds double their weight while they're in Maine."
The sandpipers and plovers are particularly fond of inter-tidal zones, feeding on invertebrates as the ebb tide recedes. But the population of such migratory birds is declining, and biologists say a likely reason is increasing coastal development. "They need to stop and they need to eat an incredible amount for the journey ahead," says David Littell, commissioner of the DEP. " If we lose that habitat, then the viability of the species becomes an issue."
Many downeast residents, however, are worried about the viability of their land. Kevin Barbee, for example, owns four subdivisions in Washington County and believes he has roughly 30 houselots affected by the new setback. Just months ago, he says, his waterfront, two-acre lots in towns such as Addison, Steuben and Lamoine would have fetched $150,000 to $180,000. But now he believes he could get no more than $70,000 ˆ and that's a blow he can't sustain: "I've financed everything I have to do this stuff," Barbee says. "I'm not rich by any means, and it's not like I can afford to lose that kind of money."
Barbee adds that he has not sold a lot since regulations became law. "We've had some people walk right away," he says. "They're like, 'Where's the water?'"
Like many landowners in his area, Barbee first learned of the setback requirement at a local meeting held by DEP in early September and says he was "dumbfounded." So were many others, leading some to wonder how the rules passed through the Legislature with so little attention.
It's a question some lawmakers are asking. The bill passed unanimously in the Natural Resources Committee, which contains both environmentalists and champions of property rights. That accord was a signal to the full Legislature that the law was not controversial. The bill passed in the House on a 128-1 vote, and was not even subjected to a roll call vote in the Senate.
Rep. Robert Crosthwaite, a Republican from Ellsworth who sheepishly concedes he voted for the law, says nobody, not even the lobbyists who comb over legislation, raised red flags. "We're usually pretty informed," he says, "but just by the numbers of the vote, it's obvious that no one debated it or had any problems with it."
Crosthwaite and other lawmakers certainly have problems with the legislation now, partly because they've been besieged with calls from upset constituents. "Some are calling it a taking," Crosthwaite says, "and I think that if it's not a taking, it's the closest thing to it."
Misinterpreted maps?
In Maine, legal protections for shorebirds are not new. The Legislature in 1988 passed a law to protect shoreland bird habitat, according to the DEP, and passed the 250-foot setback rule in 1994. But the lack of maps accurately depicting where the birds rest and feed made the law all but useless. "In statute, it looked like it was protected, but in reality it wasn't," Littell says. "[The state] never had the resources to map the coast."
But after last year requesting that the DEP look at strengthening bird habitat protections, lawmakers this year approved language that kicked the setback into effect in a bill that included protections for bird habitat near vernal pools and other shorelines. The rules on vernal pools ˆ seasonal wetlands favored by frogs and salamanders ˆ attracted significant attention and were thoroughly vetted. Legislators say it's possible the hue-and-cry over vernal pools caused few to read further into the legislation, though Littell insists the setback requirement also was subjected to hearings and debate.
Littell concedes, though, that "it's clear in retrospect that some lawmakers didn't read the rules and that issues weren't fairly aired."
Gov. John Baldacci has asked Littell to review the 250-foot-setback and report back to him, and the commissioner predicts the Legislature will revisit the setback soon after its session begins in January, a move he supports. "Not because the process didn't work before," he says, "but because that's our obligation as public officials."
Sen. Kevin Raye, a Republican from the Washington County town of Perry, already has proposed a bill to reconsider the habitat rules and calls the quiet passage of the 250-foot setback a "disturbing" failure. "This is a very significant departure from previous policy," Raye says, "and it occurred without the Legislature debating it."
It's possible that at least some of the anger over the setback results from a simple misunderstanding of maps issued by the DEP. That's because the setback rule passed along with another rule, aimed to protect tidal waterfowl habitat, that restricts construction out from the shore and into tidal flats ˆ prohibiting, for example, docks or marinas in certain areas. The tidal-area construction rule covers a much larger area of shoreline, and maps distributed along the coast show that land in bright red.
Many landowners, it seems, assumed those red-shaded areas also were affected by the 250-foot-setback. "That would look very scary, obviously," says Mike Mullen, an enforcement officer for the DEP's Bureau of Land and Water Quality. "But that's not the case, and that's the point we have to help people understand."
Bird lovers, fearful that the repeal of the setback law could doom entire species, are urging that landowners ˆ and legislators ˆ be patient. Jones, from Maine Audubon, says studies have shown that pushing development further from the shore helps the skittish little birds. "I think there's a lot of concern [about the setback] and I understand that concern," she says. "But I'd like to have people experience this law before they repeal it. I think it's a reasonable approach, and I think it's needed."
Opponents of the rules, however, don't plan on waiting around. Instead, they are organizing. George West says he and others who dislike the law are creating an association ˆ its name has not been determined ˆ comprising waterfront landowners in Washington and Hancock counties. The point, he says, is to keep the spotlight on the shorebird setback once the Legislature reconvenes.
Still, despite the uproar, some downeast residents are skeptical the setback will be overturned, because the rule mostly affects rural stretches of the coastline that lack political clout. "We're Washington County," Barbee says. "What do people in Portland, Freeport or Falmouth care? Their land is already developed."
But in the months since, one aspect of the bird-protection measure, which went into effect in June and requires that most new buildings be set at least 250 feet back from coastline containing shorebird habitat, has set off a firestorm among outraged property owners convinced their land has suddenly plummeted in value. There have been angry, crowded meetings with officials from the Department of Environmental Protection. And several lawmakers have publicly wondered how the legislation slipped passed them.
The anger is hottest in Washington County, if only because it has the most coastal property available for development. "It's one of the few industries that we have down here," says George West, a real estate broker in coastal Milbridge. "We're very limited in terms of what we have for economic development, and that was one of the few growth areas."
The complaint against the rules is simple: The setback from the high-tide line, which more than tripled the previous 75-foot requirement, pushes homes too far from the ocean. "It goes to value," West says. "People are buying property on the coast here for the view and if you go back 250 feet, you're not going to have the view."
The DEP estimates nearly 11% of Maine's shoreline is affected by the regulation. And the department figures that in Washington County nearly 18% of the coast is affected ˆ and that's where landowners are organizing to get the rules repealed. "This is too important to fold up and say, 'Okay, that's the way it is,'" West says. "It's too important to the economy down here."
Supporters of the regulations find themselves trying to calm the storm, saying much of the anger stems from misunderstanding over how much of the coast is covered. They note that already developed lots in the zone can build additions and other new construction with an easy-to-obtain permit. And they insist the rules are flexible enough to allow a home on nearly every coastal lot. Landowners whose lots are fewer than 250 feet deep, for example, can apply to the state for an exemption.
Rep. Ted Koffman, a Democrat from Bar Harbor, sponsored the legislation and says the rules were years in the crafting. He deems them anything but an economic threat. "I'm a strong believer that protecting natural resources is essential to our economic future," he says. "In a larger sense, it is our economic future."
Koffman argues that a coastline developed appropriately ˆ by which he means spared the wall-to-wall development that mars most of the Atlantic coast ˆ will attract visitors downeast and prop land values. To him, the unsullied beauty of places like Washington County, and the wildlife such beauty supports, is the region's great drawing card. "For east of the Mississippi, we have something very special," says Koffman, an administrator at the College of the Atlantic. "Protecting those assets adds value to real estate. That is something that is rarely mentioned by the real estate industry ˆ and I'm surprised."
"Where's the water?"
The shorebirds that the rules aim to protect visit Maine briefly, stopping in July, August and September to refuel on a long migratory journey from the North American arctic to South and Central America. "This is a time when they're finished breeding, so they're in a weakened condition, and they have a long trip ahead of them," says Jody Jones, a biologist with Maine Audubon in Falmouth. "Some of these birds double their weight while they're in Maine."
The sandpipers and plovers are particularly fond of inter-tidal zones, feeding on invertebrates as the ebb tide recedes. But the population of such migratory birds is declining, and biologists say a likely reason is increasing coastal development. "They need to stop and they need to eat an incredible amount for the journey ahead," says David Littell, commissioner of the DEP. " If we lose that habitat, then the viability of the species becomes an issue."
Many downeast residents, however, are worried about the viability of their land. Kevin Barbee, for example, owns four subdivisions in Washington County and believes he has roughly 30 houselots affected by the new setback. Just months ago, he says, his waterfront, two-acre lots in towns such as Addison, Steuben and Lamoine would have fetched $150,000 to $180,000. But now he believes he could get no more than $70,000 ˆ and that's a blow he can't sustain: "I've financed everything I have to do this stuff," Barbee says. "I'm not rich by any means, and it's not like I can afford to lose that kind of money."
Barbee adds that he has not sold a lot since regulations became law. "We've had some people walk right away," he says. "They're like, 'Where's the water?'"
Like many landowners in his area, Barbee first learned of the setback requirement at a local meeting held by DEP in early September and says he was "dumbfounded." So were many others, leading some to wonder how the rules passed through the Legislature with so little attention.
It's a question some lawmakers are asking. The bill passed unanimously in the Natural Resources Committee, which contains both environmentalists and champions of property rights. That accord was a signal to the full Legislature that the law was not controversial. The bill passed in the House on a 128-1 vote, and was not even subjected to a roll call vote in the Senate.
Rep. Robert Crosthwaite, a Republican from Ellsworth who sheepishly concedes he voted for the law, says nobody, not even the lobbyists who comb over legislation, raised red flags. "We're usually pretty informed," he says, "but just by the numbers of the vote, it's obvious that no one debated it or had any problems with it."
Crosthwaite and other lawmakers certainly have problems with the legislation now, partly because they've been besieged with calls from upset constituents. "Some are calling it a taking," Crosthwaite says, "and I think that if it's not a taking, it's the closest thing to it."
Misinterpreted maps?
In Maine, legal protections for shorebirds are not new. The Legislature in 1988 passed a law to protect shoreland bird habitat, according to the DEP, and passed the 250-foot setback rule in 1994. But the lack of maps accurately depicting where the birds rest and feed made the law all but useless. "In statute, it looked like it was protected, but in reality it wasn't," Littell says. "[The state] never had the resources to map the coast."
But after last year requesting that the DEP look at strengthening bird habitat protections, lawmakers this year approved language that kicked the setback into effect in a bill that included protections for bird habitat near vernal pools and other shorelines. The rules on vernal pools ˆ seasonal wetlands favored by frogs and salamanders ˆ attracted significant attention and were thoroughly vetted. Legislators say it's possible the hue-and-cry over vernal pools caused few to read further into the legislation, though Littell insists the setback requirement also was subjected to hearings and debate.
Littell concedes, though, that "it's clear in retrospect that some lawmakers didn't read the rules and that issues weren't fairly aired."
Gov. John Baldacci has asked Littell to review the 250-foot-setback and report back to him, and the commissioner predicts the Legislature will revisit the setback soon after its session begins in January, a move he supports. "Not because the process didn't work before," he says, "but because that's our obligation as public officials."
Sen. Kevin Raye, a Republican from the Washington County town of Perry, already has proposed a bill to reconsider the habitat rules and calls the quiet passage of the 250-foot setback a "disturbing" failure. "This is a very significant departure from previous policy," Raye says, "and it occurred without the Legislature debating it."
It's possible that at least some of the anger over the setback results from a simple misunderstanding of maps issued by the DEP. That's because the setback rule passed along with another rule, aimed to protect tidal waterfowl habitat, that restricts construction out from the shore and into tidal flats ˆ prohibiting, for example, docks or marinas in certain areas. The tidal-area construction rule covers a much larger area of shoreline, and maps distributed along the coast show that land in bright red.
Many landowners, it seems, assumed those red-shaded areas also were affected by the 250-foot-setback. "That would look very scary, obviously," says Mike Mullen, an enforcement officer for the DEP's Bureau of Land and Water Quality. "But that's not the case, and that's the point we have to help people understand."
Bird lovers, fearful that the repeal of the setback law could doom entire species, are urging that landowners ˆ and legislators ˆ be patient. Jones, from Maine Audubon, says studies have shown that pushing development further from the shore helps the skittish little birds. "I think there's a lot of concern [about the setback] and I understand that concern," she says. "But I'd like to have people experience this law before they repeal it. I think it's a reasonable approach, and I think it's needed."
Opponents of the rules, however, don't plan on waiting around. Instead, they are organizing. George West says he and others who dislike the law are creating an association ˆ its name has not been determined ˆ comprising waterfront landowners in Washington and Hancock counties. The point, he says, is to keep the spotlight on the shorebird setback once the Legislature reconvenes.
Still, despite the uproar, some downeast residents are skeptical the setback will be overturned, because the rule mostly affects rural stretches of the coastline that lack political clout. "We're Washington County," Barbee says. "What do people in Portland, Freeport or Falmouth care? Their land is already developed."
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