| "The entire coast of Maine is beautiful. What do you do with that?" | |
| Dawn Hallowell, Southern Regional Office of the Maine DEP’s Division of Land Resource Regulation |
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When admiring a wetlands view, one person may find that a dock mars the aesthetic value, while another may feel the dock does not detract from and in fact enhances the landscape. Scenarios like this are faced by many coastal resource managers whose regulatory authority includes protecting scenic and aesthetic values, but whose decisions can end up being challenged in court because visual impacts are so hard to define.
Coastal managers in Maine have developed a regulatory rule for assessing and mitigating impacts to scenic and aesthetic resources.
"People hear ‘visual impact’ and they think you can’t be specific in describing how you’re going to analyze them," says Peggy Bensinger, Maine assistant attorney general. "The lesson we have learned is that it is possible to set forth with some specificity the factors that you consider in determining visual impacts."
"This rule is really helping us know a scenic and aesthetic impact when we see it," says Judy Gates, assistant director for the Environmental Office of the Maine Department of Transportation. "We can now assess what the degree of impact is, and do it in a way that is defensible and will hold up in court." So far, she notes, none of the decisions made under the rule have been challenged.
The rule defines visual impacts, provides tools and a consistent process for the program staff to evaluate the visual impacts of proposed projects, and determines when an assessment should be done. Assessments can often identify how impacts can be avoided, mitigated, or offset.
The rule has wide application to coastal, as well as inland, water bodies and may be transferable to other states whose regulations address visual impacts.
Upholding the Law
Since 1988, Maine’s Natural Resources Protection Act has required that activities not "unreasonably interfere with existing scenic, aesthetic, recreational, or navigational uses."
"We had this standard for protecting scenic and aesthetic uses, but nothing further was said about what that meant," says Gates, who helped develop the rule while working as the licensing coordinator for the Division of Land Resource Regulation in Maine’s Department of Environmental Protection (DEP). An effort was initiated in the early 90s to try to create more specific standards, but it wasn’t successful at clarifying the rule.
"There were no set guidelines to help us make decisions," notes Dawn Hallowell, project manager for the Southern Regional Office of the Maine DEP’s Division of Land Resource Regulation. "The entire coast of Maine is beautiful. What do you do with that?"
A number of cases where permits for docks and piers were denied because of their scenic and aesthetic impacts were contested by the applicants and ended up in court.
Bensinger notes, "We were challenged in a number of ways. One component of the challenges was that the statute was unconstitutionally vague."
Rule Making
In 2000, Gates developed a plan to clarify the scenic and aesthetic rule. She examined the public process that had been tried in the 90s and looked to other states for examples. What she found were other states struggling with many of the same issues.
"I was looking for what’s missing," Gates says. "What was the argument that keeps getting these decisions flipped?"
In her research, she discovered a U.S. Forest Service evaluation process that contained a matrix that "really laid out the visual criteria for landscape compatibility," Gates says. After contacting the publication’s author, Gates was given advice and approval to use the matrix.
Gates also pulled together a working group that consisted of two landscape architects who are visual impact professionals, as well as a visual assessment consultant, marine resources staff members, planning officials, and other stakeholders.
"I didn’t want an extended stakeholder process," Gates explains. "The rule we were creating didn’t appear to warrant it. I really just wanted to get the input of the people in the business of doing this."
The group, she says, "really came to consensus, even though we were not working in a consensus-based process." Another benefit of the working group is that she was able to anticipate objections that were raised during public hearings.
With few changes, the state Board of Environmental Protection unanimously approved the rule, which went into effect in June 2003.
Avoiding Impacts
The rule calls for avoiding impacts to existing scenic and aesthetic uses by relying on "visual compatibility with surroundings" using planning, siting, design, and offsets, explains Gates.
The department’s determination of impact is based on the visual elements of the landscape, such as landscape compatibility, scale contrast, and spatial dominance.
Landscape compatibility includes color, form, line, and texture. Compatibility is determined by whether the proposed activity differs significantly from its existing surroundings.
Scale contrast is the size and scope of the project, and spatial dominance is the degree to which a proposed project would dominate the landscape.
The rule applies to any structure in, on, or over a protected natural resource, or adjacent to resources of significance. These could range, Gates says, from a national landmark to a wildlife refuge to a trail to a site on the National Register of Historic Places. It can include rivers, streams, great ponds, freshwater and coastal wetlands, sand dune systems, significant wildlife habitat, and fragile mountain areas.
An issue that had to be decided was whose view the state was protecting. "Our decision from reading the law was that we were protecting the public’s view," Gates notes.
Making It Objective
Steps spelled out in the rule guide staff members and applicants through the process for assessing the visual impact of a proposed project.
A permit applicant must fill out a one-page initial assessment form and provide photos of the project site and surrounding areas. If a scenic resource is determined to be present, an assessment matrix and decision matrix are completed by staff members.
The assessment matrix provides a number scale for assessing landscape compatibility. The resulting numeric score is the impact rating, which can be severe, strong, moderate, weak, or negligible. The number is then plugged into the decision matrix, which quickly shows if the project is unacceptable, acceptable with major mitigation, acceptable with mitigation, acceptable with minor mitigation, or whether it has little or no impact.
The procedure "takes a subjective judgment and measures it objectively," says Gates. The numbers fall within a range so that numerous people filling out the matrix will come up with similar scores.
Seeing for Yourself
If it appears that there will be significant adverse impacts, staff members can request that the applicant provide a visual impact assessment, which is similar to a "photo simulation where they can visually impose the project on the site so we can see what it may look like to help us determine the impact," explains Dawn Hallowell.
The criteria also give staff members the ability to suggest design adjustments that would enable a proposed project to move from an unacceptable impact category to a project that could be approved.
Elimination Round
Gates says that most projects are determined not to have a visual impact with the applicant’s self-assessment. "Unless it’s something that is going to be viewed by the public, it’s not going to be looked at. Most projects get eliminated pretty quickly."
Linda Kokemuller, licensing coordinator for the Southern Regional Office of the Maine DEP’s Division of Land Resource Regulation, notes that staff members do make "a lot more visits to project sites" to assess scenic impacts for themselves, and "discuss among themselves how to implement the rule and what the different aspects of the rule mean on the ground."
"One thing I know staff still struggles with," acknowledges Gates, "is whether they are doing the evaluations correctly. If I could go back and do it again, I would make sure to bring someone in to provide them with training to give them a sense of confidence. From where I sat, I could see that all the decisions were very consistent, but one person making decisions a few projects at a time may not be so sure."
Transferable
While the rule was written to address a Maine statute, Hallowell believes the process they set out would be "quite transferable" to other coastal states.
"There is nothing in the rule that is specific to Maine," Hallowell says. "It’s very generic. That wasn’t done intentionally, but that’s part of what demonstrates its strength. It works well in different settings."
Gates is now working with the State Planning Office to develop a model ordinance that would give municipalities the tools to do the same set of assessments at the local level.
"This is the way good policy is supposed to happen," Gates says. "We had public input, we got input from the people who would be using it, and we considered the history and the existing policy."
Gates adds, "I would love to see it used as much as possible or improved upon. If someone else could put their stamp on it to make it clearer or more defensible, then I think that would be great."
For more information on Maine’s regulatory rule for assessing and mitigating impacts to scenic and aesthetic resources, contact Judy Gates at (207) 624- 3097 or judy.gates@maine.gov. Your may also contact Linda Kokemuller at (207) 822-6329 or linda.k.kokemuller@maine.gov. For legal questions regarding this rule, contact Peggy Bensinger at (207) 626-8578 or peggy.bensinger@maine.gov.
