State versus Locally approved Plans

(Caveat: The following information is based on interpretation of state statutes and regulations by staff members of the Urban Harbors Institute of the University of Massachusetts Boston and are presented here to provide general background. We believe that they are substantially correct. However, final interpretation of the statutes and regulations cited are the purview of the Massachusetts Department of Environmental Protection (DEP). Contact the Regional Office of DEP for more detailed explanations and interpretations.)

In simple terms, A state approved Municipal Harbor Plan gives the Town of Nantucket the ability to provide additional language and instruction to the Massachusetts Department of Environmental Protection in matters that pertain to Chapter 91 issues (waterfront development below the historical high tide line). A state approved plan gives Nantucket more local control in areas of jurisdiction under the DEP, but state approval takes time and costs more and most provisions provided by a state plan can be more easily and quickly provided through the implementation of local zoning, bylaws, and regulations that accurately reflect the locally approved harbor plan.

More thoughts on state versus local plans and DEP decisions

Tasks associated with a state approved municipal harbor plan

Chart comparing State versus Local approval

4-12-06 UHI memo to the BOS regarding State versus Local decision

Question:
What are the differences between a state-approved Municipal Harbor Plan and a locally approved plan? What are the benefits to the Town of Nantucket of each?

Answer:
(Caveat: The following response is based on interpretation of state statutes and regulations by staff members of the Urban Harbors Institute of the University of Massachusetts Boston and are presented here to provide general background. We believe that they are substantially correct. However, final interpretation of the statutes and regulations cited are the purview of the Massachusetts Department of Environmental Protection (DEP). Contact the Regional Office of DEP for more detailed explanations and interpretations.)

A Municipal Harbor Plan is one approved by the Massachusetts Secretary of Environmental Affairs in accordance with state regulations (301 CMR 23.00) and any associated written guidelines provided by the Massachusetts Coastal Zone Management Office (CZM). The process leading to a Municipal Harbor Plan involves developing a scope of work in conjunction with the CZM and meeting the requirements of the regulations mentioned above. It is not uncommon for the Municipal Harbor Planning process to take well over a year from inception to final approval. Initial plans are typically approved for a period of five years. Renewals are often approved for up to ten years. A Municipal Harbor Plan maintains its legal standing only as long as the state approval specifies.

There is no formal, regulatory description of local, harbor plans. These may, therefore, be developed and implemented in a wide variety of ways as decided at the municipal level. Such plans may be adopted through a Board of Selectmen, a Planning Board, or some other administrative entity, or through a Town Meeting vote. The level at which the plan is adopted depends largely on the means of implementation, e.g., a plan that calls for a rezoning of the waterfront will need initial approval by the Planning Board and a subsequent positive vote at a town meeting; a plan that calls for increased monitoring of water quality can be implemented through an administrative action within a town agency.

The Municipal Harbor Plan has its most significant regulatory impacts through its use in project review and licensing by the Massachusetts Department of Environmental Protection (DEP). Through the Public Waterfront Act (or Chapter 91 as it is commonly referred to), the DEP is charged with protecting the public’s rights in tidelands (those areas where the tide rises and falls—and where it historically rose and fell prior to human-placed fill.

A Municipal Harbor Plan offers the benefit of developing harbor-specific guidance for DEP to use in making Chapter 91 decisions. While Municipal Harbor Plans often contain some Chapter 91-related guidance that is generic or conceptual in nature, it is also common to find more detailed stipulations that are specific to individual projects or sites. For example:

  • The Chatham plan includes measures to ensure that historic land views from the waterside are retained
  • The Provincetown plan provides for significant expansion in the number of “perpendicular” access ways connecting its main commercial street to the waterfront.
  • The Edgartown plan identifies preferred building materials to be used along the “village waterfront” segment of its harbor, to maintain traditional appearances.

There are two general types of guidance that a Municipal Harbor Plan can provide for Chapter 91 decisions.

A Municipal Harbor Plan may address issues that are not specifically mentioned in the Chapter 91 regulations—so long as any requirements in the plan are consistent with state coastal management policies and are complementary in effect with the regulatory principles underlying the Public Waterways Act program.

A Municipal Harbor Plan may also provide guidance for Chapter 91 decisions by addressing standards contained within the Chapter 91 regulations. This may be accomplished in two ways:

  • a. Guidance through Substitution
    Chapter 91 includes a number of use restrictions and dimensional limits that govern the licensing of nonwater-dependent structures. An approved Municipal Harbor Plan can modify these standards; substituting locally derived standards for those in the state regulations. An illustration of this concept involves the site coverage limit on nonwater-dependent buildings—Chapter 91 regulations generally call for at least 50% of every project site being reserved as open space. An approved Municipal Harbor Plan may modify these standards to mandate greater percentages of open space in one part of the harbor and allow for greater building density in others. This option has been used in Boston and Salem Harbors to help shape development and use of the overall waterfront.

  • b. Guidance through Amplification
    The requirements a project must fulfill to obtain a Chapter 91 license include many discretionary standards. The regulations include many phrases such as, “a fair and equitable assignment of moorings”, “shall not interfere significantly with public rights of navigation”, “include reasonable measures to provide on-foot passage.” “Fair and equitable”, “interfere significantly”, or “reasonable measures” are not defined in the Chapter 91 regulations.

A Municipal Harbor Plan can be used to further guide the application of these discretionary standards to meet local interests. This does not mean that a Municipal Harbor Plan may contradict the provisions of Chapter 91 regulations, but it does allow a community to establish guidelines for applying these general standards to specific situations.

Local zoning can address some of these topics, although the Town will have to decide whether it has sufficient authority to establish the standards it deems necessary. Only the state has the authority to protect some public interests in tidelands. Where the Town lacks authority to protect public trust issues, it may attempt to use zoning to reach the same end. However, due to protection of private property rights, this may lead to some form of compensation, or “trade-off” as a means to reach the desired goal.

A significant legal difference exists, however, between the authorities on which Chapter 91 and local zoning are based. Zoning is based on the “police powers”—the protection of public health, welfare, and safety—and all decisions must be justified under these powers. Chapter 91, however, is based on public property rights (certain property rights in tidelands are held in trust by the state for the benefit of the public, even though the land otherwise may be privately owned.) Decisions under Chapter 91, therefore have a wider latitude than merely public health, welfare, and safety.

There is no regulatory language to suggest that a Municipal Harbor Plan will lead to greater availability of state funding for implementation or other harbor-related activities. Experience has not shown any measurable difference between types of plans in the gaining state funds.

There is nothing in state statute or regulation to preclude a town developing both a local harbor plan and a Municipal Harbor Plan.

In determining whether a Municipal Harbor Plan or a local harbor plan is most suitable, the Town needs to determine the issues to be addressed and the steps necessary for their management. If sufficient management options exist at the local level, a Municipal Harbor Plan may not be necessary. If, however, it would be beneficial to use the Chapter 91 process in better managing waterfront issues, a Municipal Harbor Plan may be the ideal vehicle.