Posted by: Archipelago Law in Land Use, Property Law on April 5, 2023

Outdated and inaccurate flood maps have led to an overhaul of Federal Emergency Management Agency’s flood mapping which should be available to property owners, municipalities, and state governments as early as this year. These expanded floodplain designations may impede coastal development or force developers and private homeowners to purchase expensive flood insurance policies for new and existing structures. Certain amendments to regulatory applications have come with the proposed changes to alleviate adverse effects of restrictive development regulations associated with floodplain designations.

Property owners and municipalities utilize FEMA maps to protect against increasing flood risks caused by sea level rise and strengthening storm surges along Maine’s coastal corridor. Mapping provides a tool for municipalities and state agencies to develop regulation and procedures for building or improving development within flood hazard areas, enables communities to enact preventative planning initiatives, and creates a standard for flood insurance rating purposes. FEMA maps establish a base flood elevation for each particular floodplain. Each structure must be elevated a minimum one foot above that base flood elevation to qualify for flood insurance. The maps allocate specific zones for flood prone areas based on the probability of significant flood events.

The proposed and controversial floodplain mapping has been in flux for years with constant delays from FEMA to place them in circulation. FEMA claims the new maps will provide greater accuracy, consistency, and usability through implementation of aerial imagery, refined LiDAR contour data, and digital applications through Geographic Information Systems. However, the Agency is facing questions from municipalities and property owners regarding the science used for flood mapping. These groups have pushed back against FEMA mapping by proving deficiencies in hopes FEMA will correct any errors prior to implementation.

Because base flood elevations will rise in most areas and the requirement that lowest-floor elevation must be raised above the base flood elevation, the change would substantially impact the permitted height of living area for existing structures and may force them into non-conformity. The floodplain requirement to elevate a structure creates conflict with other regulations, particularly shoreland zoning. The State has done its part to alleviate the effects of development restrictions on existing structures resulting from the substantial increase in properties affected by expanded floodplain boundaries. The Legislature amended the definition of “Height” with the Mandatory Shoreland Zoning Act to include a separate designation for existing structures located within the floodplain. Existing structure height is now measured by the “the vertical distance between the bottom of the sill of the structure to the highest point of the structure, excluding chimneys, steeples, antennas and similar appurtenances that have no floor area.” New structures continue to be measured by the “vertical distance between the mean original grade at the downhill side of the structure, prior to construction, and the highest point of the structure” with those same exclusions.

Due to complex municipal, state, and federal land use permitting regulations, almost all land development projects within Maine require a heightened level of permitting and a keen understanding of regulatory authority. Projects large or small often require the expertise of trained land use professionals to help navigate the complexities required for every level of review. The advice of a qualified land use attorney should be sought to develop a strategic method to accomplish your development goals.


Michael J. Skolnick, Esq.

Archipelago Law, LLP