POLAND — Zoning changes have taken effect, bringing the town into compliance with the state’s shoreland zoning requirements for four specific parcels of land, including popular Cyndi’s Dockside Restaurant.

The changes appear to resolve a controversy over a third dock added by the restaurant’s owner on Middle Range Pond when the property was zoned improperly in the eyes of the state. The town is considering the dock grandfathered under previous zoning rules.

The issue became public in April when a resident questioned whether the town’s Planning Board should have approved a request for a third dock at Cyndi’s Dockside given its location in a shoreland area on Middle Range Pond. At the time, the restaurant was designated on town maps to be in a Village 1 zone, and not in a shoreland category. Shoreland zones generally have more strict requirements.

Seven months earlier in October 2021, the Department of Environmental Protection sent a letter to Scott Neal, Poland’s Code Enforcement Officer, about a “significant deficiency.” The letter indicated that four locations, including the lot that contains Cyndi’s Dockside, should have been designated as shoreland on Poland’s zoning map. The three other shoreland areas had no zoning designation at all, while Cyndi’s Dockside was noted as Village 1.

The letter, authored by Colin Clark, shoreland zoning coordinator for the DEP, stated that the areas should be locally reviewed and have a shoreland zone designation applied to them.

Clark’s letter also required all shoreland areas be subject to zoning to follow the state’s Mandatory Shoreland Zoning Act.

In part, the act reads: “Shoreland areas include those areas within 250 feet of the normal high-water line of any great pond, river or saltwater body, within 250 feet of the upland edge of a coastal wetland, within 250 feet of the upland edge of a freshwater wetland except as otherwise provided in section 438-A, subsection 2, or within 75 feet of the high-water line of a stream.”

In response, Poland approved the act as an amendment to its Comprehensive Land Use Code (CLUC) ordinances at its April 2022 town meeting. The town then received conditional approval for the amendment in its CLUC in a June correspondence signed by DEP Commissioner Melanie Loyzim. The DEP reviews and approves all CLUC ordinances and zoning pertaining to shoreland districts.

As part of the conditional approval, the town was told it must amend its zoning map involving the four areas mentioned in Clark’s October letter. The DEP said the town’s zoning map “revealed …  significant deficiency” and failed “to establish the zoning districts for some properties located in the shoreland zone.”

The DEP instructed the town to change Cyndi’s Dockside zoning from Village 1 to Limited Commercial. According to shoreland ordinances, a Limited Commercial district “includes areas of two or more contiguous acres in size devoted to a mix of residential and low intensity business and commercial uses.”

The other three areas were to be classified as either Limited Residential or Resource Protection.

Between Clark’s October 2021 letter and the June 2022 conditional approval, resident Jacob Legee appeared at an April Select Board meeting and raised questions on why the Planning Board allowed Cyndi’s Dockside to add a third dock in July 2020.

Legee, who lives near Middle Range Pond, argued that the lake was getting crowded, adding he was concerned the pond’s water quality was in jeopardy. He believed the Planning Board erred in giving the restaurant a Village 1 classification and not a shoreland category due to its proximity to the water.

Mike Morse, of Morse Environmental, whose company installed the dock, told the Planning Board in 2020 that “Shoreland zoning standards don’t specifically apply to this project.”

Clark, with the DEP, told the Sun Journal that when Legee contacted him with questions about state shoreland zoning law, “I had advised Jacob (Legee) that Cyndi’s Dockside property seems to have been pulled from the shoreland zone some time ago, which is not consistent with the ordinance or state law given the following standard that is in both places.”

Clark also said, “I have informed the town of this and we are working through the process of getting the maps rectified.”

Legee failed in an attempt to reverse the Planning Board’s decision at an Appeals Board hearing in July of 2021. The appeal was denied in part because it was made more than 45 days after the site plan was approved in 2020.

Why Cyndi’s Dockside property was not given the correct shoreland zoning designation under state law is not clear. Town officials including Neal, Poland’s code enforcement officer, pointed fingers at the DEP, saying if the town had it wrong, the DEP had over 20 years to tell the town to amend the map.

“The fact is, the DEP reviewed these maps for the last 20 years and those properties were omitted then,” Neal said.

The designation of Cyndi’s Dockside property was changed to Village 1 in 2001.

Deputy Town Manager Nikki Pratt pointed out that in 2005, three other properties along Middle Range Pond, neighboring Cyndi’s Dockside lot, were found to not be designated as in the shoreland zone and the DEP required the town to change them to shoreland Limited Residential.

DEP never said anything about the lot Cyndi’s Dockside is on, so it remained with its non-shoreland Village 1 designation.

“There are some areas in town that have been given the wrong zoning characterization” said Town Manager Matt Garside. “They have been identified and we’re going to fix them. It’s not that someone’s been given special treatment or anything like that.”

Garside added, “You can go into any town in Maine and find the same sort of thing” with correcting and changing map zoning characterizations.

Garside echoed Neal’s comment: “What has the DEP been doing for the past 20 years? Why did they not identify any of these past discrepancies when they reviewed them? Do they review them? Or do they just smoke cigarettes, drink Cokes and collect a check?”

He added, “I’ve been here five years now and we’ve not had a year where we’ve made some small change, update, or clarified something” in land use ordinances.

Based on his experience, Clark responded, “Municipalities do change the district designations for properties over time if the town wants to encourage or discourage development of certain kinds … but this is not a frequent occurrence.”

He added, “It is infrequent that a municipality omits properties from their shoreland zoning map.”

Asked why the DEP didn’t notice the improper lot designations on the town’s zoning maps until 2021, Clark responded, “Since 2013 (in his current position) it appears that the town has submitted map amendments in 2013, 2014, 2017 and finally 2022.

“I have looked through the file and when Poland has sent in amendments to their map they send in a snapshot of the area in question for review. There was one image that had the whole town but it is a miniature version half the size of an 8.5-by-11-inch sheet of paper and you can’t see anything with any detail. … It is fairly normal for towns to send in a snapshot of the area they are dealing with rather than the full-scale map.”

Asked for a response to Garside’s questions about what the DEP has been doing for the last 20 years, DEP Deputy Commissioner David Madore said Thursday, “The department has no comment.”

Determining whether a change to a property violates zoning regulations can be open to interpretation. For that reason, it is impossible to know whether any changes made to the four properties in question, including the third dock at Cyndi’s Dockside, would have been allowed if the properties had been properly zoned in the eyes of the DEP.

Town officials have indicated no interest in requesting any changes.

When Legee spoke before the Planning Board in April, Co-chairman James Porter said the third dock is grandfathered as an existing marina.

“We approved (the project based) on what was correct in here (pointing to the Comprehensive Land Use Code book),” he said. “If you have a different interpretation as an aggrieved party, there is a solution for that in order to go about it.”

Legee responded, “I shouldn’t have to go to court to get simple questions answered.”

Porter replied, “Once again, would, should, could, whatever, all I am saying is we approved it based on what we believed is correct in” the Comprehensive Land Use Code.

While the town must vote on the changes to its zoning maps, the new shoreland zoning regulations for the four parcels in question are now in effect, according to Clark.

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