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Page 1 of 2 Variance Guidance Series – OHWL Setback, Updated 10/10/2012 Shoreland & Floodplain Variance Guidance Series This is one of a series of examples developed as guidance for considering variance requests along lakes and rivers. Consult your local shoreland, floodplain, and river‐related ordinances. Why are setbacks from the OHWL important? The Ordinary High Water Level (OHWL) is a dynamic area of high biodiversity and ecological function, as well as the regulatory line that separates local land use and state public waters jurisdictions. Setbacks from the OHWL are established in statewide rules and administered through local ordinances to ensure adequate spacing between structures and public waters to protect against runoff and pollution, and to preserve the natural shoreline. Local governments have limited discretion to deviate from - or grant a variance to - a required setback. They may do so only if all of the variance criteria established in state statutes and their local ordinances are met. In evaluating such requests, local governments must examine the facts, determine whether all statutory and local criteria are satisfied, and develop findings to support the decision. If granted, local governments may impose conditions to protect resources. An example OHWL variance request, with considerations, is provided below. Example OHWL Setback Variance Request A property owner requests a variance to construct a 1000 square foot addition on an existing home on a lake. The proposed addition would be located 75 feet from the OHWL of the lake instead of 100 feet as required by the local shoreland ordinance. The property owner claims that the addition is needed to provide extra space for a growing family, that it will improve the value and appearance of the property, and that there is no other reasonable location on the property due to the design of the home and an adjacent wetland. Considerations for Findings A good record and findings help keep communities out of lawsuits and help them prevail if they find themselves in one. In evaluating the facts and developing findings for this variance request, all of the following statutory criteria must be satisfied, in addition to any local criteria:  Is the variance in harmony with the purposes and intent of the ordinance? Considering a variance request is a balancing test that requires weighing the need of an individual property owner against the purposes of the local shoreland regulations - in this case a setback from the OHWL - for protecting public waters. Statewide Shoreland Management Rules establish structure setbacks from the OHWL for several reasons, including but not limited to managing the effects of shoreland crowding, preventing pollution of surface water, and maintaining property values and natural characteristics of shorelands. These regulations are implemented through local ordinances. Considerations: What are the purposes of the OHWL setback as established in the local shoreland ordinance – what is it intended to prevent or protect? Will deviating from the required OHWL setback on this property undermine the purposes and intent? Why or why not?  Is the variance consistent with the comprehensive plan? The local comprehensive plan establishes a framework for achieving a community’s vision for the future. Most plans contain goals and policies for protecting natural resources and shorelands, as well as maps that identify areas of high risk or with high ecological value where development should be avoided. The variance request must be considered with these goals and policies in mind. Maps should be consulted to determine if the property is within any areas identified for protection. Considerations: Which goals and policies apply? Is allowing structural encroachment within the OHWL setback area on this property consistent with these goals and policies? Why or why not? OHWL Setbacks Grading Limits