Category Archives: Critical Areas Laws

Little Dobbins 2014 – Critical Area Variances and the Assault Vehicle Exception

Little Dobbins 2014: Critical Areas Variances and the Right to an Island Driveway

Maryland’s highest court, the Court of Appeals, issued a decision on August 4, 2014 in Chesapeake Bay Foundation v. DCW Dutchship Island, LLC.  This is Little Island case in which the owner, with essentially no permits, demolished a small cottage and put up a mansion complete with a pool and lighthouse.   The new case upholds the decision to limit the variances from the 8000 square feet requested to the 3005 square feet that was granted by the Board of Appeals, and remands the case the Anne Arundel County Board of Appeals for further consideration of the boat ramp.  For additional background on the beginnings of this case, see https://www.waterfrontlaw.com/little-island-big-mess.).  The substantive portion of the decision is included below.

Mr. Anthony Lamartina, the 2008 Chairman of the Anne Arundel County Board of Appeals:, described the Little Island case in this way:

“I can unequivocally state that I have never seen, in all my 24 years on this Board, a violation of such a grand scale.  The Petitioner [Wagner] is a builder who has made his living in this County for longer than I have been with this Board.  Given all his experience, he elected to construct more than 8,000 feet of new impervious surface for his own residential use, including a pool, gazebo, walkways, driveway, without ANY permission – all entirely in the Critical Area buffer and obliterating any steep slopes and vegetation deemed unworthy by him.  Why risk his residence (or his reputation)?  He must have concluded that the positives obtained outweighed any possible negatives.”

Despite its concerns, in 2008 the Board of Appeals allowed the house to remain.  It did require “the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.”  Everyone involved appealed that decision and the case has already been through the appeals process once before.

Most of the issues addressed in this Court of Appeals decision were procedural and technical — such questions as whether CBF could participate at the Board of Appeals when it was not a party to the original hearing.  The Court did, however, reach the crucial question of whether the Anne Arundel County Board of Appeals correctly determined whether the variances to the Critical Areas restrictions were the minimum necessary to afford relief.

This 2014 Court of Appeals decision looked at the relevant factors involved in the variance approval by the Board of Appeals, and for the most part, it upheld what had been done.  It did have a question about the boat ramp/driveway into the water, that was allowed by the Board.  The Court held as follows:

“The Board implicitly concluded that the impervious surface covered by the new house could legitimately be increased beyond the footprint of the old house by demolishing pre-existing outbuildings with impervious surfaces totaling 1,094 square feet, and “transferring” or allotting part of that footage to the new house.  We do not argue with this point, and consider it a reasonable factual inference based on the evidence.  In this regard, it is meaningful that the Board did require the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.

“Had the Board stopped there, we would be affirming on this point.  Yet the Board, quite inexplicably, also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.  Similarly, the Board did not seem to consider the possibility that through alterations to his home, Wagner may have been able to keep his boat ramp and stay under the 3,005 square foot maximum.  In short, the Board must provide some reasonable justification for increasing the impervious surface over that in existence before enactment of the Critical Area Law.”

Through this point, the Court of Appeals seemed to be on track to further reduce impervious surface allowed on the Little Island to the same amount that was present before Mr. Wagner began rebuilding.  This is the result most close observers would have expected, and it is probably the result that most people would consider to be the fair result.  It is, however, the point at which things begin to get exciting — and not in a good way for the environmentally minded.

THE POTENTIAL ASSAULT VEHICLE EXCEPTION TO THE CRITICAL AREA ACT.

The global principle in the Critical Areas Law is that there should be the minimum amount of impervious surface (roofs, sheds, driveways, etc.,) in the critical area.  This restriction is the one that Mr. Wagner is seeking an exception from because the entire island is in the critical area.  The Act, however, grants a global exception to structures that are considered “water dependent” such as piers, bulkheads and stone erosion control.  Water dependent structures do not require a variance and are not considered to be impervious surface.

When Mr. Wagner was constructing the house, he built a driveway/boat ramp directly into the water so that he could bring construction materials to the island with a government surplus beach assault vehicle.  He built a similar ramp on a property in Pasadena so that he could drive from the mainland to the island.  The Board of Appeals 2008 decision allowed the boat ramp to remain, despite the fact that it added additional impervious footage.  This aspect of the decision seemed dubious at the time, but the concurring opinion from the Court of Appeals lays out the reasoning — if it is a “water dependent” stucture, then no variance is necessary.  Apparently, this reasoning was adopted by Anne Arundel County in 2006.

“[T]his Office reviewed a request to allow a 40’ long x 8’ wide driveway on the northern side of the island as a water dependent use for access to the island.  By letter dated October 31, 2006, the Planning and Zoning Officer, Joseph Rutter, indicated that vehicular access to an island cannot exist outside the Buffer and that the 40’ long driveway reflected on the site plan submitted with the letter of consideration dated October 26, 2006 is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated.”

This reasoning appears to have been adopted by the Board of Appeals.  The Court of Appeals did not go so far as to adopt this reasoning — instead remanding the question to the Board of Appeals.  Judge Watts, however wrote a concurring opinion to this decision in which he stated that he would hold that it was a water dependent facility for which no variance was required.

The driveway/boat ramp fulfills the criteria set forth in COMAR 27.01.03.03A(1)-(5), in that: (1) the development activities are water-dependent; (2) the project (i.e., the driveway/boat ramp) meets Wagner’s recognized private right to have vehicular access to his island home; (3) the adverse effects on water quality and fish, plant, and wildlife habitat are minimized, as recognized by the Majority, which holds that the Board’s findings that the requested variances would not have a negative impact on the environment are supported by substantial evidence….

This concurring opinion will certainly be studied closely by the Board of Appeals, and given what has occurred thus far, it is difficult to imagine that the reasoning will not be adopted.

The decision does beg the question: is there a “recognized private right” to have vehicular access to an island home?  The law is silent on that point.  Unless Mr. Wagner still has another boat ramp on his mainland property, how could he even make use of a driveway on his island?  If he has a driveway on his mainland property — how did that get approved?  Is there a recognized private right to have boat ramp on any property?  Can one improve ones’ access to the water with both boat ramp and a pier, as is present now?  If so, this would seem to be a major new exception to the critical areas protections.

Environmental Science Issues

For my science and engineering minded readers, I have left intact the discussion of the Adverse Environmental Effects, which led the citing of the testimony of the Developer’s paid expert Charles John Klein, III, who “testified that the development led to a net environmental enhancement on the Island.”  This position was largely adopted by planners in Anne Arundel County.  If Critical Area protection is going to work, we need legitimate scientific support and testimony for the point that shoreline in its natural state is environmentally superior to a lawn enclosed by rip rap.  This is another huge loophole for a well funded developer like Mr. Wagner.

____________________________________________

 

THE TEXT OF THE DECISION

 

(Eds. Note: I have redacted the procedural discussion as well as many of the footnotes for readability.  Significant redactions are denoted by “*  *  *”.)

 

Chesapeake Bay Foundation, Inc. and Magothy River Association, Inc. v. DCW Dutchship Island, LLC, et al., No. 77, September Term, 2013, Opinion by Adkins, J.

Roughly 35 million years ago, an asteroid over a mile wide crashed into the Earth at a speed of about 70,000 miles per hour.  Hillary Mayell, Chesapeake Bay Crater Offers Clues to Ancient Cataclysm, National Geographic News, (November 13, 2001), http://news.nationalgeographic.com/news/pf/57998027.html.  This collision created the Chesapeake Bay Crater.  Id.  One of the by-products of this celestial collision is the subject of this contest—Little Island in the Magothy River (“the Island”).

In 2000, DCW Dutchship Island, LLC (“DCW”), a corporation wholly owned by Daryl Wagner (“Wagner”), purchased the Island.  At that time, the Island measured approximately 1.92 acres in area and was improved by a single-family house and related structures built in the 1920s.1  Wagner demolished the house and set about building a new one.  The circumstances surrounding this construction are not new to us.  As we explained in McHale v. DCW Dutchship Island, LLC:

1 The Island contained the following impervious surface area: the original house, representing 1,911 square feet; concrete and wood steps, representing 45 square feet; a boat house and deck, representing 890 square feet; and two sheds, representing 159 square feet.  The Board rejected testimony that a driveway existed on the Island before Wagner’s development, and as a result, did not include that figure in its finding that the Island historically contained 3,005 square feet of impervious surface.

In or about 2001, Daryl Wagner, a member of DCW and a Maryland registered home builder, acting on behalf of DCW, demolished the old summer cottage and removed the debris, without the necessary permits or variances required by the Critical Area Law and County ordinances.  Then, Wagner constructed the following structures or impervious surface areas on the Island: (1) a new 2,883 square foot home; (2) replacement sheds for the two preexisting sheds; (3) a 66 square foot gazebo; (4) a boat ramp and concrete driveway with approximately 2,668 square feet of surface area to accommodate his amphibious vehicle; (5) 846 square feet of sidewalks; and (6) a pool and deck totaling 1,433 square feet.

    * * *

 In November 2004, the County authorities discovered the construction activities on the Island and notified DCW of the numerous violations.  On 28 December 2004, DCW sought variances from the unobserved requirements of the Critical Area Law for each of the structures and improvements on the Island.  DCW sought also an amendment to the critical area buffer map, which prohibits most development activity within 100 feet of the shoreline.

A County Administrative Hearing Officer heard the evidence for and against the requests for variances.  The Magothy River Association (“MRA”) appeared at the variance hearings on 5 June 2005 and 20 September 2005 to oppose DCW’s requests.  The Hearing Officer granted some of the variances on 27 October 2005.  Wagner appealed administratively the denials, and the MRA, the Chesapeake Bay Foundation (“CBF”), and the Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”) appealed the decision to grant the variances, all to the County Board of Appeals.

415 Md. 145, 151–52, 999 A.2d 969, 972–73 (2010) (footnote omitted).2  At the Anne Arundel County Board of Appeals (the “Board”) hearing, Wagner moved to dismiss MRA and CBF as parties to the administrative proceedings.  The Board ultimately concluded that CBF did not have standing to appeal the granted variances because it did not participate in the hearing before the Administrative Hearing Officer (“AHO”), as required by § 3-1-

 

2 Because this Court thoroughly addressed the underlying facts of this case in McHale v. DCW Dutchship Island, LLC, 415 Md. 145, 999 A.2d 969 (2010), we will keep our restatement of the relevant facts brief.  When necessary to assess the parties’ arguments, we will enrich our discussion of the facts.

 

* * *

 

THE MERITS OF THE BOARD’S DECISION

With the standing issues resolved, we now turn to the merits of the Board’s decision granting certain variances to Wagner.  Before doing so, we address the scope of our review and lay out the setting in which the Board’s decision lies.

STANDARD OF REVIEW

We recently described this Court’s role in the review of zoning board decisions in Critical Area Commission for the Chesapeake and Atlantic Coastal Bays v. Moreland, LLC:

Our role in reviewing the final decision of an administrative agency, such as the Board of Appeals, is “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.”  In doing so, a reviewing court decides whether the Board’s determination was supported by “such evidence as a reasonable mind might accept as adequate to support a conclusion.”  Moreover, a reviewing court “must review the agency’s decision in the light most favorable to it; . . . the agency’s decision is prima facie correct and presumed valid.”

418 Md. 111, 122–23, 12 A.3d 1223, 1230 (2011) (citations omitted) (ellipsis in original).

DISCUSSION

Background – Critical Area Law

Touching every aspect of this case is the Critical Area Law, and we start with the history and substance of that environmental protection statute.  The General Assembly enacted the Critical Area Law in 1984.  Md. Code (1973, 2012 Repl. Vol.), § 8-1801 of the Natural Resources Article (“NR”).  Based on findings concerning the importance, fragility, and documented decline in the state of the Chesapeake Bay and its tributaries, the General Assembly “establish[ed] a Resource Protection Program for the Chesapeake and the Atlantic Coastal Bays and their tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats[.]”  NR § 8-1801(a), (b)(1).

In describing the impetus for the Critical Area Law, the General Assembly highlighted the effect of recent development on the Chesapeake Bay area:

Human activity is harmful in these shoreline areas, where the new development of nonwater-dependent structures or an increase in lot coverage is presumed to be contrary to the purpose of this subtitle, because these activities may cause adverse impacts . . . to the Chesapeake and Atlantic Coastal Bays, and thus it is necessary wherever possible to maintain a buffer of at least 100 feet landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands[.]

NR § 8-1801(a)(4) (emphasis added).  NR § 8-1801(a)(4) previously phrased the presumption concerning lot coverage in terms of “impervious surface.”  Md. Code (1973, 2007 Repl. Vol.), § 8-1801(a)(4) of the Natural Resources Article (“Human activity is harmful . . . where the new development of . . . impervious surfaces is presumed to be contrary to the purpose of this subtitle[.]”) (emphasis added).  Thus, development that increases the amount of impervious surface in the critical area is a primary concern of the Critical Area Law.  Indeed, the Legislature found “a critical and substantial State interest . . . in fostering more sensitive development . . . along shoreline areas of the Chesapeake and the Atlantic Coastal Bays and their tributaries so as to minimize damage to water quality and natural habitats.”  NR § 8-1801(a)(10).

* * *

The lodestar for the Board’s consideration of a variance application is the statutory mandate that a variance can only be granted when “[d]ue to special features of a site, or special conditions or circumstances peculiar to the applicant’s land or structure, a literal enforcement of the [C]ritical [A]rea [P]rogram would result in unwarranted hardship to the applicant[.]”  NR § 8-1808(d)(5)(i);22 see also AACC § 3-1-207(b)(1) (requiring that in order to grant a variance, the Board find that “strict implementation of the County’s [C]ritical [A]rea [P]rogram would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant[.]”).  Unwarranted hardship “means that, without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.”  NR § 8-1808(d)(1).

We test the parties’ arguments against the terms of the Critical Area Law, and the County’s enactments that implemented that law.  CBF and MRA strenuously contend that the Board erred by granting Wagner “after-the-fact” variances.  The Board’s Order announced these variances, and the conditions attached to them, as follows:

 

For the reasons set forth in the foregoing Memorandum of Opinion, it is this 3rd day of Jan., 2007, by the County Board of Appeals of Anne Arundel County, ORDERED, that:

* * *

2)  A variance of 36 feet to the required 100 foot minimum buffer along the southeast shore of the island and a variance of 32 feet to the required 100 foot minimum buffer (Section 1A-104(a)(1)) along the southwest shore of the island for the construction of a residence, septic system and installation of a well is hereby GRANTED;

3)  A variance to permit the disturbance of slopes of 15% or greater as measured before development in the LDA (Section 1A-105(d)) for the installation of a septic system and related facilities is hereby GRANTED; and

4)  A variance to permit new development activities in the buffer for the construction of an 8 foot by 40 foot impervious boat ramp/driveway to the west of the pier is hereby GRANTED.

All VARIANCES being subject to the following conditions:

a) There shall be no more than 3,325 square feet of impervious surface on the lot, inclusive of the 8 by 40 foot boat ramp/driveway;

b)  The gazebo, pool, patio, sidewalks, accessory structures, and other impervious surface on site shall be removed, subject to lawfully issued permits, and the areas shall be revegetated;

c)  All disturbance in the buffer shall be revegetated at a 3 to 1 ratio, with plantings on the property of native species;

d)  The buffer on site should be planted to the extent possible, including the slopes adjoining the revetment;

e) A buffer management plan, execution of a forest conservation easement and all required mitigation will be required prior to the issuance of any permit;

f)  The shore management system (Petitioner’s Exhibit 63) for the northern and western shores of the lot must be implemented to provide appropriate sand nourishment and flora enhancement;

g)  As per the RLD regulations, a 50 foot planted buffer shall be located and maintained between the principal structure and the crest of slopes with a 25% grade or greater; and

h)  Stormwater from all impervious surfaces shall be directed to appropriate stormwater management devices for quality and quantity control.

According to Petitioners, the Board’s Order was premised on an erroneous finding that Wagner satisfied all of the requirements for a variance contained in AACC § 3-1-207.23  Specifically, CBF and MRA present seven arguments that Wagner failed to meet his burden of proof and persuasion to satisfy the variance criteria.  These arguments involve the following variance requirements, which are set forth in subsections of AACC § 3-1-207.24  These code provisions, which we have set out in the order we address them, dictate that:

(b)(4)(i) [the variance request] is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed;

(e)(1) the variance is the minimum variance necessary to afford relief;

(b)(2)(i) a literal interpretation of COMAR, Title 27, Criteria for Local Critical Area Program Development, or the County critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas[;]

(b)(3) the granting of a variance will not confer on an applicant any special privilege that would be denied by:

(i) COMAR, Title 27, or the County critical area program to other lands or structures within the County critical area;

(b)(5)(i) [the granting of the variance] will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area[;]

(b)(5)(ii) [the granting of the variance] will be in harmony with the general spirit and intent of the County critical area program[;] and

(b)(7) the applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, § 8-1808(d)(2), of the State Code.

We examine each of Petitioner’s arguments regarding these variance requirements in turn.

Unwarranted Hardship

Under AACC § 3-1-207(b)(1), variance applicants must show that due to conditions on the property, “strict implementation of the County’s [C]ritical [A]rea [P]rogram would result in an unwarranted hardship[.]”  CBF and MRA posit that the denial of a variance would not cause Wagner to suffer an unwarranted hardship.  They explain that the County’s grandfathering provisions would allow for Wagner to keep the Island’s structures as they had existed before the implementation of the Critical Area Program.  Thus, Petitioners argue, denying Wagner the ability to construct a “wonderland” is not an unwarranted hardship.  Petitioners charge that the Board failed to identify substantial evidence that limiting Wagner’s redevelopment to the pre-existing footprint would represent an unwarranted hardship.

DCW and Wagner disagree.  In their view, because the Island is a unique property, surrounded by water, almost entirely affected by the 100 foot buffer, and featuring the unusable footprint of the old house, a variance was necessary to build any house on the Island.

This Court closely examined the term “unwarranted hardship” in Belvoir Farms Homeowners Association, Inc. v. North, 355 Md. 259, 734 A.2d 227 (1999).  There, we observed that “[t]his Court has said that ‘[t]he criterion for determining unnecessary hardship is whether the applicable zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership.’”  Id. at 276, 734 A.2d at 237 (quoting Marino v. Mayor of Baltimore, 215 Md. 206, 217, 137 A.2d 198, 202 (1957)).  After surveying a number of national standards for unwarranted hardship, the Belvoir Court rejected the proposition that the unnecessary or unwarranted hardship standard was equal to the unconstitutional taking standard, and stated the following:

The unwarranted hardship standard, and its similar manifestations, are equivalent to the denial of reasonable and significant use of the property.  Whether a property owner has been denied reasonable and significant use of his property is a question of fact best addressed by the expertise of the Board of Appeals, not the courts.  Thus, we leave the application of this standard to petitioner’s variance application to the Board on remand.

355 Md. at 282, 734 A.2d at 240 (emphasis added).

Here, the Board found that the unwarranted hardship criterion was satisfied because “[n]o dwelling could be built without some variance.”  The Board explained that: “The lot is an island within the Magothy River and the application of the minimum 100 foot buffer leaves only a small triangle of land in the center of the island beyond the reach of the minimum required buffer.  However, since there are steep slopes on the island, the buffer must be expanded; therefore, no part of the island is left without restriction.”  With respect to the location of the dwelling, these findings were supported by substantial evidence.  As we discuss infra, however, the size of the dwelling’s footprint is another matter altogether.  Nor have we yet addressed Petitioners’ argument that the hardship is self-inflicted, an issue we take up next.

Self-Created Hardship

From Petitioners’ perspective, the actions of Wagner in building his house and other structures without permits overshadows all else.  They aver that Wagner’s request for variances arises from conditions that can only be characterized as self-created hardships that are not sufficient to justify a variance under the County Code.  They rely on AACC § 3-1-207(b)(4)(i), which states that the Board may only issue a variance upon a written finding that the variance request “is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed[.]”  CBF and MRA cast Wagner’s purported hardships as quintessential examples of self-created hardships, attributable to Wagner’s unlawful development activities, not the inherent conditions on the Island.

Petitioners challenge Wagner’s right to a variance to build a new house covering 2,883 square feet of impervious surface, when the pre-existing dwelling on the Island constituted only 1,911 square feet of impervious surface.  Positing that Wagner could have obtained a variance for the pre-existing square footage under the County’s grandfathering provision, Petitioners argue that it was only Wagner’s desire for a larger home that necessitated the variance.  As such, say Petitioners, it was a classic self-created hardship.

Petitioners also claim that the location of the requested variances was similarly based on Wagner’s unlawful excavation and grading activity.  In their view, Wagner’s decision “to proceed without variances and approved plans and excavating the bluff back to the corner of the cottage exacerbated the need for variances.”  As stated earlier, Petitioners’ civil engineering expert, Tom Heil, testified that Wagner had options apart from installing stone revetment and excavation of the bluff, and concluded that a new home could have been constructed on the pre-existing dwelling’s footprint.

CBF and MRA urge us to follow the reasoning of Cromwell v. Ward, 102 Md. App. 691, 722, 651 A.2d 424, 439–40 (1995), in which the Court of Special Appeals cautioned that “[w]ere we to hold that self-inflicted hardships in and of themselves justified variances, we would, effectively not only generate a plethora of such hardships but we would also emasculate zoning ordinances.  Zoning would become meaningless.”  In that case, the intermediate appellate court held that the Board improperly granted an after-the-fact variance sought by a landowner who had constructed a building that exceeded the zoning limit on height.  Cromwell, 102 Md. App. at 726, 651 A.2d at 441.  The court explained:

It is not the purpose of variance procedures to effect a legalization of a property owner’s intentional or unintentional violations of zoning requirements.  When administrative entities such as zoning authorities take it upon themselves to ignore the provisions of the statutes enacted by the legislative branch of government, they substitute their policies for those of the policymakers.

Id.  Petitioners ask us to reach the same conclusion regarding DCW’s after-the-fact variances.

Petitioners also draw our attention to Chesley v. City of Annapolis, 176 Md. App. 413, 933 A.2d 475 (2007).  In Chesley, the Court of Special Appeals was faced with a property owner who built a house and a pool that “eliminated the possibility of locating a garage where no variance would be required[,]” then requested a variance to build a garage.  Id. at 440, 933 A.2d at 491.  The intermediate appellate court affirmed the Board’s finding that Chesley’s claimed hardship in building a garage was self-created.  Id. at 441, 933 A.2d at 492.  The court emphasized that instead of seeking a garage variance before starting construction, or building a smaller house that would permit a detached garage on another section of the property, Chesley built the house and pool at the risk that the Board would not approve a variance for the garage.  Id. at 440–41, 933 A.2d at 491–92.

DCW and Wagner counter that their need for variances was not self-created, but was solely a result of the impact of the Critical Area regulations on the Island.  They maintain that because the entire Island was located in the 100-foot buffer, any structure on the Island—apart from a structure on the previous dwelling’s footprint—would require a variance.  Importantly, they say that the pre-existing footprint of the old house was unusable, and so a variance was absolutely required.

Fortunately, our case law has been both consistent and clear in declaring what “self-created hardship” encompasses.  This Court addressed the issue in Salisbury Board of Zoning Appeals v. Bounds, 240 Md. 547, 214 A.2d 810 (1965).  The Bounds Court first observed the general rule stated in Rathkopf’s seminal treatise, The Law of Zoning and Planning:

Ҥ 1. Hardship Caused by Affirmative Acts of Commission.

Where property, due to unique circumstances applicable to it, cannot reasonably be adopted to use in conformity with the restrictions of the zoning ordinance, hardship arises which is capable of being relieved through the grant of a variance.  The restrictions of the ordinance, taken in conjunction with the unique circumstances affecting the property must be the proximate cause of the hardship.  If the peculiar circumstances which render the property incapable of being used in accordance with the restrictions contained in the ordinance have been themselves caused or created by the property owner or his predecessor in title, the essential basis of a variance, i.e., that the hardship be caused solely through the manner of operation of the ordinance upon the particular property, is lacking.  In such case, a variance will not be granted; the hardship, arising as a result of the act of the owner or his predecessor will be regarded as having been self-created, barring relief.

This rule is simple and of general application in the several states.

There is a uniform application of the rule in those cases in which there has been an act on the part of the property owner or his predecessor which has physically so affected the property as to create a unique circumstance or which in itself created either a practical difficulty or hardship in conforming to the restrictions of the ordinance.”

240 Md. at 554–55, 214 A.2d at 814 (quoting 2 Rathkopf, The Law of Zoning and Planning, 48-1) (italics in original).  The Bounds Court affirmed the Board’s finding of a self-created hardship where the property owners created four apartments in a three-apartment dwelling, then requested a variance.  240 Md. at 555, 214 A.2d at 814.  It was clear to the Court that “the resultant hardship could have been avoided if the [property owners] had used proper diligence in ascertaining what the density requirements were for a four apartment dwelling[.]”  Id.

In Ad + Soil, Inc. v. County Commissioners of Queen Anne’s County, 307 Md. 307, 312, 513 A.2d 893, 895 (1986), property owners operated a sewage disposal business without applying for zoning approval from county authorities.  Although the property owners had enough land to comply with setback requirements under the zoning ordinance, the owners failed to comply with any of the setback requirements, and thus asked to obtain variances from these requirements.  Id. at 339–40, 513 A.2d at 909–10.  We affirmed the Board’s conclusion that, under these circumstances, “Ad + Soil’s ‘hardship’ was self-inflicted[.]”  Id. at 340, 513 A.2d at 910.

As these cases make clear, the critical issue in determining whether a hardship is self-created is whether the property owner could have avoided the need for a variance.  In other words, if a property owner has a hand in creating the “peculiar circumstances” that cause his need for a variance, the owners’ hardship is self-created.  But when the “peculiar circumstances” arise from the zoning restrictions themselves, the owners’ hardship is not self-created.  We evaluate the Board’s conclusion regarding the self-created hardship criterion with this standard in mind.

After considering the evidence in the record, the Board concluded the following:

[T]he action of the regulations on this island have eliminated the property owner’s ability to develop anything without a variance.  The island is small, surrounded on all sides with the waters of a Chesapeake Bay tributary, and contains steep slopes.  The required minimum and expanded buffer make it impossible to develop without the variances.  We specifically reject the assertion of the [Petitioners] that the previously existing house site could have been redeveloped with a residence.  The proximity of the foundation to the cliff face (and now the steep slopes behind the revetment area), the soil type and the action of the waves on this reduced island render the previous house site unbuildable.

*  *  *

We hold that these findings are supported by substantial evidence in the record.

 

*  *  *

 

We reject Petitioners’ arguments that the Board’s granting of any variances was precluded by Wagner’s “several illegal acts,” his request for “after-the-fact” variances, or the doctrine of unclean hands.  In evaluating Wagner’s variance request against the self-created hardship criterion, Wagner’s failure to obtain the proper permits or variances before construction is not relevant.  This fact would only be relevant if Wagner’s acts constituted the “peculiar circumstances” that created the need for the variances.  See supra; see also Stansbury v. Jones, 372 Md. 172, 198, 812 A.2d 312, 327 (2002) (“Traditionally, self-created hardship requires an affirmative action, exclusively by a property owner or his predecessor in title, that is itself the sole reason for the need for the variance.”).

The Board, while noting the “presumptuous bravado” of Wagner’s acts, properly cabined its evaluation of the variance criteria to the legally relevant facts.28  In doing so, the Board restrained itself and followed its interpretation of the law.29  The Board’s interpretation of AACC § 3-1-207—its guiding statute for the granting of variance—is entitled to deference.  See Grasslands Plantation, Inc. v. Frizz-King Enters., LLC, 410 Md. 191, 204, 978 A.2d 622, 629 (2009) (“[A]n administrative agency’s interpretation and

 

28 In its Memorandum of Opinion, the Board voiced its disapproval of Wagner’s activities, making the following observations: “[t]he applicant deserves no sympathy[;]” “Wagner openly and knowingly violated the laws of the County and State[;]” and “[t]he scene of this bald-faced machismo is not lost on these Board members.”

29 It also observed that, “for all the moral outrage that should and has resulted from the erection of this structure and its related facilities, we must caution that decisions regarding punishment are not within the purview of this Board of Appeals.”  The Board stated that its “careful review of these laws has revealed no mechanism by which the Board can punish bad acts and actors.  We will not exercise authority that we do not possess and will not legislate from the ‘bench’ of the Board of Appeals.”

 

application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.”).  Thus, we find no error in the Board’s conclusion that under AACC § 3-1-207(b)(4)(i), so called “after-the-fact” variances are subject to the same evaluation as “before-the-fact” variances—no more, and no less. * * * 31

31 Our holding, of course, has no impact on the County’s right to pursue fines or other recourse because of Wagner’s construction activities.

 

Our conclusion that Wagner’s unwarranted hardship is not fully self-created is subject to other mandatory variance criteria, which we discuss in the sections that follow.

Minimum Variance Necessary

Petitioners’ best argument is that the variance sought is not the minimum necessary to afford Wagner relief.  AACC § 3-1-207(e)(1) dictates that in order to grant a variance in the Critical Area, it must be shown that “the variance is the minimum variance necessary to afford relief.”  Petitioners maintain that the Board did not explain why a house covering an impervious surface markedly larger than the original residence was the minimum necessary to afford Wagner relief, as Wagner did not produce evidence as to why he needed a house of this size.  They accuse the Board of contradicting itself when it ruled that the minimum variance necessary must not exceed the Island’s pre-existing impervious surface area, but then granted Wagner a variance for total structures, including the boat ramp, having impervious surface area significantly greater than that figure.

DCW and Wagner counter that the minimum variance necessary to afford relief is a subjective finding based on the facts presented, and is for the Board to determine, not the reviewing court.  They highlight that this point was even agreed to by the Executive Director of the Critical Area Commission, who testified that “[i]f the Board believes that the reasonable redevelopment in a reasonably sized dwelling must be larger than the old house[,] it’s the Board’s discretion to make that determination.”  DCW and Wagner urge us to adopt the reasoning of the Court of Special Appeals in Becker v. Anne Arundel County, 174 Md. App. 114, 143, 920 A.2d 1118, 1135 (2007), which held that “minimum variance necessary” does not mean the absolute minimum variance possible.

As discussed earlier, Wagner bears the burden of proof on all variance criteria, and must prove that without a variance, the zoning will pose an unwarranted hardship.  Thus, with respect to the minimum variance criterion, the Board must find that the variance applicant has proven that the requested variance is the minimum necessary to afford relief such that the applicant will maintain a reasonable and significant use of the property.

This Court has not addressed the substance of the minimum necessary criterion with great particularity, but it was discussed by the Court of Special Appeals in Becker. 174 Md. App. 114, 920 A.2d 1118.  There, the intermediate appellate court was asked to evaluate the Board’s conclusion that variance applicants had not met their burden of proving that their request was the minimum necessary to afford relief.  Id. at 143, 920 A.2d at 1135.  Concluding that the Board had not adequately supported its finding that the applicants had not met their burden, the Becker Court explained:

The question of whether the variances were the minimum necessary must be considered, however, in the context of the purpose of the proposed construction, recognizing that appellants are entitled to build some type of reasonable structure.  There was no finding by the Board as to appellants’ reasonable needs, or reference to evidence, and why the proposed structure was not the minimum necessary to meet those needs.  On remand, the Board must provide an explanation.

Id. at 144, 920 A.2d at 1136 (footnote omitted).

*  *  *

We have not hesitated to be strict in requiring concrete, detailed fact findings.  In Bucktail, we reversed the Talbot County Council’s denial of a growth allocation, holding that “[f]indings of fact must be meaningful and cannot simply repeat statutory criteria, broad conclusory statements, or boilerplate resolutions.”  352 Md. at 553, 723 A.2d at 451 (citing Turner v. Hammond, 270 Md. 41, 55–56, 310 A.2d 543, 551 (1973)).  In Annapolis Market Place, we affirmed the reversal of the Board’s rezoning, agreeing that the applicant had failed to present “one scintilla of evidence that indicate[d] that schools [we]re adequate to serve the development of th[e] [P]roperty” with apartments, as the applicant had proposed.  369 Md. at 722, 802 A.2d at 1049.   *  *  *  When addressing the issue of reasonable and significant use, a substantial amount of deference to the Board’s findings is required.  See White v. North, 356 Md. 31, 50, 736 A.2d 1072, 1082–83 (1999) (“As long as evidence exists before the agency that would make its factual determination as to reasonableness and significance fairly debatable, its determination ordinarily should be upheld.”). With these cases in mind, we examine the Board’s conclusion that the granted variances represent the minimum relief necessary to afford relief.  The Board stated:

We find that the variances granted by this opinion are the minimum necessary to afford relief here because the resulting impervious surface on site will measure no more than 3,325 square feet, that is the 3,005 square feet of historically existing square footage (which could be used by right) plus a reasonably sized (8 x 40 foot) boat ramp/driveway from the water’s edge at the pier.

 

The Board implicitly concluded that the impervious surface covered by the new house could legitimately be increased beyond the footprint of the old house by demolishing pre-existing outbuildings with impervious surfaces totaling 1,094 square feet, and “transferring” or allotting part of that footage to the new house.  We do not argue with this point, and consider it a reasonable factual inference based on the evidence.  In this regard, it is meaningful that the Board did require the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.

Had the Board stopped there, we would be affirming on this point.  Yet the Board, quite inexplicably, also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.34  Similarly, the Board did not seem to consider the possibility that through alterations to his home, Wagner may have been able to keep his boat ramp and stay under the 3,005 square foot maximum.  In short, the Board must provide some reasonable justification for increasing the impervious surface over that in existence before enactment of the Critical Area Law.

One possibility is that the Board agreed with the Anne Arundel County Office of Planning and Zoning that the boat ramp constituted a “water-dependent facility”35 that did not require a variance.36  If that is the case, the Board should not have granted a variance for the boat ramp.37  Alternatively, the Board may interpret the County Critical Area Program to mean that notwithstanding designation of the boat ramp as a water-dependent facility, the variance requirements still apply, and so the impervious surface of the boat ramp must still be counted as part of the whole.  We defer to the Board for interpretation of the County’s Critical Area law.  Yet, as it stands, we cannot affirm the Board’s Order because doing so would lend our imprimatur to a variance that was either unnecessary, or not properly evaluated by the Board.

______________________

Footnotes:

34 The Board only provided the following justification for granting the boat ramp variance:

[T]he new proposed impervious surface must not exceed that which was previously on the island plus a small area to accommodate the movement of boats or other similar vehicles from the water to avoid damage to the shore.

* * *

The Petitioner should be required to install and maintain a boat ramp to prevent erosion at the water’s edge from continual scour by the access vehicle of choice.

(Emphasis added.)  For the reasons stated above, we hold that this concern does not adequately explain or justify the Board’s grant of the boat ramp variance to Wagner.

 

35 “‘Water-dependent facilities’ means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the Buffer specified in COMAR 27.01.09.”  COMAR 27.01.03.01A.  COMAR 27.01.03.01B provides that:

An activity is water-dependent if it cannot exist outside the Buffer and is dependent on the water by reason of the intrinsic nature of its operation.  These activities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas and other boat docking structures, public beaches and other public water-oriented recreation areas, and fisheries activities.

36 Suzanne Schappert, Planning Administrator of the Anne Arundel County Office of Planning and Zoning, responded to Wagner’s request for variances with a “Findings and Recommendation” report.  In that report, Schappert states that the office reviewed Wagner’s boat ramp request and “determined [it] to be water dependent and acceptable[.]”  In later testimony before the Board, Schappert suggested that because the boat ramp had been determined to be a water-dependent facility, it did not require a variance.

37 Under the Board’s current order, one remote but not entirely implausible scenario is that Wagner would either expand his current boat ramp or build another boat ramp, claiming that one was permissible as a water-dependent facility, and the other was permissible by the Board’s granted variance.  Given Wagner’s previous behavior, we are wise to guard against this possibility by requiring that the Board clarify its order.

_________________________________________________

Deprivation Of Rights Enjoyed By Others/Special Privilege

* * *

We have already said, in our “minimum variance necessary” discussion, that the Board of Appeals erred in its approval of more than 3,005 square feet of impervious surface without justification.  In light of our ruling we decline to address further Petitioner’s arguments about “special privilege.”

 

Adverse Environmental Effects

 

Petitioners’ fifth argument is that the Board erroneously concluded that under AACC § 3-1-207(b)(5)(i), granting Wagner’s variances would not harm water quality or the wildlife and plant habitat.  They claim that it was unreasonable for the Board to base its decision on the belief that Wagner’s stormwater management plan would be sufficient to protect water quality and habitat.  CBF and MRA argue that the Board did not consider the adverse environmental impact caused by the construction of the new dwelling itself.  Given that this construction involved excavating and grading the Island’s shoreline, it is obvious to Petitioners that Wagner’s activities had an adverse impact on water quality.  Petitioners aver that because it was Wagner’s burden to prove that his development would not harm water quality, and Wagner offered no credible evidence on this point, the Board’s decision that there would be no such harm is not supported by the evidence.

DCW and Wagner rejoin that there was no evidence introduced that the work encompassed by the requested variances had any negative impact on the environment.  They claim that the putative negative environmental effects were not conclusively established by CBF or MRA’s experts.  In contrast, they argue that there is ample evidence that the Island has been stabilized and is no longer eroding or depositing soil into the river, resulting in improved water quality.

In its Order, the Board stated that no storm water would be permitted to run off into the Magothy, and required that all storm water be directed to a management control system.  Moreover, the Board required that Wagner’s proposed shore management system for the north and western shores be implemented.  The Board agreed with DCW’s expert, Charles John Klein, III, that the revetment had acted to stop erosion, which had led to a decrease in turbidity in the waters surrounding the Island.  The Board further held that the reforestation at a three-to-one ratio will create a better situation on the Island than existed previously, reducing the turbidity and increasing light and plant life in the river, which will ultimately become “more conducive to the maintenance of higher life forms.”

We hold that the Board’s findings were supported by substantial evidence.  In addition to the testimony cited above, Charles John Klein, III, testified that the development led to a net environmental enhancement on the Island.  Area residents, including neighbor Thelma Hall, gave anecdotal testimony supporting the increased clarity of the water, which was further corroborated by aerial photography.  Even Petitioners’ expert, Tom Heil, testified that the revetment had mitigated erosion and helped to stabilize the Island.  MRA President, Francis Spadaro, testified that oyster beds were covered in sedimentation, but could not identify the source of sedimentation.  Another of Petitioners’ experts, Justin Reel, testified about the state of submerged aquatic vegetation during three different time periods, but was unable to draw conclusions.  In light of this scant contravening evidence, we uphold the Board’s findings as supported by substantial evidence.  This conclusion does not, however, modify our holding about the “minimum variance necessary” criterion, discussed previously.

The Purpose And Intent Of The Critical Area Program

* * * The Critical Area Program permits residential uses on property impacted by the regulations.  The residential use here will not exceed the amount of impervious surface on the island prior to development, the stormwater will be better controlled, the vegetation will be increased and enhanced with native species, a conservation easement will be in place, and sand nourishment and shore management protection will be installed.  We feel that the resulting island will be a showplace for environmental enhancement, not a scourge.

As explained supra, the Board erred in its conclusion that the residential use here will not exceed the amount of impervious surface on the island prior to redevelopment. Excepting that, in light of the evidence regarding the lack of adverse environmental effects resulting from Wagner’s development, we hold that the Board’s findings on this criterion are supported by substantial evidence.

The Presumption

Petitioners’ final argument concerns the legal presumption under AACC § 3-1-207(b)(7) and NR § 8-1808(d)(3)(ii) that building activity requiring variances is inimical to the Critical Area Program.  They claim that the Board’s conclusion that Wagner could not construct a dwelling without a variance was contradicted by the fact that a pre-existing dwelling stood on the Island for over 50 years.  In Petitioners’ view, Wagner never explained how allowing larger structures in the buffer helped foster the goals and intent of the Critical Area Program; therefore, the Board was “duty bound” to deny the variances.

DCW and Wagner frame things differently.  In their view, the presumption that Petitioners speak of only restates the law as it applies to variances in the Critical Area.  Any applicant must prove that they meet the criteria set forth in the Critical Area laws.  If one does not meet that criteria, then the variance is denied.  In their view, the Board recognized the presumption, weighed this presumption in evaluating the variance criteria, and properly determined that the presumption was overcome by the evidence.

In its Memorandum of Opinion, the Board addressed the legal presumption:

To reiterate, it is the burden of an applicant to prove that they met each and every one of the variance criteria.  The failure to meet just one of those criteria requires that this Board deny the requested variances.  For those variances requested that have been denied, the Petitioner did not meet the requirements.

For the other requested variances, the Board found that the Petitioner met its burden, and thus granted modified variances, subject to conditions.  As we have held above, the Board must re-evaluate the “minimum amount necessary” criterion.  Based on this determination, the Board will decide whether Wagner has overcome the presumption that his activities are inimical to the intent of the Critical Area Program.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND VACATED IN PART.  CASE REMANDED TO THE BOARD OF APPEALS OF ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.

Judge Harrell joins in the judgment only.

Concurring Opinion by Watts, J.

 

Respectfully, I concur.1  I would hold, however, that the Board of Appeals (“the Board”) did not err in granting Wagner after-the-fact variances and in determining that the variances granted were the minimum variances necessary.  I would hold that the grant of a variance for a 320-square-foot driveway/boat ramp was unnecessary, as the driveway/boat ramp is a water-dependent facility for which a variance is not required under the Critical Area Law.  Despite this view, I believe it reasonable to allow the Board an opportunity to explain its opinion and explicitly address whether the County’s Critical Area Program requires a variance for a water-dependent facility, and thus, I concur with the Majority’s decision to remand the case to the Board.

*  *  *

I believe that the driveway/boat ramp is a water-dependent facility that can exist in the Critical Area independent from a variance; that this is what Board of Appeals determined in its opinion; and, further, that this is the legally correct conclusion; i.e., a water-dependent facility can exist in the Critical Area independent from a variance.  My reasons are as follows.  In a letter dated October 31, 2006, Joseph Rutter, a Planning and Zoning Officer with the Anne Arundel County Office of Planning and Zoning, advised Danny G. Boyd, Wagner’s site plan designer, that the request to consider the 40-foot by 8-foot driveway/boat ramp to be a water-dependent facility pursuant to Code of Maryland Regulations (“COMAR”) 27.01.03.01A and B was acceptable.  Rutter stated:

 

Athough vehicular access to an island home site is not specifically identified in the definition, vehicular access to an island cannot exist outside the buffer.  Therefore, the driveway as reflected on the site plan . . . is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated as the site plan reflects.

(Emphasis added).

On November 13, 2006, Rutter and Suzanne Schappert, the Planning Administrator of the Anne Arundel County Office of Planning and Zoning, submitted a “Findings and Recommendation” to the Board concerning Wagner’s request for variances.  In the Findings and Recommendation, Schappert and Rutter included Rutter’s determination that the 320-square-foot driveway/boat ramp is a water-dependent facility, and stated:

[T]his Office reviewed a request to allow a 40’ long x 8’ wide driveway on the northern side of the island as a water dependent use for access to the island.  By letter dated October 31, 2006, the Planning and Zoning Officer, Joseph Rutter, indicated that vehicular access to an island cannot exist outside the Buffer and that the 40’ long driveway reflected on the site plan submitted with the letter of consideration dated October 26, 2006 is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated.

(Emphasis added).

In its Memorandum of Opinion, the Board ratified the view that the driveway/boat ramp is a water-dependent facility by granting variances that included 3,005 square feet of impervious surface “plus” the driveway/boat ramp.  Specifically, the Board stated that it granted the requested variances because the Board determined that the variances are the minimum necessary to afford relief here because the resulting impervious surface on site will measure no more than 3,325 square feet, that is the 3,005 square feet of historically existing square footage (which could be used by right) plus a reasonably sized (8 x 40 foot) boat ramp/driveway from the water’s edge at the pier. (Emphasis added).  The Board determined that the driveway/boat ramp was necessary to “a[c]commodate the movement of boats or other similar vehicles from the water to avoid damage to the shore[.]”  (Footnote omitted).  Nonetheless, after having determined the driveway/boat ramp to be a water-dependent facility in its opinion, the Board included the driveway/boat ramp as part of the variances in its order.

The Board’s inclusion of a variance for the driveway/boat ramp in its order was, from my perspective, unnecessary.  A review of the case law, statutes, and regulations demonstrates that a water-dependent facility can exist in the Critical Area independent of a variance.  COMAR 27.01.03.01, concerning criteria for local Critical Area program development and water-dependent facilities, provides the following definition for “water-dependent facilities”:

 

A. “Water-dependent facilities” means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the Buffer specified in COMAR 27.01.09.

B. An activity is water-dependent if it cannot exist outside the Buffer and is dependent on the water by reason of the intrinsic nature of its operation.  These activities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas and other boat docking structures, public beaches and other public water-oriented recreation areas, and fisheries activities.

C. Excluded from this regulation are individual private piers installed or maintained by riparian landowners, and which are not part of the subdivision which provides community piers (see Regulation .07 of this chapter).

 

In turn, COMAR 27.01.03.03 provides:

In developing their Critical Area programs, local jurisdictions shall follow these criteria when addressing water-dependent facilities:

A. Except as otherwise provided in this chapter, new or expanded development activities may be permitted in the Buffer in intensely developed and limited development areas provided that it can be shown:

(1) That they are water-dependent;

(2) That the project meets a recognized private right or public need;

(3) That adverse effects on water quality and fish, plant, and wildlife habitat are minimized;

(4) That, insofar as possible, nonwater-dependent structures or operations associated with water-dependent projects or activities are located outside the Buffer; and

(5) That the facilities are consistent with an approved local plan as set forth below.

B. Except as otherwise provided in this regulation, new or expanded development activities may not be permitted in those portions of the Buffer which occur in resource conservation areas.

Anne Arundel County Code § 17-8-301(b) states: “Development on properties containing buffers shall meet the requirements of COMAR, Title 27.”

 

In Citrano v. North, 123 Md. App. 234, 236, 717 A.2d 960, 961 (1998), the Court of Special Appeals considered an argument from Mr. and Mrs. Frank Citrano, appellants, that a variance was not required for a deck because the deck was a water-dependent facility.  Appellants purchased residential waterfront property in Anne Arundel County within the Chesapeake Bay Critical Area and, without obtaining a building permit, constructed a fifteen-by-twenty foot deck on the property, approximately twelve feet from the shoreline.  Id. at 236-37, 717 A.2d at 961.  After the fact, appellants “applied for the necessary variances to permit the deck within the 100 foot critical area, on steep

slopes in a critical area, and in the front yard 38 feet closer to the front line lot line.”  Id. at 237, 717 A.2d at 961 (footnotes omitted).  The Board denied the requested variances.  Id. at 238, 717 A.2d at 961.  In the intermediate appellate court, appellants contended that no variances were required because the deck was a water-dependent facility permitted in the buffer.  Id. at 242, 717 A.2d at 964.  Specifically, appellants argued that the deck was a water-dependent facility pursuant to the Anne Arundel County Code because it was to be used for recreational purposes and needed to be close to the shoreline.2  Citrano, 123 Md. App. at 242-43, 717 A.2d at 964.  The Court of Special Appeals disagreed that the deck was a water-dependent facility, and instead agreed with the trial court that “‘it is clear that a deck is not a water[-]dependent facility under the term’s definition.’”  Id. at 243, 717 A.2d at 964.  Significantly, the Court of Special Appeals did not indicate that a variance was required for a water-dependent facility.  No Maryland case contradicts Citrano’s logic.

An examination of the regulations, statute, and Citrano leads to the conclusion that new development is permitted in the buffer in the critical area, absent the need to obtain a variance, if the structure is a water-dependent facility, as that term is defined in COMAR 27.01.03.01, and so long as the general criteria in COMAR 27.01.03.03 are satisfied.  In other words, a variance is not required for a water-dependent facility.  This construction of the Critical Area Law comports with that advanced by Anne Arundel County.3  In its brief, Anne Arundel County discusses a pier and bulkhead constructed by Wagner and states: “Neither the pier nor the bulkhead is subject to the variance process since both are ‘water-dependent structures’ as defined under State and County critical area law.”  (Citing Anne Arundel County Code § 14-8-301; COMAR 27.01.03.1A).  The conclusion that a variance is not required for a water-dependent facility is bolstered by the circumstance that, similar to COMAR 27.01.03.03, Md. Code Ann., Nat. Res. (1973, 2012 Repl. Vol) (“NR”) § 8-1808.5, concerning community piers and noncommercial boat docking or storage facilities, states that a water-dependent facility must satisfy certain criteria, see NR § 8-1808.5(c), and that “[a] local jurisdiction may grant a variance from the provisions of th[e] section in accordance with regulations adopted by the Commission concerning variances as part of local program development set forth in COMAR 27.01.11 and notification of project applications set forth in COMAR 27.03.01.”  NR § 8-1808.5(e).  Stated otherwise, NR § 8-1808.5 generally permits, absent a variance, community piers or other noncommercial boat docking or storage facilities subject to certain criteria, but if certain criteria cannot be met, an individual is permitted to request and potentially receive a variance from the provisions contained in NR § 8-1808.5.

 

Footnote 3  At the hearing before the Board, the Chairman asked Schappert (the Planning Administrator for the Anne Arundel County Office of Planning and Zoning): “If indeed the Board were to disagree with Mr. Ru[tt]er with regards to whether or not a driveway is a water-dependent facility, would that need a variance?”  In response, Schappert testified: “It’s disturbance in the buffer.  Yes, and it’s part of the associated facilities that, you know, were referred to in the heading of the variance request.”  In other words, Schappert testified that, if the Board disagreed that the driveway/boat ramp was a water-dependent facility, then a variance would be required.  It follows that, if the Board agreed the driveway/boat ramp was a water-dependent facility, a variance would not be required.  And, the Chairman posed the question in a manner that raises an inference that the Board supports this position too.

 

Here, despite Citrano, 123 Md. App. 234, 717 A.2d 960, NR § 8-1808.5, regulations, and content of Anne Arundel County’s brief, the Majority remands because the Board either did not adequately determine that the 320-square-foot driveway/boat ramp, previously found to be a water-dependent facility, qualified for a variance, or, as stated in my opinion, granted a variance that was unnecessary.  Specifically, the Majority states that the Board “inexplicably[] also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.”  Majority Slip Op. at 45-46 (footnote omitted).  The Majority remands the matter to the Board for clarification of its opinion and a determination as to the significance of a finding that the driveway/boat ramp is a water-dependent facility.  Majority Slip Op. at 46-47.

As explained above, however, it is clear that a water-dependent facility can exist independent of any variance; i.e., a variance is not required for a water-dependent facility in the Critical Area.  I would conclude that the driveway/boat ramp is a water-dependent facility, as found by the Anne Arundel County Office of Planning and Zoning and confirmed by the Board.  A driveway/boat ramp is a structure associated with recreational water-dependent activities, such as vehicular access to an island home and boat docking, which require location at or near the shoreline within the buffer and that cannot exist outside the buffer.  See COMAR 27.01.03.01A and B.  The driveway/boat ramp fulfills the criteria set forth in COMAR 27.01.03.03A(1)-(5), in that: (1) the development activities are water-dependent; (2) the project (i.e., the driveway/boat ramp) meets Wagner’s recognized private right to have vehicular access to his island home; (3) the adverse effects on water quality and fish, plant, and wildlife habitat are minimized, as recognized by the Majority, which holds that the Board’s findings that the requested variances would not have a negative impact on the environment are supported by substantial evidence, see Majority Slip Op. at 50-51; (4) the record does not contradict that, insofar as possible, nonwater-dependent structures and operations associated with water-dependent projects or activities are located outside the buffer; and (5) the driveway/boat ramp is consistent with the approved local plan articulated by the Anne Arundel County Office of Planning and Zoning and the Board, i.e., that the driveway/boat ramp is an acceptable water-dependent facility provided that the remainder of the driveway/boat ramp shown on the site plan is removed and re-vegetated as the site plan reflects.

In sum, in my view, the record demonstrates that the Board granted variances totaling no more than 3,005 square feet of impervious space “plus” the previously determined 320-square-foot water-dependent driveway/boat ramp.  As the Majority recognizes, the grant of variances totaling 3,005 square feet of impervious surface was reasonable, given “historically existing impervious surface area[.]”  See Majority Slip Op. at 45.  In other words, the 3,005 square feet was the minimum variance necessary, and the Board did not err in so finding.  Because I believe it appropriate to allow the Board an opportunity to speak for itself and clarify any potential doubt as to whether it determined the driveway/boat ramp to be a water-dependent facility, and as such, exempt from the need for a variance, I concur with the Majority’s decision to remand.

 

Legal Issues with Erosion Control and Marine Contracting

The two pictures below are erosion control projects installed in the same community but by two different contractors under two different contracts.  The differences are obvious: the first picture has stone that is tightly fitted and nicely sloped.  The second picture on is not fitted and not evenly sloped.  Walking on loose stone is dangerous, and undercutting by the waves will rapidly make it more so.

181

158

Here at Baylaw, I have had multiple cases where the primary issue was the quality and effectiveness of rip rap and erosion control measures.  The most frequent area of dispute is that the landowner anticipated a structure that was fitted and safe to walk on and the contractor delivered something that was more akin to a pile of rocks.  Such a dispute becomes a contest over the terms of the contract — which is often silent on the issue.  Without a term, expert testimony is needed to state that job was not done to a workmanlike standard, and this can be a much more difficult fact to prove.  A clear contract term at the outset is much preferable.

When the time comes to construct erosion control measures, this means that property owners need to identify a person that can design the structure to meet the terms of the code and a contractor that can do a safe, effective and attractive installation.  Sometimes the contractor may also design the project, sometimes it is better to work with a person that focuses on permits.  In either case, it is strongly recommended that the permit designer and the contractor work together on the plans to assure that the specifications are clear and can be executed in a cost-effective manner.  A land owner should also require a commitment as to what the project will look like at completion.  Unless a landowner specifies tightly packed stone (such as is typically found in government projects), there is the chance the contractor will simply dump the stone in a loose pile and leave it at that.

In the event of a dispute, one of the things to keep in mind is that marine contractors in Maryland are now required to be licensed by Maryland for any “ means construction, demolition, installation, alteration, repair, or salvage activities located in, on, over, or under State or private tidal wetlands.” Md. Code Ann., Envir. § 17-101.  Such services include dredging and filling, construction of boat houses, boat lifts, piers, etc., and installation and repair of erosion control measures.  There is a line of cases in Maryland indicating that a contractor that is not properly licensed cannot require payment in Court, so both landowners and contractors should pay close attention to the licensing requirements.

If the contract is not clear about the quality of the completed work, careful review of all discussions should be made to consider whether any photographs or other visual indications were discussed that would indicate the final product.  If a contractor shows a homeowner beautifully constructed, individually laid stone when giving the estimate and obtaining the business, then the landowner has the right to expect the sort of quality that was indicated (unless, of course, there was also discussions of other projects and the various costs that one might anticipate for the lower quality work).

The ability of a landowner to constuct erosion control measures is of increasing importance due to the rise of the waters in the Chesapeake region.  On December 9, 2013, The United States Coast Guard released a statement that the waters were rising along the Chesapeake at a rate of between 3.2 – 4.7 millimeters per year (the equivalent of the thickness of 3 to 5 pennies per year).  These changes were partly due to sea-level rise associated with climate change, partly due to the land subsiding. The subsidence is accelerated by human uses of groundwater.  (Here is the USCG report).  Most of the Chesapeake region consists of soft soils, and rising waters immediately attack and erode the shoreline.  Historical shoreline comparisons (like this one of the Annapolis area) give a sense of how much change has occurred in a few generations.

These natural forces work against the interests of owners of waterfront property, who would like to preserve and protect the land they have bought and paid for — and this leads inevitably to issues with the law.  There are significant issues with environmental protection and the critical areas protections — that is not the primary focus of this article, however.

Under the environmental rules, waterfront landowners to make improvements to allow for improved access (typically piers) and to prevent erosion.  “The person may make improvements into the water in front of the land to …  protect the shore of that person against erosion.”  Md. Code Ann., Envir. § 16-201.  The 2008 amendments to the Wetlands Act, however, restricted a landowner to “nonstructural shoreline stabilization measures that preserve the natural environment, such as marsh creation” except in areas specifically designated for structural shoreline or where the owner demonstrates that non-structural stabilization will not work.

 The bottom line — careful planning is crucial to avoiding issues.  If issues arise, however, capture the evidence; write down the events and if resolution cannot be reached, contact a lawyer that is knowledgeable in the particular issues.

J. Dirk Schwenk is a Maryland Real Estate, Waterfront Property, Civil Litigation and Maritime Lawyer from Annapolis, Maryland.  He provides civil litigation services in contract disputes, environmental and zoning issues, adverse possession and boundary disputes.  He graduated cum laude (with honors) from the University of Maryland School of Law and has been in private practice in Maryland ever since.

Setbacks, Critical Area Buffers and Variances

Setbacks, Buffers and Variances

Setbacks, buffers and variances are some of the more confusing concepts in real estate law.  Both setbacks and buffers establish a distance from something (like a boundary line or a stream) and both setbacks and buffers limit development in the area.  In Maryland, setbacks and buffers are generally established by County or City ordinance.

In this simple diagram, the property owner cannot build next to the side lot lines because of setback restrictions, and cannot build near the water due to the required buffer zone.  The developable area, therefore, is that part of the lot that can be used without violating a setback or a buffer.

These restrictions would be fairly straightforward, except that a property owner can apply for a variance from the restrictions, which would allow him or her to build into the buffers and setbacks.  The word “variance” in this context basically means “waiver” – the property owner asks that zoning board waive the setback or buffer restrictions.

Under the Anne Arundel County Code, principal structures (houses) in residential areas must meet setbacks of 5 feet from the front lot line, 10 feet from the rear lot line and 7 feet from the side lot lines.  A setback can be granted under the following provision:

Anne Arundel County Code (2005) art.18 sec.16-305

Variances.

  (a)     Requirements for zoning variances. The Administrative Hearing Officer may vary or modify the provisions of this article when it is alleged that practical difficulties or unnecessary hardships prevent conformance with the strict letter of this article, provided the spirit of law is observed, public safety secured, and substantial justice done. A variance may be granted only if the Administrative Hearing Officer makes the following affirmative findings:

         (1)     Because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility of developing the lot in strict conformance with this article; or

         (2)     Because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship and to enable the applicant to develop the lot.

 Assuming that there is something unusual about the lot dimensions or topography that makes development difficult, a variance is likely to be granted.  There are a second set of factors that the hearing officer will consider in determining the appropriate scope of the variance – the hearing officer must decide that (1) the variance is the minimum variance necessary to afford relief; (2) the granting of the variance will not: (i) alter the essential character of the neighborhood or district in which the lot is located; (ii) substantially impair the appropriate use or development of adjacent property; (iii) reduce forest cover in the limited development and resource conservation areas of the critical area; (iv) be contrary to acceptable clearing and replanting practices required for development in the critical area or a bog protection area; nor (v) be detrimental to the public welfare.

It is much more difficult to avoid, by variance, the impact of the critical areas buffer.  Critical area protections are established by state law, but its specifics are enacted by each locality in their zoning laws.  In Anne Arundel County, the basic buffers are established in 18-13-304 of the zoning code.

18-13-104.  Buffers, expanded buffers, and buffer modification areas.

  (a)   Buffer. There shall be a minimum 100-foot buffer landward from the mean high-water line of tidal waters, tributary streams, and tidal wetlands. Specific development criteria apply as set forth in Article 17 of this Code and COMAR.

  (b)   Expanded buffer. Except as provided in subsection (c), the 100-foot buffer shall be expanded beyond 100 feet to include contiguous sensitive areas, such as slopes of 15% or greater and hydric soils or highly erodible soils.

For waterfront lots, a 100 foot buffer can significantly diminish the buildable lot area, and the buffer can be expanded significantly if there are steep slopes, erodible soils or streams and wetlands.  At times, this can leave a lot with no area that can be developed without a variance.  A landowner can seek relief by obtaining a variance from the critical areas laws — variances can be granted if the following terms are met.

  (b)   Requirements for critical or bog protection area variances. For a property located in the critical area or a bog protection area, a variance to the requirements of the County’s critical area program or the bog protection program may be granted if the Administrative Hearing Officer makes the following affirmative findings:

     (1)   Because of certain unique physical conditions, such as exceptional topographical conditions peculiar to and inherent in the particular lot or irregularity, narrowness, or shallowness of lot size and shape, strict implementation of the County’s critical area program or bog protection program would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant;

     (2)   (i)   A literal interpretation of COMAR, Title 27, Criteria for Local Critical Area Program Development or the County’s critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas as permitted in accordance with the provisions of the critical area program within the critical area of the County; or

        (ii)   The County’s bog protection program will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the bog protection area of the County;

     (3)   The granting of a variance will not confer on an applicant any special privilege that would be denied by COMAR, Title 27, the County’s critical area program to other lands or structures within the County critical area, or the County’s bog protection program to other lands or structures within a bog protection area;

     (4)   The variance request is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development before an application for a variance was filed, and does not arise from any condition relating to land or building use on any neighboring property;

     (5)   The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area or a bog protection area and will be in harmony with the general spirit and intent of the County’s critical area program or bog protection program;

     (6)   The applicant for a variance to allow development in the 100-foot upland buffer has maximized the distance between the bog and each structure, taking into account natural features and the replacement of utilities, and has met the requirements of § 17-9-208 of this Code;

     (7)   The applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, § 8-1808, of the State Code; and

     (8)   The applicant has evaluated and implemented site planning alternatives in accordance with § 18-16-201(c).

The critical area variance provisions require the developer to affirmatively show that there can be no reasonable building without a variance.  It also requires the developer to do sufficient planning and engineering to prove that the development will be no worse for development that fully forested buffer lands.  For better or worse, the real world effect of these provisions is that variances are only available to highly sophisticated and deep-pocketed applicants.  For those that are opposed to a development within the buffer, there are significant avenues that can be pursued — but in many cases effective opposition also requires significant engineering and legal expertise.

In conclusion — variances are exceptions to existing law that are available to a property owner if he or she has property that could not reasonably be developed without some sort of relief from the laws on the books.  Variances exist, at least in significant part, because the Supreme Court of the United States has determined that government cannot strip the value from real property by passing laws that prevent its reasonable use.  That sort of law is deemed a regulatory taking without compensation, and violates the United States Constitutional prohibition against the government taking citizen’s property without just compensation.

J. Dirk Schwenk is a Maryland Real Estate, Waterfront Property, Civil Litigation and Maritime Lawyer from Annapolis, Maryland.  He provides civil litigation services in contract disputes, environmental and zoning issues, adverse possession and boundary disputes.  He graduated cum laude (with honors) from the University of Maryland School of Law and has been in private practice in Maryland ever since.

Boundary Disputes and Land Surveys

Maryland’s highest court issued a decision last week in Webb v. Nowak, a case about boundary disputes.  The case arose because the Nowak’s cut down and sold timber on a parcel of land that the Webb’s believed they owned – this led to accusations of trespass and claims of adverse possession.  Both parties obtained surveys to determine where the boundary line was supposed to be.  The original 1928 deed set the mutual property line at an “existing fence” and then ran from the fence “340 feet more or less” to a road.  The Nowak’s surveyor concluded that there were remnants of a fence and other evidence of its location when he surveyed almost 80 years later in 2007.  His testimony included pictures of a fence post, the borings of a tree that had grown around a fence post and a description of a swale that he concluded indicated the edge of a formerly tilled field.  He therefore concluded that the 340 foot measurement was a mistake, and the distance should only be about 200 feet.  The Webb’s surveyor relied on a point 340 feet from the road, but did not note any evidence of a fence at that location.

For a starting point, the Court of Appeals concluded that there was a question of fact concerning the correct location of the boundary.  A “determination of which of two surveys reflected the true boundaries of disputed land as intended by the original surveyor is a question of fact.”  Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).

The determination of the boundary line in this case … must involve comparing the Wolf deed to conditions in the field—e.g., the location and condition of the Existing Fence, the location of the Private road and County road, the location of other monuments, the topography of the land, and even the location of surveyors’ pins.”

Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).  The Court went on to conclude that the 340 foot measurement was a mistake, because the fence was a monument and “monuments control over courses and distances where they continue to exist, or their locations can be determined with reasonable certainty.”  Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).

The takeaway for a current landowner?  First, if there is a dispute about the correct boundary in a deed, the testimony of a surveyor will be of paramount importance.  This brings me to land surveys — In Maryland, land surveyors are licensed by the State and the state regulates what must be included in certain types of surveys.

What most people receive when they buy a house — a location drawing — is the lowest form of survey and it cannot be given to someone unless they acknowledge in writing that “A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE.” COMAR 09.13.06.06.  The purpose of a location drawing is only to “provide some assurances that improvements are located on the property.  This assurance is for the use of a lend or an insurer only.”  Id.  So a homeowner that purchases a property is not supposed to rely on the location drawing for assurances that the boundaries are correct.

An accurate and reliable survey that is likely to be accepted in Court needs to be at least a Boundary Survey.  A boundary survey will establish and mark the “physical position and extent of the boundaries of the property” and requires that monuments (surveyors stakes) be set and a plat produced.  COMAR 09.13.06.03.  Conducting the survey is what will place the surveyor in a position to testify as an expert to the location of the lines.  And in the case of Webb v. Nowak, it is what put the surveyor in a position to testify that a line described in a deed as 340 feet was really only 200 feet – and that testimony made all the difference.

For more on types of surveys, see Types of Land Surveys

J. Dirk Schwenk graduated from the University of Maryland School of Law in 1997, cum laude, and practices in real estate, waterfront land riparian rights and marine issues in Annapolis, Maryland.

Types of Land Surveys

I regularly receive calls from landowners that have a conflict (or potential conflict) with a neighbor over the boundaries between their properties.  For waterfront property, this may involve the location of a pier.  For the homes in planned and platted communities, this may involve the location of a paper road or community land.  For everyone it might involve a question of where exactly is the shared line between two properties.  These locations may be obscured by installed fences or sheds, by a history of maintenance in one area or lost to history.  It is very common that the potential client, and perhaps their opposing neighbor, do not know where the location is that is called for in the deed or plat.

 

Usually one of my first questions is whether the property has been properly surveyed.  If so, this will narrow the field of dispute a great deal.  Oftentimes the property owner does not have a survey or if they do only has the Location Drawing that they received at purchase or perhaps just the neighborhood plat.  The plat is an important legal document which is relevant (and may establish) the legal boundaries, but it is not the same as being able to locate actual boundaries in the field.  In Maryland, there are several kinds of surveys identified in the regulations, each of which serves a different purpose.  Any qualified surveyor should be able to perform them – a very good surveyor will also be able to testify as needed.  Oftentimes there will be multiple categories on a single plat, but it is good to know what you are looking at, and what you should be able to expect from your surveyor.  Here are some thoughts on each type of survey.

 

1. Location Drawings.  A location drawing is the depiction of the property you receive when you purchase a house.  Although it looks like a survey, it hardly qualifies.  To start with, although you may not remember, if you received one you had to sign a piece of paper that says: A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED ON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE.  The purpose of a boundary survey is to “locate, describe and represent the positions of buildings or other visible improvements affecting the subject property.”  For a location drawing, the surveyor is offering the insurance company and mortgage company an assurance that any improvements to the property are within the boundaries — but that is it.  There are no true assurances to the owner of the size or location of the property, whether there are easements across it, or any of the other items that are likely to cause disputes.

 

2. Boundary Surveys.  A boundary survey “is a means of marking boundaries for sufficient definition and identification to uniquely locate each lot, parcel or tract” and to “establish, reestablish or describe … the physical position and extent of the boundaries of real property.”  If you have a dispute with a neighbor about where the property line is, this is the type of survey that you need.  The surveyor should mark the corners of the property with survey stakes and provide a plat of the area.  To create it, the surveyor will do field work including locating any existing boundaries and markers and review the chain of title to determine what is called for in the deeds.  The surveyor is to accept and review private and public records, and note conflicting boundary line locations.  Field work is to include measurement of locations to an accuracy of 20 millimeters and take account of visible encroachments and visible indications of rights including those asserted by adverse possession or prescription.

 

3. As built, Constructed or Record Surveys: This is the type of survey that is done where there is a question about whether something that has been constructed (say a fence, building or pier) is in the correct location in relation to the boundaries.   They are required to have sufficient accuracy to “permit the determination of whether the position of visible constructed improvements encroach upon adjoining properties” in rights of way or in easements.  In the case of a pier, this will mean that a determination must be made, typically by asking the County zoning officials, of where the riparian line is to be drawn.

 

4. Field Run Topographic Survey: this is the correct survey if the contours of the property are needed, including the location of the mean high water line for waterfront properties.

 

5. Field Run Planimetric Survey: This is similar to a location drawing, except that it is done as a full survey in order to “locate, describe, map or all of these, the horizontal positions of the physical features and characteristics of the earth and other features.”

 

6. Metes and Bounds Description: Instead of a depiction of the property on a plat, this is “a written legal description of the subject tract of land that provides information necessary to propertly locate the property on the ground and distinctly set it apart from all other properties.”

 

7. Right of Way/Easement Surveys: An easement or right of way is a legal right of one person to access property owned by another.  It might be a narrow walking path to reach a beach or other feature, or it might be a complete right of use (such as a community park) that prevents the deeded owner from developing the property in any way.  An easement survey “is a means of obtaining, reporting, or displaying … the necessary data to establish or reestablish the location of sufficient property lines of the affected tract of land to assure the accurate location of the strip or parcel of land being described for the use and benefit of others.  Markers need not be set, but the survey is otherwise required to meet the same standards as a boundary survey.

 

8. Special Purpose Surveys: This is essentially a catch-all category that covers anything aside from the first seven types noted above, but it is not to be used to lower the required standards described in the regulations.

Dirk Schwenk is a graduate, cum laude, from the University of Maryland School of Law.  He practices in real estate, waterfront and riparian law and Maryland boating issues. Baylaw, LLC is located in Annapolis, Maryland.

Environmental Groups Have Increased Rights To Challenge Permits

The Maryland Court of Appeals recently issued a decision which confirms that an environmental group (or other membership group) can have independent standing to challenge a permit granted by the Department of Environment in Court. The statute reviewed, however, is specific to the Department of the Environment, and the requirement that the group participate at the administrative level remains intact.

Patuxent Riverkeeper v. Maryland Dept. of Env’t, 139 SEPT.TERM 2010, 2011 WL 4502141 (Md. Sept. 30, 2011)

Opinion BATTAGLIA, J. *1 In this case, we are asked to determine whether a nonprofit environmental group, Patuxent Riverkeeper,1 Petitioner, (“Riverkeeper”), has standing2 to initiate a judicial review action of a decision of the Respondent, the Maryland Department of the Environment, (“MDE”), to issue a “non-tidal wetlands permit”3 to Petrie/ELG Inglewood, LLC, now known as Woodmore Towne Centre, LLC, Respondent (“Woodmore Towne Centre”),4 in connection with the development of the Woodmore Towne Centre at Glenarden in Prince George’s County. Specifically, Woodmore Towne Centre had applied for the permit to construct a road extension and stream crossing at Ruby Lockhart Boulevard in order to provide primary access into the development. During the administrative proceeding before MDE, Riverkeeper had submitted written comments against the permit, asserting that Woodmore Towne Centre had not demonstrated that the proposed road extension and stream crossing had “no practicable alternative” that would “avoid or result in less adverse impact on nontidal wetlands.”After MDE approved the permit, Riverkeeper initiated a judicial review action in the Circuit Court, after which both MDE and Woodmore Towne Centre filed motions to dismiss for lack of standing.5 The Circuit Court dismissed the judicial review action, and Riverkeeper petitioned this Court for a writ of certiorari, which, prior to any proceedings in the intermediate appellate court, we granted, Patuxent Riverkeeper v. Department of the Environment, 418 Md. 190, 13 A.3d 798 (2011), to address the following question:Did the circuit court err when it interpreted the federal test for standing and held that the Riverkeeper lacked standing to challenge the issuance of a Maryland nontidal wetlands and waterways permit authorizing permanent and temporary impacts to nontidal wetlands and streams where one of Riverkeeper’s members alleged that the permit would result in future and threatened harm to his recreational, aesthetic, and economic interests in the Western Branch watershed and tributary?

We shall hold that Riverkeeper has standing to initiate a judicial review action, because its member, David Linthicum, had alleged sufficient harm to his aesthetic, recreational, and economic interests in connection with the issuance of the non-tidal wetlands permit in issue.Section 5–204(f) of the Environment Article, enacted by Chapters 650 and 651 of the Maryland Laws of 2009 and effective January 1, 2010, enables a person to seek judicial review of an administrative determination by the Maryland Department of the Environment regarding certain environmental permits, including those affecting non-tidal wetlands, if the person satisfies the federal rubric for standing:(f) Judicial review of final determination by Department.—A final determination by the Department on the issuance, denial, renewal, or revision of any permit issued under Title 5, Subtitle 5 or Subtitle 9, § 14–105, § 14–508, § 15–808, or § 16–307 of this article is subject to judicial review at the request of any person that: *2 (i) Meets the threshold standing requirements under federal law; and(ii) 1. Is the applicant; or 2. Participated in a public participation process through the submission of written or oral comments, unless an opportunity for public participation was not provided.Maryland Code (1982, 2007 Repl.Vol., 2010 Supp.), Section 5–204(f) of the Environment Article.

Prior to this enactment, standing to challenge permitting decisions by MDE was limited to a person who was “aggrieved” by the agency’s action, namely “one whose personal or property rights [were] adversely affected by the decision.” See Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 144, 230 A.2d 289, 294 (1967); Sugarloaf Citizens’ Ass’n v. Department of Environment, 344 Md. 271, 288, 686 A.2d 605, 614 (1996) (“[I]n order to be ‘aggrieved’ for purposes of judicial review, a person ordinarily must have an interest ‘such that he is personally and specifically affected in a way different from … the public generally.’ ”) (citations omitted); 120 West Fayette Street, LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 270–71, 964 A.2d 662, 671–72 (2009). Moreover, a group could not establish standing to initiate judicial review of a permitting decision by an administrative agency, unless the organization had a “property interest of its own—separate and distinct from that of its individual members.” Medical Waste Associates, Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 612, 612 A.2d 241, 249 (1992), quoting Citizens Planning & Housing Ass’n v. County Executive of Baltimore County, 273 Md. 333, 345, 329 A.2d 681, 687 (1974).In enacting Chapters 650 and 651 of the Maryland Laws of 2009, which originated as Senate Bill 1065 and House Bill 1569, the General Assembly embraced the “broader” notion of standing applied in federal courts, to enable both individuals and organizations to challenge environmental permits in judicial review actions, were certain conditions to exist:With respect to cases involving challenges to specific types of permits, Maryland courts have defined “aggrievement” to mean the ownership of property either adjacent to, or within “ ‘sight or sound’ range of the property that is the subject of [the plaintiff’s] complaint.”The Court of Appeals has held that an association lacks standing to sue where it has no property interest of its own, distinct from that of its individual members. Citizens Planning & Housing Ass’n v. County Executive, 273 Md. 333, 329 A.2d 681 (1974). In Medical Waste Ass’n [Associates ] v. Maryland Waste Coalition, 327 Md. 596, 612 A.2d 241 (1992), the Court of Appeals stated that if an individual or organization is seeking to redress a public wrong, the individual or organization has no standing unless the wrong suffered is different in character and kind from that suffered by the general public.

Federal law is broader than State law in its determination of standing. Under federal law, a party has standing if its use and enjoyment of the area is affected by the challenged action/decision or if the party has a particular interest in the property affected. Federal law also makes little distinction between individual and group standing. *3 Environmental Matters Committee Floor Report on House Bill 1569, at 4 (2009).6The touchstone Supreme Court case involving environmental standing, Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), drew the federal landscape in environmental actions. In that case, a judicial review action to enforce a permit authorizing the limited discharge of pollutants, pursuant to the Clean Water Act, 33 U.S.C. § 1342, the Court determined that to satisfy standing in an environmental action, a plaintiff must show that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 180–81, 120 S.Ct. at 704, 145 L.Ed.2d at 627, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992). An environmental group can satisfy standing federally if “its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, 528 U.S. at 181, 120 S.Ct. at 704, 145 L.Ed.2d at 627.

In Friends of the Earth, the Court emphasized that injury in fact has included a negative impact on the organizational representatives’ recreational or aesthetic appreciation of the affected area, in that case the demonstrably diminished ability or desire to hike, camp, picnic, swim, canoe, boat or fish in a river contaminated by pollutants. 528 U.S. at 181–82, 120 S.Ct. at 704–705, 145 L.Ed.2d at 627–28. In addition, the Supreme Court determined that a person may suffer an injury in fact when his economic interests are negatively impacted, for instance, lower home prices due to proximity to a hazardous waste incinerator. Id. at 182–83, 120 S.Ct. at 705, 145 L.Ed.2d at 628. The Court noted that an injury to aesthetic, recreational, or economic interests need not be consummated, so long as an individual can demonstrate reasonable concerns about the effects of the challenged activity. Id. at 183–84, 120 S.Ct. at 705–706, 145 L.Ed.2d at 628–29.Such aesthetic, recreational, or economic interests or values, however, must be based upon a demonstrable record of regularly utilizing the affected area, as well as a desire to do so in the future. In Summers v. Earth Island Institute, 555 U.S. 488, ––––, 129 S.Ct. 1142, 1150, 173 L.Ed.2d 1, 10 (2009), the Supreme Court reasoned that an organizational representative’s affidavit indicating a desire to “visit several unnamed National Forests in the future” was not sufficiently particularized to establish a cognizable aesthetic or recreational interest. Moreover, asserting a past injury to aesthetic or recreational interests, arising for example, from “past … development on Forest Service land,” without demonstrating a continuing or future harm, further does not suffice. Id. at ––––, 129 S.Ct. at 1150, 173 L.Ed.2d at 9–10. The Court also has opined that a genuine nexus must exist between the alleged injury and the challenged conduct, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992), and that the remedy requested must “effectively abate[ ] [illegal] conduct and prevent [ ] its recurrence.” Friends of the Earth, 528 U.S. at 185–86, 120 S.Ct. at 706, 145 L.Ed.2d at 630.7 *4 At the time the new standing test was embraced by the Maryland Legislature, not only had the Supreme Court spoken, but other federal appellate courts already had an opportunity to interpret the tenets of the Supreme Court cases.

The application of these precepts prior to the enactment of Section 5–204(f) of the Environment Article in 2009 illustrates the boundaries of standing in environmental cases to which the General Assembly had referred when it enacted the statute.8 In Sierra Club v. Franklin County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir.2008), the Court of Appeals for the Seventh Circuit determined that a Sierra Club member adequately alleged an injury by asserting that she and her family had taken trips to “fish, kayak, camp, and enjoy the natural beauty and clean environment” of a lake, located three miles from the site of a proposed power plant, and that if the plant were built, she would cease her recreational trips. Similarly, in American Canoe Ass’n, v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 542 (6th Cir.2004), the Court of Appeals for the Sixth Circuit reasoned that an environmental group representative had demonstrated a sufficient injury when he alleged that he previously recreated in a river near a water treatment plant, but that he presently refused to do so, because of pollution caused by discharges from the plant. In so doing, federal appellate courts have noted that a plaintiff may express reasonable concerns about the future impacts of the challenged activity. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir.2000) (reasoning an environmental group member “need not wait until his lake becomes barren and sterile or assumes an unpleasant color and smell before he can invoke the protections of the Clean Water Act”).The injury alleged must share a specific nexus with the harm asserted. In Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 995 (9th Cir.2000), the Court of Appeals for the Ninth Circuit determined that the plaintiff had adequately demonstrated such a nexus by indicating that sediments in defendant’s marine leasehold contained elevated concentrations of pollutants, that defendant had discharged such pollutants, and that defendant’s marine leasehold was “devoid of life.” In contrast, in Center for Biological Diversity v. Lueckel, 417 F.3d 532, 540 (6th Cir.2005), the Sixth Circuit reasoned that although the environmental group representatives had shown that they had suffered concrete injuries to their aesthetic, recreational, and scientific interests in the scenic rivers in question due to commercial logging, the plaintiffs had failed to demonstrate the requisite connection because they had not referred to specific evidence that the United States Forest Service’s failure to enact a “comprehensive resource management plan” had caused the approval of the environmentally harmful projects. *5 According to the federal appellate court, an aggrieved party also must show that a favorable decision will likely, not merely speculatively, relieve the injury alleged. Alleging a previous injury, for instance, without referencing a continuing or future harm, will not suffice. Lueckel, 417 F.3d at 537 (reasoning that “plaintiffs … must show that actual, site-specific activities are diminishing or threaten to diminish their members’ enjoyment of the designated river segments”).9

The parties in the present case differ, though, not regarding the test for standing, but in its application to the factual circumstances presented. Riverkeeper asserts that its member, Mr. Linthicum, suffered an injury in fact, because his aesthetic, recreational, and economic interests in the Patuxent River, particularly the Western Branch watershed,10 have been jeopardized by the road extension and stream crossing allowed by the permit. In particular, Mr. Linthicum asserts that the upstream impacts caused by the crossing will cause “nitrogen and other pollutants” to leach into waters downstream. Woodmore Towne Centre counters that Mr. Linthicum failed to satisfy the standing inquiry, because he failed to demonstrate that the issuance of the permit has negatively impacted his paddling and cartography activities on the Western Branch watershed.11In his affidavit, Mr. Linthicum described the aesthetic and recreational interests he has in paddling, wading, and clearing branches in the Western Branch of the Patuxent River:5. I visit the Patuxent River almost every other day. I have visited and will continue to visit the Western Branch every few months. When visiting the Western Branch, I paddle along the tributary, and also wade in the water to clear out branches for the purpose of waterway maintenance and navigation. I have been paddling, wading, and clearing branches and other blockages in the Western Branch for nearly ten years. Beyond my recreational interests in the Western Branch tributary and watershed, I also have aesthetic and environmental interests in the Western Branch, as the river and watershed is much healthier and cleaner than surrounding watersheds such as the Anacostia watershed.6. The area of the Western Branch tributary and watershed that I most often visit is downstream from the location of the Woodmore Towne Center Project. I sometimes paddle in the Western Branch as far north as Upper Marlboro, which is approximately 8.5 miles downstream from the areas of wetlands and streams that are impacted by the Woodmore Towne Center.He further described the negative impact of the issuance of the MDE permit on the wetlands and streams in the Western Branch, where he most often paddles and clears blockages in the waterway, jeopardizing his aesthetic and recreational interests:7. The wetlands permit pertaining to the Woodmore Towne Center will cause impacts to wetlands and streams in the Western Branch watershed. These impacts will ultimately have a direct effect on the watershed and the river downstream, where I most often paddle and clear blockages in the waterway. Specifically, the stream impacted by the Ruby Lockhart Boulevard extension on the Subject Property is the north fork of the Southwest Branch of the Patuxent River (this stream is marked “S” on a map that I prepared for the Subject Property, attached as Exhibit C). This stream runs southward from the Subject Property through developed and undeveloped land before ultimately joining the Western Branch tributary approximately five miles downstream. Smaller drainages on the north end of the Subject Property (marked as “W” on Exhibit C) also connect directly with the Western Branch and the Patuxent River itself. These smaller drainages flow into Bald Hill Branch approximately 3/4 mile from the Subject Property. Bald Hill Branch then joins the Western Branch just over a mile further downstream. *6 8. The health of the Western Branch, including the area where I most often paddle, wade, and clear trees and other blockages, will suffer as a direct result of the impacts to the connected streams and tributaries just a few miles upstream at the Woodmore Towne Center site.9. Diverting and/or compromising the streams on the Subject Property can affect the flow rate and the ecology of the tributaries of the Patuxent River. Moreover, drainage of stormwater from the impervious surfaces of the Woodmore development into the surrounding streams and watershed will further degrade the water quality of the Western Branch. Western Branch is a system already in decline due to the vast amount of paving, construction, channelization and other human intervention in its natural functions.

Like many tributaries, streams, and creeks elsewhere in Prince George’s County, Western Branch fails to meet Federal water quality standards, and appears to be approaching the tipping point of no return.10. The impacts to wetlands on the Subject Property will also have a negative effect on my activities downstream in the Western Branch. Wetlands provide recharge and storage of surplus water during storm events, which can lessen the impacts of flooding and property damage to downstream neighbors. Wetlands serve as natural “sponges” to absorb manmade toxins and poisons that leach from surrounding contaminated runoff caused by paved surfaces, trash, and chemicals applied to urbanized lands. The loss of the natural wetlands in a river system eventually leads to the death and desertification of a river’s tributaries and takes an equivalent toll on the waters of the main channel.11. I have reviewed recent scientific and academic literature that has discussed the connection, both in Maryland and in general, between urbanization, impacts to streams and headwaters, and the deleterious effects on watersheds and rivers downstream. One of these articles discussing this connection states: “Headwater systems are important sources of sediments, water, nutrients, and organic matter for downstream reaches. Despite the significant roles of headwater systems within the channel network, the ecological values of headwater systems are underestimated, and their processes have been extensively modified by land use.”See Takashi Gomi, Roy C. Sidle & John S. Richardson, Understanding Processes and Downstream Linkages of Headwater Systems, BioScience, Vol. 52, No. 10, Oct. 2002, at 914. I have also read that “[the] natural dendritic properties of stream networks play an intrinsic role in the delivery of nitrogen and other pollutants to downstream receiving waters from headwater locations throughout watersheds.” See Richard B. Alexander, Elizabeth W. Boyer, Richard A. Smith, Gregory E. Schwarz & Richard B. Moore, The Role of Headwater Streams in Downstream Water Quality, Journal of the American Water Resources Association, Vol. 43, No. 1, Feb. 2007, at 57. In the context of streams and wetlands, the term “dendritic” refers to the branch-like characteristics of upstream headwaters, which then funnel into a single stream or river downstream, as is the case with the Western Branch watershed and tributary. *7 (internal footnote omitted).On the basis of Mr. Linthicum’s affidavit, as well as the testimony he presented at a hearing on the motions to dismiss,12 the Circuit Court found that Mr. Linthicum is “a frequent recreational paddler” on the Western Branch of the Patuxent River and also has an “aesthetic interest in the beauty of the river and the cleanliness of its water.”

The court further found that Mr. Linthicum has “an economic interest in navigating the river, [because] he charts its tributaries to produce maps and guides that he sells to the Riverkeeper and others.”Despite these findings, the judge dismissed the judicial review action for lack of standing, determining that the injury Mr. Linthicum alleged on behalf of Riverkeeper was merely “conjectural or hypothetical”:On the other hand, Mr. Linthicum has never visited the actual site of the permit at issue and has never paddled on the tributary that has been altered by development of the Towne Center, nor has he testified to an intention or desire to do so. He has not seen any effects, other than seasonal ones, on the parts of the river he does travel since the completion of the work at the Towne Center. Indeed, he did not even realize there had been work impacting a wetland until a few weeks before offering his testimony to the Court, long after that work had been completed.[13]In other words, completion of the work authorized by the wetlands permit issued by MDE has not affected Mr. Linthicum’s day to day life on the river in any manner whatever. Instead, Mr. Linthicum claims that the Towne Center development will “ultimately” impact the watershed downriver where he carries on his business. Affidavit of David Linthicum ¶ 7. This is precisely the conjectural or hypothetical injury forbidden by Summers, supra. Mr.

Linthicum has a good-faith belief that continued urbanization of Prince George’s County will one day result in the erosion of the wetlands and waterways that he loves. As he testified, he fears the “death by a thousand cuts.” This is not a sufficient injury in fact to establish standing under federal law and Md.Code, Enviro. § 5–204(f).We disagree with the Circuit Court’s legal assessment.14 Mr. Linthicum alleged, and the Circuit Court found, that he had adequately asserted demonstrable aesthetic, recreational, and economic interests in the Western Branch as an avid paddler and mapmaker. The Circuit Court determined that the harm alleged, however, was not sufficiently concrete nor imminent, because Mr. Linthicum claimed that the permit allowing the road expansion and stream crossing would “ultimately” impact the Western Branch watershed downriver “where he carries on his business.” In so doing, the judge failed to credit the reasonable concern that Mr. Linthicum manifested about the future harm to the ecology of the Western Branch that would result from “diverting and/or compromising” upriver streams. *8 The injury suffered by Mr. Linthicum, moreover, shares a sufficient nexus to the issuance of the non-tidal wetlands permit, because Mr. Linthicum alleged, referring to scientific articles as well as his own experiences, that stream crossings at headwaters and wetlands, such as that constructed at Ruby Lockhart Boulevard, can cause negative affects downstream on the Western Branch watershed. Finally, at a hearing before the Circuit Court regarding the motions to dismiss, Frederick Tutman, Chief Executive Officer of Riverkeeper, described methods to abate the harm caused by the issuance of the permit, including rescission of the permit, as well as more intensive mitigation efforts:I would say in addition to the rescission of the permit, I think look at broader or more specific mitigation in line with the scope of the impacts [,] [b]ut, also, I think something of great value is being taken away from citizens adjacent to this site and the county and I don’t think it’s being put back. I think the quality of the mitigation that’s been approved by the State [,] I don’t think begins to really get to the heart of what’s being taken away.

As a result, the motions to dismiss for lack of standing on the part of Riverkeeper should not have been granted, and the judicial review action should be permitted to proceed.JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY RESPONDENT, PETRIE/ELG INGLEWOOD, LLC, ALSO KNOWN AS WOODMORE TOWNE CENTRE, LLC.

Patuxent Riverkeeper v. Maryland Dept. of Env’t, 139 SEPT.TERM 2010, 2011 WL 4502141 (Md. Sept. 30, 2011)

Top 5 Issues When Purchasing Waterfront

by Dirk Schwenk – dschwenk@waterfrontlaw.com and Mike Piasecki III – mike@marylandwaterfrontproperty.com

There is nothing that can compare to the peace, tranquility and sense of well-being that accompanies ownership of a piece of waterfront property. That feeling should not be disturbed by legal problems that can be prevented or at least managed. In waterfront property there are a few issues that arise with such regularity that they should be considered prior to any purchase. Mike Piasecki, III, Associate Broker, Prudential Carruthers Realtors in Elkton and Ocean Pines (www.marylandwaterfrontproperty.com) and J. Dirk Schwenk, attorney at Baylaw, LLC (www.waterfrontlaw.com) got together to come up with a “top five” list of things that should be thought through. These issues are focused on Maryland waterfront property, but they apply everywhere where piers, views and access to the water are of top concern. Here they are:

1. Community Waterfront versus Private Waterfront.

Many waterfront, waterview and water access properties are located in developments where the original developer subdivided a large tract and reserved the waterfront for the use of all of the houses in the neighborhood. Interior houses may be listed as “water access” properties and have affirmative rights to community beaches, boat ramps and other facilities. In many of these developments, there is also a strip of land that lies along the water and surrounds the entire community and was intended to allow for members of the community to walk and have access to the entire waterfront. The ownership structure of these walks can vary widely, but if they are present, there are special concerns for the homes nearest the water. Those homes may have the right to build and maintain a pier — but the pier may actually be owned by the community and be available for all of the members to use. Or there may be no right to a pier at all. The possible variations are too numerous to list, but an owner purchasing “waterfront” in such a community should be sure to understand exactly what the obligations and benefits are in the particular community.

2. Waterfront versus Waterview.

A true “waterfront” property is one that has riparian rights associated with it. In Maryland and most of the states on the East Coast of the United States, the owner of a property that has riparian rights has the right to apply to construct a pier or other waterfront improvement, has the first right to apply for permits for waterfowl hunting, and has the right to prevent others from impeding access to the water or the view of the water. In contrast, a “waterview” property is generally one that is close to the water, but has land owned by someone else between the land and the shoreline. A waterview may have a limited (or no) right to build a pier and may not have any guarantee that another owner will not build a fence, structure or put in plantings that obstruct the waterview. Careful consideration should be paid to what might be placed between the waterview property and the water — if it is community land on which nothing can be built that is very different than private land on which someone in the future may build a multi-story home.

3. Pier Locations, Boundary Lines and Permits.

Having (or keeping) a pier is a first priority consideration for many waterfront lots. It is not relaxing and fun to have a dispute with a neighbor about whether a pier is on his property, your property, on the line, should be shared, or whether a pier that you were counting on using is even legal in the first place. If you are considering a home where there is currently a pier or where you would like to put in a pier, its continued viability should be examined. First, consult with planning and zoning — was the existing pier built with a permit (or grandfathered?), or if you would like to put in a new pier, can an adequate pier be placed on the site given environmental limitations and the location of neighboring piers? Second, is there any dispute with a neighbor about the location of any of the piers (does a pier encroach the property line extended into the water?) or is there an expectation that a pier will be shared? If you are purchasing a property that is one of several that were previously owned by a single family, it is very common that multiple homes shared a single pier. This sort of agreement should be spelled out — or it can quickly lead to a disagreement.

4. The Obligation and Ability to Maintain the Waterfront.

For any property that faces significant wave action or is on a bluff, there will be erosion concerns. For all waterfront properties, there are significant legal restrictions on the owners’ ability to clear growth and trees, to fill eroded areas, and to construct shoreline protection. The cost and ability to obtain permits for waterfront repairs and maintenance should be considered. For example, in many waterfront communities, there are existing bulkheads or revetments. Depending on the particular community, the cost to maintain these structures may lie with the nearest individual landowner or with the community. In Ocean Pines, Maryland, for example, all properties in the community must pay an annual HOA assessment toward the upkeep of common area facilities, but in the instance of waterfront properties, the assessment may also cover the cost of maintenance to the property’s bulkhead. We say “MAY” because this is true in some sections of Ocean Pines, whereas in other sections, waterfront property owners, although they still pay an annual assessment that is higher than a land locked property, have the cost and burden of bulkhead maintenance placed squarely upon the homeowner. Sounds confusing doesn’t it? This example is exactly why you should consult a waterfront law specialist, and/or waterfront specialist real estate broker before entering into a contract to sell or purchase waterfront property anywhere, but especially in the state of Maryland. Another instance? In Anne Arundel County, Maryland, there have been news reports of criminal charges being filed because a waterfront property owner hired a landscaper to clear trees and bushes along the waterfront. Just like piers, it is wise to consult with knowledgeable professionals and zoning departments before becoming set on plans for improvements.

5. Choose the right professionals.

Purchasing and owning waterfront is meant to improve ones quality of life, and usually it does. There will always be an unfortunate few that end up purchasing a large, unexpected and expensive dispute, and their quality of life is most often not improved. Without question, the best means of avoiding unexpected difficulties is to associate with professionals with experience and interest in waterfront and riparian properties. A good realtor will know the particular area where a property is located, or will know the questions (like the ones above) that must be analyzed in order to know if a property is right for you. A good lawyer will know whether a deed is to transfer all of the rights you expect, (or maybe just some), will be able to spot misunderstandings in pier sharing agreements, and will know how to resolve a dispute that does arise. We hope these pointers help to make your next waterfront property purchase or sale, an enjoyable one!

Dirk Schwenk – dschwenk@waterfrontlaw.com
and Mike Piasecki III – mike@marylandwaterfrontproperty.com

Critical Area Enforcement Update

Little Island – Critical Areas Enforcement Follow Up

I have written elsewhere on the difficult situation involving Little Island on the Magothy River in Anne Arundel County, Maryland.  The owner of the Island, Mr. Wagner, was a professional developer and owner of Wagner Homes.   He purchased Little Island, a true island, and obtained minimal permits to install shoreline protection and replace the siding and windows in an existing rustic house.   He then installed a great deal more rip rap that his permit allowed, tore down the small house and built a mansion in a different location, and otherwise vastly exceeded and violated the permits he had.  Some years later, the County enforcement agencies got wind of what had occurred, and began to try to take action.

In 2008, the powers-that-be discovered that one of the most important enforcement mechanisms – revoking the license of a wrong-doer developer – was unavailable to address the permit violations on Little Island. (See, Little Island, Big Mess). Wagner’s builder’s license could not be revoked, because this was his personal home.  The license of the installer of the rip rap could not be revoked (despite the obvious permit violations), because shoreline protection was not considered a home improvement, and therefore a home improvement license was not required.  As a result, several changes to the Critical Areas Law were sought and enacted during the 2008 legislative session.  The text of Senate Bill 844 is included below, and shows the redactions, additions and changes to the law.  The new law was intended to address some of the enforcement problems that the Wagner situation identified.

SENATE BILL 844

1 AN ACT concerning
2 Chesapeake and Atlantic Coastal Bays Critical Area Protection Program –
3 Administrative and Enforcement Provisions
4 FOR
the purpose of authorizing the Maryland Rome Improvement Commission to
S deny, reprimand, suspend, or revoke certain licenses for failure to comply with
6 certain legal terms or requirements in the Chesapeake and Atlantic Coastal
7 Bays Critical Area; requiring the Critical Area Commission for the Chesapeake
8 and Atlantic Coastal Bays to notify the Maryland Rome Improvement
9 Commission on a contractor’s failure to comply with certain terms or
10 requirements in the Critical Area; authorizing the Critical Area Commission to
11 adopt and amend certain regulations; requiring the Critical Area Commission to
12 adopt certain regulations; requiring that local Critical Area programs contain
13 certain procedures, penalty provisions, and other elements; requiring a local
14 jurisdiction to consider certain factors in the determination of certain penalties;
15 requiring that the Critical Area Commission receive certain notice from a local
16 jurisdiction within a certain time; establishing that certain development
17 activities violate certain provisions of law; prohibiting a local jurisdiction from
18 accepting certain applications for a variance unless certain conditions are
19 satisfied; requiring a local jurisdiction to deny a variance and order certain
20 actions under certain circumstances, and authorizing a local jurisdiction to
21 grant proposed approval to a variance under certain circumstances; requiring
22 the Critical Area Commission to review certain proposed variance approvals
23 and issue certain decisions; specifying the applicability of certain standards
24 under certain circumstances; requiring the Critical Area Commission to
25 consider certain factors when reviewing certain map amendments or
26 refinements; prohibiting lot coverage in the buffer in excess of a certain amount,
27 except under certain circumstances; specifying the applicability of certain
28 limitations to the extent of lot coverage, with certain exceptions; requiring the
29 establishment of a certain buffer in a certain area, and allowing for certain
30 reductions under certain circumstances; requiring that certain erosion
EXPLANATION: CAPITALS INI)ICATE MAVPER AI)DEI) TO EXISTING LAW.
Brackets indicate matter deleted from existing law.
2 SENATE BILL 844
1 protections consist of nonstructural shoreline stabilization measures, except
2 under certain circumstances; requiring that the Critical Area Commission
3 consider a local jurisdiction’s determination of a classification mistake and
4 make a certain determination; authorizing a local authority to obtain access and
5 enter a certain property for certain purposes and under certain circumstances;
6 requiring a local authority to take certain actions under certain circumstances
7 related to certain violations; authorizing the Chairman of the Critical Area
8 Commission to invoke certain sanctions and remedies and bring certain actions
9 under certain circumstances; requiring that certain criminal prosecutions and
10 suits for civil penalties be instituted within a certain time; modifying the initial
11 planning areas for the determination of the Chesapeake Bay Critical Area and
12 Atlantic Coastal Bays Critical Area by the use of a certain map; providing for
13 the preparation, distribution, review, refinement, formal adoption, and periodic
14 update of a certain map; clarifying the applicability of certain provisions of law;
15 specifying certain legislative findings; defining certain terms; requiring certain
16 local jurisdictions to report to the Critical Area Commission by a certain date
17 regarding certain procedures; prohibiting a certain construction of this Act;
18 making the effective date of a certain provision of this Act subject to a certain
19 contingency; and generally relating to the Chesapeake and Atlantic Coastal
20 Bays Critical Area Protection Program.
21 BY repealing and reenacting, without amendments,
22 Article — Business Regulation
23 Section 8—101(a)
24 Annotated Code of Maryland
25 (2004 Replacement Volume and 2007 Supplement)
26 BY repealing and reenacting, with amendments,
27 Article — Business Regulation
28 Section 8—101(g) and 8—311(a)
29 Annotated Code of Maryland
30 (2004 Replacement Volume and 2007 Supplement)
31 BY adding to
32 Article — Business Regulation
33 Section 8—506
34 Annotated Code of Maryland
35 (2004 Replacement Volume and 2007 Supplement)
36 BY repealing and reenacting, with amendments,
37 Article — Natural Resources
38 Section 8—1801, 8—1802(aXlS) through (18), 8—1806, 8—1807(a) and (b),
39 8—1808(c), (d), and (e), 8—1808.1(c) and (e)(2)(i), 8—1808.3, 8—1809(h) and
40 (o)(1), 8—1811(b)(2), 8—1815(a), and 8—1815.1(b)
41 Annotated Code of Maryland
42 (2007 Replacement Volume)
43 BY repealing and reenacting, without amendments,

SENATE BILL 844 3
1 Article — Natural Resources
2 Section 8—1802(aXl)
3 Annotated Code of Maryland
4 (2007 Replacement Volume)
5 BY adding to
6 Article — Natural Resources
7 Section 8—1802(aXl5), 8—1808.10, and 8—1808.11
8 Annotated Code of Maryland
9 (2007 Replacement Volume)
10 Preamble
11 WHEREAS, Following extensive research and the issuance of a report by the
12 United States Environmental Protection Agency that clearly demonstrated an
13 alarming extent of degradation of the Chesapeake Bay, in significant part because of
14 prominent land use and growth patterns, the Critical Area Commission was created in
15 1984 in order to preserve and restore water quality in the State, to maintain valued
16 wildlife habitat, and to accommodate inevitable growth, and these same legislative
17 concerns were addressed in 2002 when the protections of the Critical Area Program
18 were expanded to include the Atlantic Coastal Bays; and
19 WHEREAS, The Critical Area, which comprises approximately 11% of
20 Maryland’s land mass, includes the majority of the State’s most ecologically fragile
21 and valuable properties; and
22 WHEREAS, From its inception, partnership between State and local
23 government has been a cornerstone of the Critical Area Program; and
24 WHEREAS, To date local Critical Area programs are operative in Baltimore
25 City, 16 counties, and 47 other municipalities, and Critical Area issues directly impact
26 at least seven State departments; and
27 WHEREAS, After nearly a quarter—century of operation, the Critical Area
28 Program has effectively influenced thousands of land use decisions, addressed and
29 minimized the adverse impacts of growth associated with hundreds of requests for
30 growth allocation, and represented a comprehensive effort between the State and local
31 governments to enforce a variety of water quality and habitat protection standards;
32 and
33 WHEREAS, Despite these efforts, additional measures are necessary in order to
34 enhance a cooperative land use and natural resource management program that will
35 restore the quality and productivity of the Chesapeake Bay, Atlantic Coastal Bays,
36 their tidal tributaries, and associated land—based ecosystems; and
37 WHEREAS, Particularly in light of the ongoing, accelerating decline of the
38 State’s water quality resources and the loss of valuable shoreline areas due to erosion
39 and global warming, it is the view of the General Assembly that significant

4 SENATE BILL 844
1 improvements are in order at this time so as to accomplish Program preservation goals
2 more effectively while streamlining the Program and enhancing its efficiency and
3 predictability; and
4 WHEREAS, Experience has provided several strong indications of how to
5 ensure those Program improvements; and
6 WHEREAS, A key element that is fundamental to the ordinary business
7 operations of all other State agencies is the general authority to adopt regulations, but
8 the ability of the Critical Area Commission to do so was rendered unclear by the
9 March 10, 1987 Opinion of the Attorney General, 72 Md. Op. Atty. Gen. 14, 1987 WL
10 339797 (Md.A.G.), and it is the intent of this legislation to clarify and supersede that
11 Opinion; and
12 WHEREAS, It is likewise the intent of this legislation to strengthen and clarify
13 the reach of the Program where necessary to compensate for gaps in the current
14 structure, such as the institution of more meaningful enforcement mechanisms, and to
15 provide for fairer and more effective Program procedures around the State that will
16 continue to allow for flexibility in recognition of local partners’ varying needs; now,
17 therefore,
18 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF
19 MARYLAND, That the Laws of Maryland read as follows:
20 Article — Business Regulation
21 8—101.
22 (a) In this title the following words have the meanings indicated.
23 (g) (1) “Home improvement” means:
24 (i) the addition to or alteration, conversion, improvement,
25 modernization, remodeling, repair, or replacement of a building or part of a building
26 that is used or designed to be used as a residence or dwelling place or a structure
27 adjacent to that building; or
28 (ii) an improvement to land adjacent to the building.
29 (2) “Home improvement” includes:
30 (i) construction, improvement, or replacement, on land adjacent
31 to the building, of a driveway, fall—out shelter, fence, garage, landscaping, porch, or
32 swimming pool;

SENATE BILL 844 5
1 (ii) A SHORE EROSION CONTROL PROJECT, AS DEFINED
2 UNDER
§ 8-1001 OF THE NATURAL RESOURCES ARTICLE, FOR A RESIDENTIAL
3 PROPERTY;
4 (III)
connection, installation, or replacement, in the building or
5 structure, of a dishwasher, disposal, or refrigerator with an icemaker to existing
6 exposed household plumbing lines;
7 [(iii)1 (TV) installation, in the building or structure, of an
8 awning, fire alarm, or storm window; [andi
9 [(iv)1 (v) work done on individual condominium units; AND
10 (VI) CONSTRUCTION, IMPROVEMENT, ALTERATION, OR
11 REPLACEMENT OF LAND OR ANY STRUCTURE IN THE CHESAPEAKE AND
12 ATLANTIC COASTAL BAYS CRITICAL AREA, AS DEFINED UNDER § 8-1802 OF
13 THE NATURAL RESOURCES ARTICLE.
14 (3) “Home improvement” does not include:
15 (i) construction of a new home;
16 (ii) work done to comply with a guarantee of completion for a
17 new building project;
18 (iii) connection, installation, or replacement of an appliance to
19 existing exposed plumbing lines that requires alteration of the plumbing lines;
20 (iv) sale of materials, if the seller does not arrange to perform or
21 does not perform directly or indirectly any work in connection with the installation or
22 application of the materials;
23 (v) work done on apartment buildings that contain four or more
24 single—family units; OR
25 (vi) work done on the commonly owned areas of condominiums[;
26 or
27 (vii) a shore erosion control project, as defined in § 8—100 1 of the
28 Natural Resources Article, for a residential propertyl.
29 8—311.
30 (a) Subject to the hearing provisions of § 8—312 of this subtitle, the
31 Commission may deny a license to an applicant, reprimand a licensee, or suspend or

6 SENATE BILL 844
1 revoke a license if the applicant or licensee or the management personnel of the
2 applicant or licensee:
3 (1) fraudulently or deceptively obtains or attempts to obtain a license
4 for the applicant or licensee or for another person;
5 (2) fraudulently or deceptively uses a license;
6 (3) fails to give the Commission information required by this subtitle
7 about an application for a license;
8 (4) fails to pass an examination required by this subtitle;
9 (5) under the laws of the United States or of any state, is convicted of
10 a:
11 (i) felony; or
12 (ii) misdemeanor that is directly related to the fitness and
13 qualification of the applicant or licensee to engage in home improvement services;
14 (6) often fails to perform home improvement contracts;
15 (7) falsifies an account;
16 (8) engages in fraud;
17 (9) as a contractor or subcontractor fails to show financial solvency,
18 based on the intended scope and size of the business in relation to total assets,
19 liabilities, credit rating, and net worth;
20 (10) as a contractor or subcontractor lacks competence, as shown by the
21 performance of an unworkmanlike, inadequate, or incomplete home improvement;
22 (11) violates this title;
23 (12) attempts to violate this title; [on
24 (13) violates a regulation adopted under this title; OR
25 (14) IN THE CHESAPEAKE AND ATLANTIC COASTAL BAYS
26 CRITICAL AREA, AS DEFINED UNDER § 8-1802 OF THE NATURAL RESOURCES
27 ARTICLE, FAILS TO COMPLY WITH:
28 (I) THE TERMS OF A STATE OR LOCAL PERMIT, LICENSE, OR
29 APPROVAL ISSUED FOR HOME IMPROVEMENT; OR

SENATE BILL 844 7
1 (II) ANY STATE OR LOCAL LAW, AN APPROVED PLAN, OR
2 OTHER LEGAL REQUIREMENT.
3 8—506.
4 (A) IN THIS SECTION, “CRITICAL
AREA” HAS THE MEANING DESIGNATED
5 UNDER
§ 8-1802 OF THE NATURAL RESOURCES ARTICLE.
6 (B) THE CRITICAL AREA COMMISSION FOR
THE CHESAPEAKE AND
7 ATLANTIC COASTAL BAYS, AS ESTABLISHED UNDER TITLE 8, SUBTITLE 18 OF
8 THE NATURAL RESOURCES ARTICLE, SHALL NOTIFY THE COMMISSION OF ANY
9 CONTRACTOR WHO, IN
THE CRITICAL AREA, FAILS TO COMPLY WITH:
10 (1) THE TERMS OF A STATE OR LOCAL PERMIT, LICENSE, OR
11 APPROVAL ISSUED FOR HOME IMPROVEMENT; OR
12 (2) ANY STATE OR LOCAL LAW, APPROVED PLAN, OR OTHER
13 LEGAL REQUIREMENT.
14 Article — Natural Resources
15 8—1801.
16 (a) The General Assembly finds and declares that:
17 (1) The Chesapeake and the Atlantic Coastal Bays and their
18 tributaries are natural resources of great significance to the State and the nation, AND
19 THEIR BEAUTY, THEIR ECOLOGICAL VALUE, AND THEIR ECONOMIC IMPACT ALL
20 REACH FAR BEYOND ANY ONE LOCAL JURISDICTION;
21 (2) The shoreline and adjacent lands, PARTICULARLY THE BUFFER
22 AREAS, constitute a valuable, fragile, and sensitive part of this estuarine system,
23 where human activity can have a particularly immediate and adverse impact on water
24 quality and natural habitats;
25 (3) The capacity of these shoreline and adjacent lands to withstand
26 continuing demands without further degradation to water quality and natural
27 habitats is limited;
28 (4) Human activity is harmful in these shoreline areas, where the new
29 development of nonwater—dependent structures or [the addition of impervious
30 surfacesl AN INCREASE IN LOT COVERAGE is presumed to be contrary to the purpose
31 of this subtitle, because these activities may cause adverse impacts, of both an
32 immediate and a long—term nature, to the Chesapeake and Atlantic Coastal Bays, and
33 thus it is necessary wherever possible to maintain a buffer of at least 100 feet

8 SENATE BILL 844
1 landward from the mean high water line of tidal waters, tributary streams, and tidal
2 wetlands;
3 (5) National studies have documented that the quality and
4 productivity of the waters of the Chesapeake Bay and its tributaries have declined due
5 to the cumulative effects of human activity that have caused increased levels of
6 pollutants, nutrients, and toxics in the Bay System and declines in more protective
7 land uses such as forestland and agricultural land in the Bay region;
8 (6) Those portions of the Chesapeake and the Atlantic Coastal Bays
9 and their tributaries within Maryland are particularly stressed by the continuing
10 population growth and development activity concentrated in the
11 Baltimore—Washington metropolitan corridor and along the Atlantic Coast;
12 (7) The quality of life for the citizens of Maryland is enhanced through
13 the restoration of the quality and productivity of the waters of the Chesapeake and the
14 Atlantic Coastal Bays, and their tributaries;
15 (8) The restoration of the Chesapeake and the Atlantic Coastal Bays
16 and their tributaries is dependent, in part, on minimizing further adverse impacts to
17 the water quality and natural habitats of the shoreline and adjacent lands,
18 particularly in the buffer;
19 (9) The cumulative impact of current development and of each new
20 development activity in the buffer is inimical to these purposes, AND IT IS
21 THEREFORE IMPERATIVE THAT STATE LAW BE SUFFICIENT TO PROTECT
22 IRREPLACEABLE STATE BUFFER RESOURCES FROM UNPERMITTED ACTIVITY;
23 and
24 (10) There is a critical and substantial State interest for the benefit of
25 current and future generations in fostering more sensitive development [activity] AND
26 MORE EFFECTIVE ENFORCEMENT in a consistent and uniform manner along
27 shoreline areas of the Chesapeake and the Atlantic Coastal Bays and their tributaries
28 so as to minimize damage to water quality and natural habitats.
29 (b) It is the purpose of the General Assembly in enacting this subtitle:
30 (1) To establish a Resource Protection Program for the Chesapeake
31 and the Atlantic Coastal Bays and their tributaries by fostering more sensitive
32 development activity for certain shoreline areas so as to minimize damage to water
33 quality and natural habitats; and
34 (2) To implement the Resource Protection Program on a cooperative
35 basis between the State and affected local governments, with local governments
36 establishing and implementing their programs in a consistent and uniform manner
37 subject to State LEADERSHIP, [criteria] CRITERIA, and oversight.

SENATE BILL 844 9
1 8—1802.
2 (a) (1) In this subtitle the following words have the meanings indicated.
3 (15) (I) “LOT COVERAGE” MEANS THE PERCENTAGE OF A TOTAL
4 LOT OR PARCEL THAT IS:
5
1. OCCUPIED BY A STRUCTURE, ACCESSORY
6 STRUCTURE, PARKING
AREA, DRWE WAY, OR ROADWAY; OR
7 2. COVERED WITH A PAVER, WALKWAY, DECKING, OR
8 OTHER
MANMADE MATERIAL.
9 (II) “LOT COVERAGE” INCLUDES
THE TOTAL GROUND AREA
10 COVERED OR OCCUPIED, INCLUDING ELEMENTS PROTRUDING FROM A
11 BUILDING SUCH AS A STAIRWAY, CANTILEVERED DECK, CHIMNEY, OR
12 OVERHANGING DECK OR BALCONY.
13 (III) “LOT COVERAGE” DOES NOT INCLUDE A FENCE OR
14 WALL THAT IS LESS
THAN 1 FOOT IN WIDTH THAT HAS NOT BEEN CONSTRUCTED
15 WITH A FOOTER.
16 [(1 5)1 (16) (i) “Program” means the critical area protection program
17 of a local jurisdiction.
18 (ii) “Program” includes any amendments to the program.
19 [(16)1 (17) (i) “Program amendment” means any change or proposed
20 change to an adopted program that is not determined by the Commission chairman to
21 be a program refinement.
22 (ii) “Program amendment” includes a change to a zoning map
23 that is not consistent with the method for using the growth allocation contained in an
24 adopted program.
25 [(17)1 (18) (i) “Program refinement” means any change or proposed
26 change to an adopted program that the Commission chairman determines will result
27 in a use of land or water in the Chesapeake Bay Critical Area or the Atlantic Coastal
28 Bays Critical Area in a manner consistent with the adopted program, or that will not
29 significantly affect the use of land or water in the critical area.
30 (ii) “Program refinement” may include:
31 1. A change to an adopted program that results from
32 State law;

10 SENATE BILL 844
1 2. A
change to an adopted program that affects local
2 processes and procedures;
3 3. A change to a local ordinance or code that clarifies an
4 existing provision; and
5 4. A minor change to an element of an adopted program
6 that is clearly consistent with the provisions of this subtitle and all of the criteria of
7 the Commission.
8 [(18)1 (19) (i) “Project approval” means the approval of
9 development, other than development by a State or local government agency, in the
10 Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area by the
11 appropriate local approval authority.
12 (ii) “Project approval” includes:
13 1. Approval of subdivision plats and site plans;
14 2. Inclusion of areas within floating zones;
15 3. Issuance of variances, special exceptions, and
16 conditional use permits; and
17 4. Approval of rezoning.
18 (iii) “Project approval” does not include building permits.
19 8—1806.
20 (a) The Commission has all powers necessary for carrying out the purposes
21 of this subtitle, including the following:
22 (1) [To adopt regulations and criteria IN accordance with Title 2,
23 Subtitle S (Joint Committee on Administrative, Executive and Legislative Review) and
24 Title 10, Subtitle 1 (Administrative Procedure Act) of the State Government Article,
25 TO ADOPT AND AMEND REGULATIONS AS NECESSARY AND APPROPRIATE TO THE
26 ADMINISTRATION AND ENFORCEMENT OF THE STATE AND LOCAL PROGRAMS;
27 (2) To conduct hearings in connection with policies, proposed
28 programs, and proposed regulations or amendments to regulations;
29 (3) To contract for consultant or other services; and
30 (4) To establish an advisory committee, composed of members of the
31 Commission and local citizens and local stakeholder groups, to make recommendations
32 to the Commission with respect to Atlantic Coastal Bays Critical Area programs.

SENATE BILL 844 11
1 (b) AT A MINIMUM, REGULATIONS ADOPTED OR AMENDED UNDER
2 SUBSECTION (A)(1) OF THIS SECTION SHALL:
3 (1) ESTABLISH COMPREHENSIVE STANDARDS FOR BUFFER
4 ESTABLISHMENT, MAINTENANCE, AND LONG—TERM PROTECTION AND FOR
5 BUFFER MITIGATION ACTIVITIES ASSOCIATED WITH VIOLATIONS, VARIANCES,
6 OR AUTHORIZED DEVELOPMENT ACTIVITIES, INCLUDING PROVISIONS TO
7 ENSURE THE PROTECTION AND CONSERVATION OF THE BUFFER AS A STATE
8 WATER QUALITY AND HABITAT RESOURCE ESSENTIAL TO THE RESTORATION OF
9 THE CHESAPEAKE AND ATLANTIC COASTAL BAYS; AND
10 (2) PROVIDE FLEXIBILITY WHEREVER POSSIBLE IN ORDER TO
11 ACCOMMODATE VARIATIONS AMONG LOCAL PROGRAMS.
12 (C) The members of the Commission who reside in the Atlantic Coastal Bays
13 Watershed shall serve on any committee established under subsection (a)(4) of this
14 section.
15 8—1808.
16 (c) (1) (I) [At a minimum,] NOTWITHSTANDING ANY PROVISION IN
17 A LOCAL LAW OR ORDINANCE, OR THE LACK OF A PROVISION IN A LOCAL LAW
18 OR ORDINANCE, ALL OF THE REQUIREMENTS OF THIS SUBTITLE SHALL APPLY
19 TO, AND BE APPLIED BY, A LOCAL JURISDICTION AS MINIMUM STANDARDS FOR a
20 program sufficient to meet the goals [stated in subsection (b) of this section includes]
21 OF THE CRITICAL AREA PROGRAM.
22 (II) AT A MINIMUM, A PROGRAM SHALL CONTAIN ALL OF
23 THE FOLLOWING ELEMENTS, INCLUDING:
24 [(i)1 1. A map designating the critical area in a local
25 jurisdiction;
26 [(ii)1 2. A comprehensive zoning map for the critical area;
27 [(iii)1 3. As necessary, new or amended provisions of the
28 jurisdiction’s:
29 [1.1 A. Subdivision regulations;
30 [2.1 B. Comprehensive or master plan;
31 [3.1 C. Zoning ordinances or regulations;

12 SENATE BILL 844
1
[4.1 D. Provisions relating to enforcement; and
2 [5.1 E. Provisions as appropriate relating to
3 grandfathering of development at the time the program is adopted or approved by the
4 Commission, INCLUDING PROVISIONS FOR BRINGING LANDS INTO
5 CONFORMANCE WITH THE PROGRAM AS REQUIRED UNDER ITEM 13 OF THIS
6 SUBPARAGRAPH;
7 [(iv)1 4. Provisions requiring that project approvals shall be
8 based on findings that projects are consistent with the standards stated in subsection
9 (b) of this section AND THAT THE COMMISSION SHALL RECEIVE WRITTEN NOTICE
10 OF LOCAL DECISIONS ON PROJECT APPROVALS WITHIN 10 WORKING DAYS
11 AFTER THE DATE OF ISSUANCE;
12 [(v)1 5. Provisions to limit [the amount of land covered by
13 buildings, roads, parking lots, or other impervious surfaces,1 LOT COVERAGE and to
14 require or encourage cluster development, where necessary or appropriate;
15 [(vi)1 6. Establishment of buffer areas along shorelines within
16 which agriculture will be permitted only if best management practices are used,
17 provided that structures or any other use of land which is necessary for adjacent
18 agriculture shall also be permitted in any buffer area;
19 [(vii)1 7. Requirements for minimum setbacks for structures
20 and septic fields along shorelines, including the establishment of a minimum buffer
21 landward from the mean high water line of tidal waters, tributary streams, and tidal
22 wetlands;
23 [(viii)1 8. Designation of shoreline areas, if any, that are
24 suitable for parks, hiking, biking, wildlife refuges, scenic drives, public access or
25 assembly, and water—related recreation such as boat slips, piers, and beaches;
26 [(ix)1 9. Designation of shoreline areas, if any, that are
27 suitable for ports, marinas, and industries that use water for transportation or derive
28 economic benefits from shore access;
29 [(x)1 10. Provisions requiring that all harvesting of timber in
30 the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area be in
31 accordance with plans approved by the district forestry board;
32 [(xi)1 11. Provisions establishing that the controls in a program
33 which are designed to prevent runoff of pollutants will not be required on sites where
34 the topography prevents runoff from directly or indirectly reaching tidal waters;
35 [(xii)1 12. Provisions for reasonable accommodations in policies
36 or procedures when the accommodations are necessary to avoid discrimination on the

SENATE BILL 844 13
1 basis of physical disability, including provisions that authorize a local jurisdiction to
2 require removal of a structure that was installed or built to accommodate a physical
3 disability and require restoration when the accommodation permitted by this
4 paragraph is no longer necessary;
5 13. PROCEDURES, INCLUDING CONSOLIDATION OR
6 RECONFIGURATION OF LOTS, THAT SHALL BE APPROVED BY THE COMMISSION
7 AND ASSURE THAT THE FOLLOWING LOTS AND LANDS ARE BROUGHT INTO
8 CONFORMANCE WITH THE PROGRAM TO THE EXTENT POSSIBLE:
9 A. ANY LEGAL PARCEL OF LAND, NOT BEING PART
10 OF A RECORDED OR APPROVED SUBDIVISION, THAT WAS RECORDED AS OF
11 DECEMBER 1, 1985;
AND
12 B. LAND THAT WAS SUBDIVIDED INTO RECORDED
13 LEGALLY BUILDABLE LOTS, WHERE THE SUBDIVISION RECEIVED THE LOCAL
14 JURISDICTION’S FINAL APPROVAL BEFORE JUNE 1, 1984;
15 [(xiii)1 14. Except as provided in subsection (d) of this section,
16 provisions for granting a variance to the local jurisdiction’s critical area program, in
17 accordance with regulations adopted by the Commission concerning variances set forth
18 in COMAR 27.01.11; [and]
19 [(xiv)1 15. Penalty provisions establishing that, in addition to
20 any other penalty applicable under State or local law, a person who violates a
21 provision of this subtitle or of a program, INCLUDING A CONTRACTOR, PROPERTY
22 OWNER, OR ANY OTHER PERSON WHO COMMITTED, ASSISTED, OR PARTICIPATED
23 IN A VIOLATION:
24 A. [is] IS subject to a fine not exceeding $10,000; AND
25 B. MAY BE HELD JOINTLY OR SEVERALLY
26 RESPONSIBLE FOR EACH VIOLATION; AND
27 16. IN ACCORDANCE WITH REGULATIONS ADOPTED
28 BY THE COMMISSION, ADMINISTRATIVE ENFORCEMENT PROCEDURES IN
29 ACCORDANCE WITH DUE PROCESS PRINCIPLES, INCLUDING NOTICE AND AN
30 OPPORTUNITY TO BE HEARD, AND ESTABLISHING THAT:
31 A. EACH VIOLATION OF THIS SUBTITLE OR OF A
32 REGULATION, RULE, ORDER, PROGRAM, OR OTHER REQUIREMENT ADOPTED
33 UNDER THE AUTHORITY OF THIS SUBTITLE CONSTITUTES A SEPARATE
34 OFFENSE;

14 SENATE BILL 844
1 B. EACH CALENDAR DAY THAT A VIOLATION
2 CONTINUES CONSTITUTES A SEPARATE OFFENSE;
3 C. FOR EACH OFFENSE, A PERSON SHALL BE
4 SUBJECT TO SEPARATE FINES, ORDERS, SANCTIONS, AND OTHER PENALTIES;
5 D. CIVIL PENALTIES FOR CONTINUING VIOLATIONS
6 SHALL ACCRUE WITHOUT A REQUIREMENT FOR AN ADDITIONAL ASSESSMENT,
7 NOTICE, OR OPPORTUNITY FOR HEARING FOR EACH SEPARATE OFFENSE;
8 E. ON CONSIDERATION OF ALL THE FACTORS
9 INCLUDED UNDER THIS SUBSECTION AND ANY OTHER FACTORS IN THE LOCAL
10 JURISDICTION’S APPROVED PROGRAM, THE LOCAL JURISDICTION’S CODE
11 ENFORCEMENT PERSONNEL SHALL IMPOSE THE AMOUNT OF THE PENALTY; AND
12 F. PAYMENT OF ALL CIVIL PENALTIES AND
13 CORRECTION OF THE VIOLATION SHALL BE A CONDITION PRECEDENT TO THE
14 ISSUANCE OF ANY PERMIT, APPROVAL, VARIANCE, OR SPECIAL EXCEPTION FOR
15 THE AFFECTED PROPERTY.
16 (2) In determining the amount of the penalty to be assessed under
17 paragraph [(1)(xiv)1 (1)(II)15 of this subsection, a local jurisdiction [mayl SHALL
18 consider:
19 (i) The gravity of the violation;
20 (ii) Any willfulness or negligence involved in the violation; [and]
21 (iii) The environmental impact of the violation; AND
22 (w) THE COST OF RESTORATION OF THE RESOURCE
23 AFFECTED BY THE VIOLATION AND MITIGATION FOR DAMAGE TO THAT
24 RESOURCE, INCLUDING THE COST TO THE STATE OR LOCAL AUTHORITIES FOR
25 PERFORMING, SUPERVISING, OR RENDERING ASSISTANCE TO THE
26 RESTORATION AND MITIGATION.
27 (3) REGULATIONS ADOPTED UNDER PARAGRAPH (1)(II)16 OF
28 THIS SUBSECTION SHALL PROVIDE FOR THE COMMISSION’S CONSIDERATION OF
29 ENFORCEMENT PROVISIONS SUBMITTED BY A LOCAL JURISDICTION THAT ARE
30 AT LEAST AS EFFECTIVE AS ENFORCEMENT REQUIREMENTS UNDER THIS
31 SUBTITLE AND REGULATIONS ADOPTED UNDER THE AUTHORITY OF THIS
32 SUBTITLE.

SENATE BILL 844 15
1 (d) (1) In this subsection, “unwarranted hardship” means that, without a
2 variance, an applicant would be denied reasonable and significant use of the entire
3 parcel or lot for which the variance is requested.
4 (2) (i) In considering an application for a variance, a local
5 jurisdiction shall presume that the specific development activity in the critical area
6 that is subject to the application and for which a variance is required does not conform
7 with the general purpose and intent of this subtitle, regulations adopted under this
8 subtitle, and the requirements of the local jurisdiction’s program.
9 (ii) If the variance request is based on conditions or
10 circumstances that are the result of actions by the applicant[, including the
11 commencement of development activity before an application for a variance has been
12 filed], a local jurisdiction may consider that fact.
13 (3) (i) An applicant has the burden of proof and the burden of
14 persuasion to overcome the presumption established under paragraph (2)(i) of this
15 subsection.
16 (ii) 1. Based on competent and substantial evidence, a local
17 jurisdiction shall make written findings as to whether the applicant has overcome the
18 presumption established under paragraph (2)(i) of this subsection.
19 2. With due regard for the person’s experience, technical
20 competence, and specialized knowledge, the written findings may be based on evidence
21 introduced and testimony presented by:
22 A. The applicant;
23 B. The local jurisdiction or any other government
24 agency; or
25 C. Any other person deemed appropriate by the local
26 jurisdiction.
27 (4) A variance to a local jurisdiction’s critical area program may not be
28 granted unless:
29 (i) Due to special features of a site, or special conditions or
30 circumstances peculiar to the applicant’s land or structure, a literal enforcement of the
31 critical area program would result in unwarranted hardship to the applicant;
32 (ii) The local jurisdiction finds that the applicant has satisfied
33 each one of the variance provisions; and

16 SENATE BILL 844
1 (iii) Without the variance, the applicant would be deprived of a
2 use of land or a structure permitted to others in accordance with the provisions of the
3 critical area program.
4 (5) WITHIN 10 WORKING DAYS AFTER ISSUANCE, THE
5 COMMISSION SHALL RECEIVE WRITTEN NOTICE FROM A LOCAL JURISDICTION
6 REGARDING ITS DECISION ON EACH VARIANCE APPLICATION.
7 (6) (I) A DEVELOPMENT ACTIVITY COMMENCED WITHOUT A
8 REQUIRED PERMIT, APPROVAL, VARIANCE, OR SPECIAL EXCEPTION IS A
9 VIOLATION OF THIS SUBTITLE.
10 (II) A LOCAL JURISDICTION MAY NOT ACCEPT AN
11 APPLICATION FOR A VARIANCE TO LEGALIZE A VIOLATION OF THIS SUBTITLE,
12 INCLUDING AN UNPERMITTED STRUCTURE OR DEVELOPMENT ACTIVITY,
13 UNLESS THE LOCAL JURISDICTION FIRST:
14 1. ISSUES A NOTICE OF VIOLATION, INCLUDING
15 ASSESSMENT OF AN ADMINISTRATIVE PENALTY, FOR THE VIOLATION; AND
16 2. VERIFIES, THROUGH ON-SITE INSPECTION OR
17 OTHER RELIABLE MEANS, THAT:
18 A. FULL COMPLIANCE WITH THE TERMS OF THE
19 NOTICE OF VIOLATION HAS BEEN ACHIEVED, INCLUDING PAYMENT OF ALL
20 ASSESSED FINES AND COMPLETION OF ANY REQUIRED MITIGATION; OR
21 B. A FINAL ADJUDICATION ON THE MERITS OF THE
22 NOTICE OF VIOLATION HAS DETERMINED THAT A VIOLATION HAS NOT
23 OCCURRED OR THAT THE FINAL ADJUDICATION HAS DETERMINED THAT A
24 VIOLATION DID OCCUR AND THE PERSON HAS FULLY COMPLIED WITH THE
25 TERMS OF THAT ADJUDICATION, INCLUDING FULL PAYMENT OF ANY PENALTIES
26 AND COSTS THAT MAY BE ASSESSED.
27 (III) IF THE FINAL ADJUDICATION OF A NOTICE OF
28 VIOLATION RESULTS IN A DETERMINATION THAT A VIOLATION HAS OCCURRED,
29 THE PERSON SHALL BE LIABLE FOR A PENALTY THAT IS TWICE THE AMOUNT OF
30 THE ASSESSMENT IN THE NOTICE OF VIOLATION, IN ADDITION TO THE COST OF
31 THE HEARING AND ANY APPLICABLE MITIGATION COSTS.
32 (Iv) APPLICATION FOR A VARIANCE UNDER THIS
33 PARAGRAPH CONSTITUTES A WAIVER OF THE RIGHT TO APPEAL THE TERMS OF
34 A NOTICE OF VIOLATION AND ITS FINAL ADJUDICATION, INCLUDING THE
35 PAYMENT OF ANY PENALTIES AND COSTS ASSESSED.

SENATE BILL 844 17
1
(v) IF THE LOCAL JURISDICTION FINDS THAT THE ACTIVITY
2 OR STRUCTURE FOR WHICH A VARIANCE IS REQUESTED COMMENCED WITHOUT
3 PERMITS OR APPROVALS AND:
4
1. DOES NOT MEET EACH OF THE VARIANCE
5 CRITERIA UNDER THIS SUBSECTION, THE LOCAL JURISDICTION SHALL DENY
6 THE REQUESTED VARIANCE
AND ORDER REMOVAL OR RELOCATION OF ANY
7 STRUCTURE AND RESTORATION OF THE AFFECTED RESOURCES; OR
8
2. DOES MEET EACH OF THE VARIANCE CRITERIA
9 UNDER THIS SUBSECTION, THE LOCAL JURISDICTION
MAY GRANT PROPOSED
10 APPROVAL TO
THE REQUESTED VARIANCE.
11 (VI)
1. WITHIN 10 WORKING DAYS AFTER ISSUANCE OF A
12 PROPOSED APPROVAL OF A VARIANCE UNDER SUBPARAGRAPH (V)2 OF THIS
13 PARAGRAPH, THE LOCAL JURISDICTION SHALL SUBMIT
THE PROPOSED
14 APPROVAL TO THE COMMISSION FOR THE COMMISSION’S REVIEW AND FINAL
15 APPROVAL.
16
2. THE COMMISSION SHALL REVIEW AND ISSUE A
17 FINAL DECISION ON A PROPOSED LOCAL APPROVAL IN ACCORDANCE WITH
18 PROCEDURES ESTABLISHED IN REGULATIONS ADOPTED BY THE CO1VrvIISSION.
19
[(5)1 (7) This subsection does not apply to building permits or
20 activities that comply with a buffer exemption plan or buffer management plan of a
21 local jurisdiction which has been approved by the Commission.
22 [(6)1 (8) Notwithstanding any provision of a local law or ordinance,
23 or the lack of a provision in a local law or ordinance, all of the provisions of this
24 subsection shall apply to, and shall be applied by, a local jurisdiction in the
25 consideration, processing, and decision on an application for a variance.
26 (e) (1) The Commission shall adopt by regulation on or before December
27 1, 1985 criteria for program development and approval, which are necessary or
28 appropriate to achieve the standards stated in subsection (b) of this section. Prior to
29 developing its criteria and also prior to adopting its criteria, the Commission shall
30 hold at least 6 regional public hearings, 1 in each of the following areas:
31 (i) Harford, Cecil, and Kent counties;
32 (ii) Queen Anne’s, Talbot, and Caroline counties;
33 (iii) Dorchester, Somerset, and Wicomico counties;
34 (iv) Baltimore City and Baltimore County;

18 SENATE BILL 844
1 (v) Charles, Calvert, and St. Mary’s counties; and
2 (vi) Anne Arundel and Prince George’s counties.
3 (2) During the hearing process, the Commission shall consult with
4 each affected local jurisdiction.
5 (3) IN ACCORDANCE WITH ITS POWERS UNDER § 8-1806(A) OF
6 THIS SUBTITLE, THE COMMISSION MAY AMEND THE CRITERIA FOR PROGRAM
7 DEVELOPMENT AND APPROVAL ADOPTED UNDER PARAGRAPH (1) OF THIS
8 SUBSECTION.
9 8—1808.1.
10 (c) (1) When locating new intensely developed or limited development
11 areas, local jurisdictions shall use the following [guidelines] STANDARDS:
12 (i) Locate a new intensely developed area in a limited
13 development area or adjacent to an existing intensely developed area;
14 (ii) Locate a new limited development area adjacent to an
15 existing limited development area or an intensely developed area;
16 (iii) Locate a new limited development area or an intensely
17 developed area in a manner that minimizes impacts to a habitat protection area as
18 defined in COMAR 27.01.09, and in an area and manner that optimizes benefits to
19 water quality;
20 (iv) Locate a new intensely developed area or a limited
21 development area in a resource conservation area at least 300 feet beyond the
22 landward edge of tidal wetlands or tidal waters, UNLESS THE LOCAL JURISDICTION
23 PROPOSES, AND THE COMMISSION APPROVES, ALTERNATIVE MEASURES FOR
24 ENHANCEMENT OF WATER QUALITY AND HABITAT THAT PROVIDE GREATER
25 BENEFITS TO THE RESOURCES;
26 (V) LOCATE NEW INTENSELY DEVELOPED AREAS IN A
27 MANNER THAT MINIMIZES THEIR IMPACTS TO THE DEFINED LAND USES OF THE
28 RESOURCE CONSERVATION AREA;
29 [(v)1 (VI) Except as provided in item [(vii)1 (VIII) of this
30 paragraph, no more than one—half of the expansion allocated in the criteria of the
31 Commission may be located in resource conservation areas;
32 [(vi)1 (VII) New intensely developed or limited development
33 areas [to be located in the resource conservation areal INVOLVING THE USE OF

20 SENATE BILL 844
1 (VI) ENVIRONMENTAL IMPACTS ASSOCIATED WITH
2 STORMWATER MANAGEMENT PRACTICES
AND STORMWATER DISCHARGES TO
3 TIDAL WATERS, TIDAL WETLANDS,
AND TRIBUTARY STREAMS;
4 (VII) ENVIRONMENTAL IMPACTS ASSOCIATED WITH
5 LOCATION IN A COASTAL
HAZARD AREA OR AN INCREASED RISK OF SEVERE
6 FLOODING ATTRIBUTABLE TO THE PROPOSED DEVELOPMENT; AND
7 (VIII) THE OVERALL SUITABILITY OF THE PROJECT SITE FOR
8 MORE INTENSE DEVELOPMENT IN A REGIONAL CONTEXT.
9 [(2)1 (3) The Commission shall ensure that the [guidelines]
10 STANDARDS AND FACTORS in [paragraph (1)1 PARAGRAPHS (1) AND (2) of this
11 subsection have been applied in a manner that is consistent with the purposes,
12 policies, goals, and provisions of this subtitle, and all criteria of the Commission.
13 (e) (2) (i) Within a resource conservation area, a local jurisdiction may
14 consider one additional dwelling unit per lot or parcel as part of a primary dwelling
15 unit for the purpose of the density calculation under this subsection if the additional
16 dwelling unit:
17 1. A. Is located within the primary dwelling unit or
18 its entire perimeter is within 100 feet of the primary dwelling unit;
19 B. Does not exceed 900 square feet in total enclosed area;
20 and
21 C. Is served by the same sewage disposal system as the
22 primary dwelling unit; or
23 2. A. Is located within the primary dwelling unit;
24 B. By its construction, does not increase the amount of
25 [impervious surface] LOT COVERAGE already attributed to the primary dwelling unit;
26 and
27 C. Is served by the same sewage disposal system as the
28 primary dwelling unit.
29 8—1808.3.
30 (a) This section applies notwithstanding:
31 (1) Any other provision of this subtitle; or
32 (2) Any criteria or guideline of the Commission adopted under this
33 subtitle.

SENATE BILL 844 21
1 (b) (1) This section controls over any other requirement concerning
2 [impervious surfaces] LOT COVERAGE limitations in limited development areas and
3 resource conservation areas in the critical area.
4 (2) (I) IN THE BUFFER, LOT COVERAGE MAY NOT EXCEED THE
5 MINIMUM AMOUNT NECESSARY FOR WATER-DEPENDENT FACILITIES.
6 (II) 1. THE PROVISIONS OF THIS SUBPARAGRAPH DO
7 NOT APPLY TO BUFFER EXEMPTION AREAS, AS ESTABLISHED UNDER AN
8 APPROVED LOCAL PROGRAM.
9
2. EXCEPT BY VARIANCE GRANTED IN ACCORDANCE
10 WITH THE PROVISIONS OF THIS SUBTITLE,
NEW NONWATER-DEPENDENT LOT
11 COVERAGE
MAY NOT OCCUR IN THE BUFFER, REGARDLESS OF THE CRITICAL
12 AREA CLASSIFICATION OR
THE SIZE OF THE PARCEL OR LOT.
13
(c) On or before December 31, 1996, a local jurisdiction shall amend its local
14 critical area protection program to meet the provisions of this section.
15 (d) (1) Except as otherwise provided in this subsection for stormwater
16 runoff, [man—made impervious surfaces arel LOT COVERAGE IS limited to 15% of a
17 parcel or lot.
18 (2) If a parcel or lot one—half acre or less in size existed on or before
19 December 1, 1985 in the Chesapeake Bay Critical Area or on or before June 1, 2002 in
20 the Atlantic Coastal Bays Critical Area, then [man—made impervious surfaces arel
21 LOT COVERAGE IS limited to 25% of the parcel or lot.
22 (3) If a parcel or lot greater than one—half acre and less than one acre
23 in size existed on or before December 1, 1985 in the Chesapeake Bay Critical Area or
24 on or before June 1, 2002 in the Atlantic Coastal Bays Critical Area, then [man—made
25 impervious surfaces arel LOT COVERAGE IS limited to 15% of the parcel or lot.
26 (4) If an individual lot one acre or less in size is part of a subdivision
27 approved after December 1, 1985 in the Chesapeake Bay Critical Area or after June 1,
28 2002 in the Atlantic Coastal Bays Critical Area, then [man—made impervious surfaces
29 of the loti LOT COVERAGE may not exceed 25% of the lot. However, the total [of the
30 impervious surfaces] LOT COVERAGE over the entire subdivision may not exceed 15%.
31
(e) This section does not apply to a trailer park that was in residential use on
32 or before December 1, 1985 in the Chesapeake Bay Critical Area or on or before June
33 1, 2002 in the Atlantic Coastal Bays Critical Area.

22 SENATE BILL 844
1 (f) A local jurisdiction may allow a property owner to exceed the [impervious
2 surfaces] LOT COVERAGE limits provided in subsection (d)(2) and (3) of this section if
3 the following conditions exist:
4 (1) [New impervious surfaces] LOT COVERAGE ASSOCIATED WITH
5 NEW DEVELOPMENT ACTVITIES on the property [havel HAS been minimized;
6 (2) For a lot or parcel one—half acre or less in size, total [impervious
7 surfaces do] LOT COVERAGE DOES not exceed [impervious surfaces] LOT COVERAGE
8 limits in subsection (d)(2) of this section by more than 25% or 500 square feet,
9 whichever is greater;
10 (3) For a lot or parcel greater than one—half acre and less than one
11 acre in size, total [impervious surfaces do]LOT COVERAGE DOES not exceed
12 [impervious surfaces] LOT COVERAGE limits in subsection (d)(3) of this section or
13 5,445 square feet, whichever is greater;
14 (4) Water quality impacts associated with runoff from [the]new
15 [impervious surfaces] DEVELOPMENT ACTVITIES, INCLUDING CLEARING AND
16 GRAIMNG ACTVITIES, THAT CONTRIBUTE TO LOT COVERAGE can be and have
17 been minimized through site design considerations or use of best management
18 practices approved by the local jurisdiction to improve water quality; and
19 (5) The property owner performs on—site mitigation as required by the
20 local jurisdiction to offset potential adverse water quality impacts from the new
21 [impervious surfaces] DEVELOPMENT ACTVITIES THAT CONTRIBUTE TO LOT
22 COVERAGE, or the property owner pays a fee to the local jurisdiction in lieu of
23 performing the on—site mitigation.
24 (g) All fees collected by a local jurisdiction under subsection (fl(S) of this
25 section must be used to fund projects that improve water quality within the critical
26 area consistent with the jurisdiction’s local critical area protection program.
27 (h) (1) IN THIS SUBSECTION, “LEGALLY DEVELOPED” MEANS THAT
28 ALL PHYSICAL IMPROVEMENTS TO A PROPERTY:
29 (I) EXISTED BEFORE COMMISSION APPROVAL OF A LOCAL
30 PROGRAM; OR
31 (II) WERE PROPERLY PERMITTED IN ACCORDANCE WITH
32 THE LOCAL PROGRAM AND POLICIES IN EFFECT AT
THE TIME OF
33 CONSTRUCTION.
34
(2) (I) A LOT OR PARCEL LEGALLY DEVELOPED IN
35 ACCORDANCE WITH A LOCAL PROGRAM’S APPLICABLE IMPERVIOUS SURFACE

SENATE BILL 844 23
1 LIMITATIONS AS OF JUNE 30, 2008 MAY BE CONSIDERED LEGALLY
2 NONCONFORMING FOR PURPOSES OF LOT COVERAGE REQUIREMENTS.
3 (II) FOR THE PURPOSE OF INCREASING LOT COVERAGE ON
4 A LOT OR PARCEL UNDER SUBPARAGRAPH (I) OF THIS PARAGRAPH, THE LOT
5 COVERAGE LIMITATIONS UNDER THIS SECTION MAY NOT BE CONSTRUED TO
6 APPLY TO A DEVELOPMENT ACTIVITY FOR WHICH:
7 1. PROJECT APPROVAL OR A BUILDING PERMIT WAS
8 ISSUED BEFORE JUNE 30, 2008; AND
9 2. CONSTRUCTION WAS INITIATED AND AN
10 INSPECTION WAS PERFORMED BY JUNE 30,2009.
11 (I) A local jurisdiction may grant a variance from the provisions of this
12 section in accordance with THE PROVISIONS OF THIS SUBTITLE, regulations adopted
13 by the Commission concerning variances as part of local program development set
14 forth in [COMAR 27.01.111 COMAR 27.01.11, and notification of project
15 applications set forth in COMAR 27.03.01.
16 8—1808. 10.
17 (A) EXCEPT AS PROVIDED UNDER SUBSECTION (C) OF THIS SECTION,
18 THE PROVISIONS OF THIS SECTION APPLY TO:
19 (1) AN APPLICATION FOR SUBDWISION WITHIN THE RESOURCE
20 CONSERVATION AREA THAT RECEIVES FINAL LOCAL APPROVAL AFTER JUNE 30,
21 2008; AND
22 (2) DEVELOPMENT WITHIN A NEWLY DESIGNATED INTENSELY
23 DEVELOPED AREA OR LIMITED DEVELOPMENT AREA THAT IS AWARDED
24 GROWTH ALLOCATION BY A LOCAL GOVERNMENT AFTER JUNE 30, 2008.
25 (B) (1) THE MINIMUM BUFFER AS DEFINED AND ESTABLISHED
26 UNDER COMAR 27.01.09.01 SHALL BE 300 FEET IN A RESOURCE
27 CONSERVATION AREA.
28 (2) ALL PROVISIONS APPLICABLE TO DEVELOPMENT ACTVITIES
29 WITHIN THE 100-FOOT BUFFER, INCLUDING THE ESTABLISHMENT OF
30 VEGETATION AND EXPANSION REQUIREMENTS, SHALL APPLY TO THE 300-FOOT
31 BUFFER.
32 (C) (1) THE 300-FOOT BUFFER MAY BE REDUCED IF:

24 SENATE BILL 844
1 (I) THE STRICT APPLICATION OF THE MINIMUM 300-FOOT
2 BUFFER WOULD PRECLUDE THE SUBDIVISION OF THE PROPERTY AT A DENSITY
3 OF
ONE DWELLING UNIT PER 20 ACRES; AND
4 (II) ALL OTHER LOCAL ZONING AND SUBDIVISION
5 REQUIREMENTS WILL BE SATISFIED.
6 (2) A REDUCTION IN THE BUFFER AUTHORIZED UNDER
7 PARAGRAPH (1) OF THIS SUBSECTION MAY NOT RESULT IN A BUFFER THAT IS
8 LESS THAN THE MINIMUM BUFFER REQUIRED BY THE LOCAL PROGRAM.
9 8—1808.11.
10 IMPROVEMENTS TO PROTECT A PERSON’S PROPERTY AGAINST EROSION
11 SHALL CONSIST OF NONSTRUCTURAL SHORELINE STABILIZATION MEASURES
12 THAT PRESERVE THE NATURAL ENVIRONMENT, SUCH AS MARSH CREATION,
13 EXCEPT IN AREAS WHERE THE PERSON CAN DEMONSTRATE TO THE
14 SATISFACTION OF THE DEPARTMENT OF ENVIRONMENT THAT THESE
15 MEASURES ARE NOT FEASIBLE.
16 8—1809.
17 (h) (1) As often as necessary but not more than 4 times per calendar year,
18 each local jurisdiction may propose program amendments and program refinements to
19 its adopted program.
20 (2) (i) 1. Except for program amendments or program
21 refinements developed during program review under subsection (g) of this section, a
22 [zoning] CRITICAL AREA map amendment may be [granted] PROPOSED TO THE
23 CRITICAL AREA COMMISSION by a local [approving authority] JURISDICTION only
24 on proof of a mistake in the existing [zoning] CRITICAL AREA CLASSIFICATION.
25 2. THE COMMISSION SHALL:
26 A. CONSIDER THE LOCAL JURISDICTION’S
27 DETERMINATION OF MISTAKE IN THE EXISTING CRITICAL AREA
28 CLASSIFICATION; AND
29 B. DETERMINE WHETHER THAT PROPOSED
30 CORRECTION OF MISTAKE IS CONSISTENT WITH THE PURPOSES, POLICIES,
31 GOALS, AND PROVISIONS OF THIS SUBTITLE AND ALL CRITERIA OF THE
32 COMMISSION.
33 (ii) The requirement in [paragraph (2)(i) of this subsectioni
34 SUBPARAGRAPH (I) OF THIS PARAGRAPH that a [zoningi] CRITICAL AREA map

SENATE BILL 844 25
1 amendment may be granted only on proof of a mistake does not apply to proposed
2 changes to a [zoningi CRITICAL AREA map that:
3 1. Are wholly consistent with the land classifications in
4 the adopted program; or
5 2. Propose the use of a part of the remaining growth
6 allocation in accordance with the adopted program.
7 (o) (1) For proposed program amendments, a Commission panel shall
8 hold a public hearing in the local jurisdiction, and the Commission shall act on the
9 proposed program amendment within [90] 130 days of the Commission’s acceptance of
10 the proposal. If action by the Commission is not taken within [901 130 days, the
11 proposed program amendment is deemed approved.
12 8—1811.
13 (b) (2) From the date designated by the Commission in approving or
14 adopting a program, an applicant for project approval or the local agency authorized to
15 grant project approval on an application in any of the identified classes shall send to
16 the Commission in accordance with the regulations and any other instructions of the
17 Commission, a copy of every pending or new application for approval that is in any of
18 the identified classes. Before the close of the [nexti FIFTH business day after receipt of
19 a copy of an application from the applicant or the local approving authority, the
20 Commission shall send written notice of receipt to the applicant and to the local
21 approving authority. A failure of the Commission to send a timely notice shall render
22 paragraph (3) of this subsection inapplicable as to that application.
23 8—1815.
24 (a) (1) (I) A LOCAL AUTHORITY MAY OBTAIN ACCESS TO AND
25 ENTER A PROPERTY IN ORDER TO IDENTIFY OR VERIFY A SUSPECTED
26 VIOLATION, RESTRAIN A DEVELOPMENT ACT IVITY, OR ISSUE A CITATION IF THE
27 LOCAL AUTHORITY HAS REASONABLE CAUSE TO BELIEVE THAT A VIOLATION OF
28 THIS SUBTITLE OR THE LOCAL PROGRAM HAS OCCURRED, IS OCCURRING, OR
29 WILL OCCUR.
30 (II) A LOCAL AUTHORITY SHALL MAKE A REASONABLE
31 EFFORT TO CONTACT A PROPERTY OWNER BEFORE OBTAINING ACCESS TO OR
32 ENTERING THE PROPERTY, BUT FAILURE TO CONTACT THE OWNER
MAY NOT
33 PREVENT THE LOCAL AUTHORITY FROM OBTAINING ACCESS TO OR ENTERING
34 THE PROPERTY TO PURSUE ENFORCEMENT ACTION.
35 (III)
1. A LOCAL AUTHORITY THAT IDENTIFIES A
36 VIOLATION OF THIS SUBTITLE OR OF THE LOCAL PROGRAM SHALL
TAKE
37 ENFORCEMENT ACTION.

26 SENATE BILL 844
1 2. THE LOCAL AUTHORITY SHALL REQUIRE
2 APPROPRIATE RESTORATION AND MITIGATION AS NECESSARY TO OFFSET
3 ADVERSE IMPACTS TO THE CRITICAL AREA RESULTING FROM THE VIOLATION.
4 3. A. FOR RESTORATION OR MITIGATION THAT
5 EXCEEDS 1,000 SQUARE FEET OR INVOLVES EXPENSES EXCEEDING $1,000, THE
6 LOCAL AUTHORITY SHALL COLLECT A BOND OR OTHER FINANCIAL SECURITY OR
7 ADOPT APPROPRIATE PROCEDURES TO ENSURE THAT THE RESTORATION OR
8 MITIGATION IS PROPERLY COMPLETED.
9 B. IF THE RESTORATION OR MITIGATION INVOLVES
10 PLANTING, THE BOND SHALL BE HELD FOR AT LEAST 2 YEARS AFTER THE DATE
11 THE PLANTINGS WERE INSTALLED TO ENSURE PLANT SURVIVAL.
12 C. ON REQUEST OF THE PROPERTY OWNER, THE
13 LOCAL AUTHORITY SHALL SCHEDULE INSPECTIONS AS NECESSARY TO ENSURE
14 COMPLIANCE AND THE RETURN OF THE BOND OR OTHER FINANCIAL SECURITY.
15 (2) (I) [Violators of the provisions of programs approved or adopted
16 by the Commissioni A PERSON WHO VIOLATES A PROVISION OF AN ORDER,
17 PERMIT, PLAN, LOCAL PROGRAM, THIS SUBTITLE, OR REGULATIONS ADOPTED,
18 APPROVED, OR ISSUED UNDER THE AUTHORITY OF THIS SUBTITLE shall be
19 subject to prosecution or suit by THE CHAIRMAN OR local authorities, who may
20 invoke the sanctions and remedies afforded by State or local law.
21 (II) A CRIMINAL PROSECUTION OR A SUIT FOR A CWIL
22 PENALTY FOR VIOLATION OF A PROVISION OF AN ORDER, PERMIT, PLAN, LOCAL
23 PROGRAM, THIS SUBTITLE, OR REGULATIONS ADOPTED, APPROVED, OR ISSUED
24 UNDER THE AUTHORITY OF THIS SUBTITLE SHALL BE INSTITUTED WITHIN 3
25 YEARS AFTER THE COMMISSION OR THE LOCAL AUTHORITIES IN FACT KNEW OR
26 REASONABLY SHOULD HAVE KNOWN OF THE VIOLATION.
27 [(2)1 (3) A local authority may request:
28 (i) Assistance from the Commission in an enforcement action;
29 or
30 (ii) That the chairman refer an enforcement action to the
31 Attorney General.
32 8—1815.1.
33 (b) If a person cuts or clears or plans to cut or clear trees within the
34 Chesapeake Bay Critical Area or Atlantic Coastal Bays Critical Area in violation of an

SENATE BILL 844 27
1 approved local critical area program or of regulations adopted by the Commission,
2 THE CHAIRMAN MAY BRING AN ACTION, OR the local jurisdiction may bring an
3 action or request that the chairman of the Commission refer the matter to the
4 Attorney General to bring an action:
5 (1) To require the person to replant trees where the cutting or clearing
6 occurred in accordance with a plan prepared by the State Forester, a registered
7 professional forester, or a registered landscape architect;
8 (2) To restrain the planned violation; or
9 (3) For damages:
10 (i) To be assessed by a circuit court in an amount equal to the
11 estimated cost of replanting trees; and
12 (ii) To be paid to the Department by the person found to have
13 violated the provisions of this subsection.
14 SECTION 2. AND BE IT FURTHER ENACTED, That the Laws of Maryland
15 read as follows:
16 Article — Natural Resources
17 8—1807.
18 (a) The initial planning area for determination of the Chesapeake Bay
19 Critical Area consists of:
20 (1) All waters of and lands under the Chesapeake Bay and its
21 tributaries to the head of tide as indicated on the “MD IMAP” State [wetlands mapsi
22 BASE MAP, and all State and private wetlands designated under Title 16 of the
23 Environment Article; and
24 (2) All land and water areas within 1,000 feet beyond the landward
25 boundaries of State or private wetlands and the heads of tides designated under Title
26 16 of the Environment Article.
27 (b) The initial planning area for determination of the Atlantic Coastal Bays
28 Critical Area consists of:
29 (1) All waters of and lands under the coastal bays and their tributaries
30 to the head of tide as indicated on the “MD IMAP” State [wetlands mapsi BASE
31 MAP, and all State and private wetlands designated under Title 16 of the
32 Environment Article; and

28 SENATE BILL 844
1 (2) All land and water areas within 1,000 feet beyond the landward
2 boundaries of State or private wetlands and the heads of tides designated under Title
3 16 of the Environment Article.
4 SECTION 3. AND BE IT FURTHER ENACTED, That:
5 (1) The Department of Natural Resources shall prepare a State Base
6 Map that includes a State determined shoreline and edge of tidal wetlands and a
7 digitally generated 1,000—foot Critical Area Boundary overlaid on aerial imagery
8 obtained in 2007 and 2008 as part of the “MD iMap” State Base Map project. Within
9 30 days of the date of official completion of the “MD iMap” State Base Map project,
10 which shall include distribution of the Base Map by the Department of Natural
11 Resources to each local jurisdiction with an approved Critical Area program, the
12 Department shall notify the Critical Area Commission for the Chesapeake and
13 Atlantic Coastal Bays in writing regarding the applicable date of project completion.
14 (2) Following receipt of notice from the Department, and where
15 practical as part of the required 6—year comprehensive review process, the
16 Commission shall notify each local jurisdiction with an approved Critical Area
17 program in writing regarding the effective date of project completion and the
18 requirement to adopt an amended Critical Area Map based on the “MD iMap” State
19 Base Map project within 24 months.
20 (3) In accordance with notification from the Commission, each local
21 jurisdiction, with assistance from the Critical Area Commission and the Department
22 of Natural Resources as appropriate, shall review and refine the “MD iMap” State
23 Base Maps prepared by the Department of Natural Resources. This process will be
24 used to:
25 (i) verify the boundaries of the existing Critical Area
26 designations;
27 (ii) appropriately designate unclassified areas that were not
28 within the original Critical Area boundary in accordance with the mapping standards
29 set forth in COMAR 27.01.02.03 through 27.01.02.05 and as further determined
30 through regulations developed by the Commission; and
31 (iii) identify areas where there appear to be inconsistencies
32 between the “MD iMap” State Base Maps and local Critical Area Maps.
33 (4) Following resolution of any inconsistencies and as appropriate to
34 its form of government and in conformance with all applicable requirements, each
35 jurisdiction with an approved Critical Area program shall formally amend its program
36 by adopting the “MD iMap” State Base Map for that jurisdiction, including shoreline
37 and edge of tidal wetlands, the 1,000—foot Critical Area Boundary, and all applicable
38 Critical Area designations.

SENATE BILL 844 29
1 (5) In accordance with regulations adopted by the Critical Area
2 Commission in coordination with the Department of Natural Resources:
3 (i) the State Base Map, including the State—determined
4 shoreline and edge of tidal wetlands and a digitally generated 1,000—foot Critical Area
5 boundary, shall be periodically updated, at least once every 12 years, starting with the
6 date specified under paragraph (1) of this section; and
7 (ii) as part of the required 6—year comprehensive review of the
8 local Critical Area program, each local government shall formally amend its Critical
9 Area Maps to reflect the State—determined shoreline and edge of tidal wetlands and a
10 digitally generated 1,000—foot Critical Area boundary as shown on the current “MD
11 iMap” State Base Map in effect at that time.
12 SECTION 4. AND BE IT FURTHER ENACTED, That the provisions of Section
13 2 of this Act shall take effect 24 months after the date of official completion of the “MD
14 iMap” State Base Map project, as specified under Section 3(1) of this Act.
15 SECTION 5. AND BE IT FURTHER ENACTED, That for the purpose of a new
16 subdivision, this Act may not be construed to apply to a property for which:
17 (1) an initial application for subdivision was submitted before January
18 1, 2008; and
19 (2) a final plat is recorded by December 31, 2008.
20 SECTION 6. AND BE IT FURTHER ENACTED, That each local jurisdiction
21 with an approved Critical Area program shall report to the Critical Area Commission
22 by January 1, 2009 regarding its proposed procedures for notice of Critical Area
23 project approval under § 8—1808(cXl)(ii)4 of the Natural Resources Article, as enacted
24 under Section 1 of this Act.
25 SECTION 7. AND BE IT FURTHER ENACTED, That, subject to the provisions
26 of Section 4 of this Act, this Act shall take effect July 1, 2008.