The General Assembly finds and declares that:
The Chesapeake and the Atlantic Coastal Bays and their tributaries are natural resources of great significance to the State and the nation, and their beauty, their ecological value, and their economic impact all reach far beyond any one local jurisdiction;
The shoreline and adjacent lands, particularly the buffer areas, constitute a valuable, fragile, and sensitive part of this estuarine system, where human activity can have a particularly immediate and adverse impact on water quality and natural habitats;
The capacity of these shoreline and adjacent lands to withstand continuing demands, including climate change, without further degradation to water quality and natural habitats is limited;
Human activity is harmful in these shoreline areas, where the new development of nonwater–dependent structures and uses or an increase in lot coverage is presumed to be contrary to the purpose of this subtitle, because these activities may cause or amplify adverse impacts, of both an immediate and a long–term nature, to the Chesapeake and the 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;
National studies have documented that the quality and productivity of the waters of the Chesapeake Bay and its tributaries have declined due to the cumulative effects of human activity that have caused increased levels of pollutants, nutrients, and toxics in the Bay system and declines in more protective land uses such as forestland and agricultural land in the Bay region;
Those portions of the Chesapeake and the Atlantic Coastal Bays and their tributaries within Maryland are particularly stressed by the continuing population growth and development activity concentrated in the Baltimore–Washington metropolitan corridor and along the Atlantic Coast;
The quality of life for the citizens of Maryland is enhanced through the restoration of the quality and productivity of the waters of the Chesapeake and the Atlantic Coastal Bays and their tributaries in a manner in which burdens and benefits are distributed equitably;
The restoration of the Chesapeake and the Atlantic Coastal Bays and their tributaries is dependent, in part, on minimizing further adverse impacts to the water quality and natural habitats of the shoreline and adjacent lands, and enhancing the natural resources in the Critical Area, particularly in the buffer;
The cumulative impact of current development and of each new development activity in the buffer is inimical to these purposes, and it is therefore imperative that State law protect irreplaceable State buffer resources from unpermitted activity;
There is a critical and substantial State interest for the benefit of current and future generations in fostering more sensitive development and more effective enforcement in a consistent and uniform manner 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;
There is a critical and substantial State interest in developing policies and strategies to better mitigate, prepare for, and adapt to the consequences of climate change along the State’s shorelines, including sea level rise, storm surge, precipitation–induced flooding, and other extreme weather events and to enhance the resilience of the State’s shorelines by identifying, restoring, creating, and conserving existing natural and nature–based features;
There is a critical and substantial State interest in ensuring the equitable distribution of the benefits and burdens of development, restoration, mitigation, and conservation along the State’s shorelines and in ensuring equitable representation and participation in these processes; and
The inclusion of incentive–based programs to ensure development is compatible with projected climate impacts and coastal hazards is vital to the State’s goal of addressing climate resiliency.
It is the purpose of the General Assembly in enacting this subtitle:
To establish 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; and
To implement the Resource Protection Program on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent, uniform, and equitable manner subject to State and local leadership, criteria, and oversight.
In this subtitle the following words have the meanings indicated.
“Adjacent” means, with respect to areas with different land classifications:
Sharing a common boundary line; or
Separated by a public or private street, road, right–of–way, or other utility or access easement.
“Atlantic Coastal Bays” means the Assawoman, Isle of Wight, Sinepuxent, Newport, and Chincoteague Bays.
“Atlantic Coastal Bays Critical Area” means the initial planning area identified under § 8–1807 of this subtitle.
“Buffer” means an existing, naturally vegetated area, or an area established in vegetation and managed to protect aquatic, wetlands, shoreline, and terrestrial environments from manmade disturbances.
“Chesapeake Bay Critical Area” means the initial planning area identified under § 8–1807 of this subtitle.
“Climate resiliency” means the capacity of a natural system to maintain function in the face of stresses imposed by climate change.
“Climate resiliency” includes adapting a natural system to be better prepared for future climate impacts including sea level rise, saltwater intrusion, wetland migration, storm surge, precipitation–induced flooding, and other extreme weather events.
“Commission” means the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays established in this subtitle.
“Critical Area” means the Chesapeake Bay Critical Area and the Atlantic Coastal Bays Critical Area.
“Developer” means:
A person who undertakes development as defined in this section; or
A person who undertakes development activities as defined in the criteria of the Commission.
“Development” means any activity that materially affects the condition or use of dry land, land under water, or any structure.
“Dwelling unit” means a single unit providing complete, independent living facilities for at least one person, including provisions for sanitation, cooking, eating, sleeping, and other activities routinely associated with daily life.
“Dwelling unit” includes a living quarters for a domestic or other employee or tenant, an in–law or accessory apartment, a guest house, or a caretaker residence.
“Environmental justice” has the meaning stated in § 1–701 of the Environment Article.
“Equity” means promotion of justice, impartiality, and fairness within the procedures, processes, and distribution of resources by institutions or systems.
“Equity” includes consideration of environmental burdens and benefits, identification of impacts and mitigation opportunities, increased representation in public participation, and provisions for public access to waterways.
“Growth allocation” means the number of acres of land in the Chesapeake Bay Critical Area or Atlantic Coastal Bays Critical Area that a local jurisdiction may use to create new intensely developed areas and new limited development areas.
“Includes” means includes or including by way of illustration and not by way of limitation.
“Intensely developed area” means an area of at least 20 acres or the entire upland portion of the critical area within a municipal corporation, whichever is less, where:
Residential, commercial, institutional, or industrial developed land uses predominate; and
A relatively small amount of natural habitat occurs.
“Intensely developed area” includes:
An area with a housing density of at least four dwelling units per acre;
An area with public water and sewer systems with a housing density of more than three dwelling units per acre; or
A commercial marina redesignated by a local jurisdiction from a resource conservation area or limited development area to an intensely developed area through a mapping correction that occurred before January 1, 2006.
“Land classification” means the designation of land in the Chesapeake Bay Critical Area or Atlantic Coastal Bays Critical Area in accordance with the criteria adopted by the Commission as an intensely developed area or district, a limited development area or district, or a resource conservation area or district.
“Limited development area” means an area:
That is developed in low or moderate intensity uses and contains areas of natural plant and animal habitat; and
Where the quality of runoff has not been substantially altered or impaired.
“Limited development area” includes an area:
With a housing density ranging from one dwelling unit per five acres up to four dwelling units per acre;
With a public water or sewer system;
That is not dominated by agricultural land, wetland, forests, barren land, surface water, or open space; or
That is less than 20 acres and otherwise qualifies as an intensely developed area under paragraph (17) of this subsection.
“Local jurisdiction” means a county, or a municipal corporation with planning and zoning powers, in which any part of the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area, as defined in this subtitle, is located.
“Lot coverage” means the percentage of a total lot or parcel that is:
Occupied by a structure, accessory structure, parking area, driveway, walkway, or roadway; or
Covered with gravel, stone, shell, decking, a paver, permeable pavement, or any manmade material.
“Lot coverage” includes the ground area covered or occupied by a stairway or impermeable deck.
“Lot coverage” does not include:
A fence or wall that is less than 1 foot in width that has not been constructed with a footer;
A walkway in the buffer or expanded buffer, including a stairway, that provides direct access to a community or private pier;
A wood mulch pathway; or
A permeable deck.
“Natural features” means components and processes present in or produced by nature, including soil types, geology, slopes, vegetation, surface water, drainage patterns, aquifers, recharge areas, climate, floodplains, aquatic life, and wildlife.
“Nature–based features” means those small–scale nonstructural features that mimic characteristics of natural features and are created by human design, engineering, and construction to provide specific services, including coastal risk reduction.
“Nature–based features” includes living shorelines, oyster reefs, marsh restoration, and buffers.
“Overburdened community” has the meaning stated in § 1–701 of the Environment Article.
“Program” means the critical area protection program of a local jurisdiction.
“Program” includes any amendments to the program.
“Program amendment” means any change or proposed change to an adopted program that is not determined by the Commission chair to be a program refinement.
“Program amendment” includes a change to a zoning map that is not consistent with the method for using the growth allocation contained in an adopted program.
“Program refinement” means any change or proposed change to an adopted program that the Commission chair determines will result in a use of land or water in the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area in a manner consistent with the adopted program, or that will not significantly affect the use of land or water in the critical area.
“Program refinement” may include:
A change to an adopted program that results from State law;
A change to an adopted program that affects local processes and procedures;
A change to a local ordinance or code that clarifies an existing provision; and
A minor change to an element of an adopted program that is clearly consistent with the provisions of this subtitle and all of the criteria of the Commission.
“Project approval” means the approval of development, other than development by a State or local government agency, in the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area by the appropriate local approval authority.
“Project approval” includes:
Approval of preliminary and final subdivision plats and site plans;
Inclusion of areas within floating zones;
Issuance of variances, special exceptions, and conditional use permits; and
Approval of rezoning.
“Project approval” does not include building permits.
“Resource conservation area” means an area that is characterized by:
Nature dominated environments, such as wetlands, surface water, forests, and open space; and
Resource–based activities, such as agriculture, forestry, fisheries, or aquaculture.
“Resource conservation area” includes an area with a housing density of less than one dwelling per five acres.
“Tributary stream” means a perennial stream or an intermittent stream within the critical area that has been identified by site inspection or in accordance with local program procedures approved by the Commission.
“Underrepresented community” has the meaning stated in § 19–106 of the Business Regulation Article.
“Underserved community” has the meaning stated in § 1–701 of the Environment Article.
Wherever this subtitle requires Prince George’s County to exercise any power or authority Prince George’s County shares with the Maryland–National Capital Park and Planning Commission, the obligation imposed by this subtitle rests on both the county and the Maryland–National Capital Park and Planning Commission in accordance with their respective powers and authorities.
There is a Critical Area Commission for the Chesapeake and Atlantic Coastal Bays in the Department.
The Secretary has no authority under Title 1 of this article:
To approve, alter, or amend the policies or programs of the Commission;
To transfer, assign, or reassign statutory functions or activities to or from the Commission; or
To adopt, approve, or revise regulations of the Commission.
The Commission consists of 29 voting members who reflect the diversity of the State and are appointed by the Governor, as follows:
A full–time chair, appointed with the advice and consent of the Senate, who shall serve at the pleasure of the Governor;
13 individuals, appointed with the advice and consent of the Senate, each of whom is a resident and an elected or appointed official of a local jurisdiction. At least 1 of these 13 individuals must be an elected or appointed official of a municipality. These individuals shall serve on the Commission only while they hold local office. Each shall be selected from certain counties or from municipalities within the counties as follows, and only after the Governor has consulted with elected county and municipal officials:
1 from each of Baltimore City and Anne Arundel, Baltimore, and Prince George’s counties;
1 from Harford County or Cecil County;
1 from Kent County or Queen Anne’s County;
1 from Caroline County;
1 from Talbot County or Dorchester County;
1 from Wicomico County or Somerset County;
2 from Calvert County, Charles County, or St. Mary’s County, both of whom may not be from the same county; and
2 from Worcester County, 1 of whom shall be a resident of the Chesapeake Bay Watershed and the other of whom shall be a resident of the Atlantic Coastal Bays Watershed;
8 individuals, appointed with the advice and consent of the Senate, who shall represent diverse interests, including underrepresented communities, and among whom shall be a resident from each of the 5 counties that are listed and from which an appointment has not been made under item (ii) of this paragraph and 3 of the 8 members appointed under this item shall be at large members, 1 of whom shall be a private citizen and resident of the Atlantic Coastal Bays Watershed; and
The Secretaries of Agriculture, Commerce, Housing and Community Development, the Environment, Transportation, Natural Resources, and Planning, ex officio, or the designee of the Secretaries.
Of the 2 Worcester County members from the Atlantic Coastal Bays Watershed, 1 shall be the Mayor of Ocean City or the designee of the Mayor.
Notwithstanding paragraph (1) of this subsection, a member from the Atlantic Coastal Bays Watershed who is the Mayor of Ocean City or the designee of the Mayor is not subject to the advice and consent of the Senate.
A member of the Commission who does not hold another office of profit at the State or local level shall be entitled to compensation as provided in the budget. Members of the Commission shall be entitled to reimbursement for expenses as provided in the budget.
Except for the chair and ex officio State officers or their representatives:
The term of a member is 4 years;
The terms of members are staggered as required by the terms provided for members of the Commission on July 1, 1984;
At the end of a term, a member continues to serve until a successor is appointed and qualifies;
A member who is appointed after a term is begun serves for the rest of the term and until a successor is appointed and qualifies;
A member may serve no more than 2 terms; and
Any member of the Commission appointed by the Governor who shall fail to attend at least 60% of the meetings of the Commission during any period of 12 consecutive months shall be considered to have resigned, and the chair shall forward the member’s name to the Governor, not later than January 15 of the year following the nonattendance with the statement of the nonattendance, and the Governor shall appoint a successor for the remainder of the term. If the member has been unable to attend meetings as required by this subtitle for reasons satisfactory to the Governor, the Governor may waive the resignation if the reasons are made public.
If a vacancy arises other than by the expiration of a term, the Governor shall appoint within 30 days, with the advice and consent of the Senate, a successor of like qualification to serve the remainder of the term.
A quorum of the Commission consists of 1 member more than a majority of the full authorized membership of the Commission.
A quorum of a panel of the Commission consists of 3 members.
The Commission or a panel of the Commission may not hold a public hearing unless a quorum is present.
The Commission or a panel of the Commission may not take any official action unless:
A quorum is present; and
A majority of the members who are present and eligible to vote concur in or vote for the action.
The Commission shall have the staff provided for in the State budget.
The staff assigned to the Coastal Zone Management Program in the Department shall assist the Commission in the development of regulations and the review of programs.
The State departments represented on the Commission may lend staff or other assistance to the Commission.
The chair with the approval of the Commission shall appoint an Executive Director for the Commission.
The Executive Director serves at the pleasure of the chair and is entitled to the salary provided in the State budget.
The Executive Director shall direct the staff of the Commission.
The Attorney General shall designate an assistant Attorney General to advise and represent the chair and the Commission.
The Commission has all powers necessary for carrying out the purposes of this subtitle, including the following:
In accordance with Title 2, Subtitle 5 (Joint Committee on Administrative, Executive and Legislative Review) and Title 10, Subtitle 1 (Administrative Procedure Act) of the State Government Article, to adopt and amend regulations by affirmative vote of the Commission and as authorized under this subtitle for the administration and enforcement of the State and local programs;
To conduct hearings in connection with policies, proposed programs, and proposed regulations or amendments to regulations; and
To contract for consultant or other services.
Regulations adopted or amended under subsection (a)(1) of this section shall:
Establish comprehensive standards and procedures for:
Buffer establishment, maintenance, measurement, mitigation, and enforcement;
Modified buffer areas;
Impacts of shoreline stabilization activities on the buffer;
Community piers;
Commercial marinas;
Water dependent facilities;
Public water access;
The protection and conservation of the buffer as a State water quality and habitat resource essential to the restoration of the Chesapeake and Atlantic Coastal Bays;
Mapping the critical area, with respect to revision of the 1,000–foot boundary and voluntary additions of property to the critical area;
Development in the critical area, with respect to:
Clearing, grading, and construction activity;
Clustering to promote conservation of natural site features;
The transfer of development rights;
Flexibility for redevelopment;
Stormwater management;
Application of the 10% pollutant reduction rule;
Forest and developed woodlands protections;
Clearing of natural vegetation;
Lot coverage standards;
Commission review of local provisions for lot consolidation; and
The exclusion of State tidal wetlands from calculations of density, forest and developed woodlands protections, limitations on clearing natural vegetation, and lot coverage standards;
Consistent enforcement of State and local critical area law, with respect to the establishment of minimum penalties and mitigation requirements;
Growth allocation applications, with respect to:
The deduction of growth allocation acreage;
Commission review and determinations;
Accommodation of variations among local jurisdictions concerning land uses in the resource conservation area that do not require growth allocation;
The location of septic systems;
Golf courses; and
The Commission’s evaluation of a local jurisdiction’s use of cluster development under § 8–1808.1 of this subtitle;
In consultation with appropriate State and federal agencies, the conservation and protection of:
Habitat protection areas;
Threatened and endangered species;
Species in need of conservation;
Forest interior dwelling birds;
Anadromous fish propagation waters; and
Plant and wildlife habitat;
Directives for local program development and implementation, with respect to:
Notification of project applications;
The 10–year comprehensive review of a local critical area program;
For a State or local government development activity:
Public notice, including notice to be published in a newspaper of general circulation in the area where the proposed development activity would occur; and
An opportunity for public comment in the local jurisdiction in which the proposed development activity would be located;
Reporting requirements, including accounting of fee in lieu funds;
The submission and processing of a proposed program amendment or refinement; and
Provisions applicable to areas requested for exclusion from the critical area;
In consultation with the Department of the Environment, surface mining in the critical area;
The application for and processing of a variance, with respect to:
Amending a variance application;
Advance notice to the Commission;
The contents of a complete variance application;
Ensuring that Commission recommendations are made part of the variance record;
The use of variance standards; and
Notice of a variance decision;
Assessing and adapting the critical area for climate resiliency;
Enhancing the resilience of the critical area by protecting, creating, and restoring natural and nature–based features; and
Environmental justice and equity initiatives that:
Address disparate impacts of development; and
Ensure the benefits of development, restoration, mitigation, and conservation are shared equitably; and
Provide flexibility wherever possible in order to accommodate variations among local programs.
The initial planning area for determination of the Chesapeake Bay Critical Area consists of:
All waters of and lands under the Chesapeake Bay and its tributaries to the head of tide as indicated on the State wetlands maps, and all State and private wetlands designated under Title 16 of the Environment Article; and
All land and water areas within 1,000 feet beyond the landward boundaries of State or private wetlands and the heads of tides designated under Title 16 of the Environment Article.
The initial planning area for determination of the Atlantic Coastal Bays Critical Area consists of:
All waters of and lands under the coastal bays and their tributaries to the head of tide as indicated on the State wetlands maps, and all State and private wetlands designated under Title 16 of the Environment Article; and
All land and water areas within 1,000 feet beyond the landward boundaries of State or private wetlands and the heads of tides designated under Title 16 of the Environment Article.
In determining the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area within its boundaries, a local jurisdiction may exclude those portions of the planning area designated in subsection (a) or (b) of this section which the local jurisdiction finds to be:
Part of a developed, urban area in which, in view of available public facilities and applicable laws and restrictions, the imposition of a program would not substantially improve protection of tidal water quality or conservation of fish, wildlife, or plant habitats; or
Located at least 1,000 feet from open water and separated from open water by an area of wetlands which it is found will serve to protect tidal water quality and fish, wildlife, or plant habitats from adverse impacts of development in the excluded area.
A portion of urban area to be excluded shall be at least 50% developed and may not be less than 2,640,000 square feet in contiguous area or the entire initial planning area located within the boundaries of a municipality, whichever is less.
A local jurisdiction shall include in any program submitted to the Commission under § 8–1809 of this subtitle a designation of those portions of the Chesapeake Bay Critical Area or Atlantic Coastal Bays Critical Area proposed for exclusion under paragraph (1) of this subsection, together with all factual information and expert opinion supporting its findings under this subsection.
The Commission shall approve a local jurisdiction’s designation of portions to be excluded unless the Commission finds, based on stated reasons, that the decision of the local jurisdiction was:
Not supported by competent and material evidence; or
Arbitrary or capricious.
If the Commission develops the program to be applied in a local jurisdiction, the Commission shall exclude areas as appropriate to meet the intent of paragraph (1) of this subsection.
The Chesapeake Bay Critical Area shall consist of:
Those areas designated in subsection (a) of this section, except any areas excluded in accordance with subsection (c) of this section; and
Additional areas proposed for inclusion by local jurisdictions and approved by the Commission.
The Atlantic Coastal Bays Critical Area shall consist of:
Those areas designated in subsection (b) of this section, except any areas excluded in accordance with subsection (c) of this section; and
Additional areas proposed for inclusion by local jurisdictions and approved by the Commission.
It is the intent of this subtitle that each local jurisdiction shall have primary responsibility for developing and implementing a program, subject to review and approval by the Commission.
The Governor shall include in the budget annually a sum of money to be used for grants to assist local jurisdictions with the reasonable costs of implementing and updating a program under this section. Each local jurisdiction shall submit to the Governor by May 1 of each year a detailed request for funds to assist in the implementation and updating of a program under this section.
For each fiscal year, the Governor shall include in the annual budget bill an appropriation to provide grants to assist local jurisdictions to incorporate climate and equity provisions required under subsection (c)(1)(iii)16 and 17 of this section into an updated local program.
By May 1 of each year, a local jurisdiction shall submit to the Commission a detailed request for funding under this paragraph.
On the request of a local jurisdiction, the chair may extend the deadline under subparagraph (ii) of this paragraph.
A program shall consist of those elements which are necessary or appropriate to:
Minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have run off from surrounding lands;
Conserve fish, wildlife, and plant habitat;
Establish land use policies for development in the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area which accommodate growth and also address the fact that, even if pollution is controlled, the number, movement, and activities of persons in that area can create adverse environmental impacts;
Reduce vulnerability to the impacts of climate change and incorporate measures to improve the climate resiliency of the Chesapeake and Atlantic Coastal Bays and its tributaries; and
Ensure an equitable distribution of the burdens and benefits of development, mitigation, restoration, conservation, and adaptation to climate change within the critical area.
Notwithstanding any provision in a local law or ordinance, or the lack of a provision in a local law or ordinance, all of the requirements of this subtitle shall apply to, and be applied by, a local jurisdiction as minimum standards for a program sufficient to meet the goals of the Critical Area Program.
With the approval of the Commission, a local jurisdiction may establish procedures for the granting of an administrative variance.
At a minimum, a program shall contain all of the following elements, including:
A map designating the critical area in a local jurisdiction;
A comprehensive zoning map for the critical area;
As necessary, new or amended provisions of the jurisdiction’s:
Subdivision regulations;
Comprehensive or master plan;
Ordinances or regulations that affect development in the critical area;
Provisions relating to enforcement; and
Provisions as appropriate relating to development rights that predate the program as adopted or approved by the Commission, including provisions for bringing lands into conformance with the Program as required under item 12 of this subparagraph;
Provisions requiring that:
Project approvals shall be based on findings that projects are consistent with the standards stated in subsection (b) of this section; and
The Commission shall receive written notice of local decisions regarding project approvals or denials in accordance with local procedures approved by the Commission;
Provisions to limit lot coverage and to require or encourage cluster development, where necessary or appropriate;
Establishment of buffer areas along shorelines within which agriculture will be permitted only if an agricultural best management practice is used, provided that structures or any other use of land which is necessary for adjacent agriculture shall also be permitted in any buffer area;
Requirements for minimum setbacks for structures and septic fields along shorelines, including the establishment of a minimum buffer landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands;
Assessment and mapping of shoreline areas, if any, that are suitable for parks, hiking, biking, wildlife refuges, scenic drives, public access or assembly, and water–related recreation such as boat slips, piers, and beaches, with consideration given to underserved communities;
Designation of shoreline areas, if any, that are suitable for ports, marinas, and industries that use water for transportation or derive economic benefits from shore access;
Provisions requiring that all harvesting of timber in the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area be in accordance with plans approved by the district forestry board;
Provisions for reasonable accommodations in policies or procedures when the accommodations are necessary to avoid discrimination on the basis of physical disability, including provisions that authorize a local jurisdiction to require removal of a structure that was installed or built to accommodate a physical disability and require restoration when the accommodation permitted by this paragraph is no longer necessary;
Procedures, including consolidation or reconfiguration of lots, that shall be approved by the Commission and assure that the following lots and lands are brought into conformance with the Program to the extent possible:
In the Chesapeake Bay Critical Area, any legal parcel of land, not being part of a recorded or approved subdivision, that was recorded as of December 1, 1985;
In the Chesapeake Bay Critical Area, land that was subdivided into recorded legally buildable lots, where the subdivision received the local jurisdiction’s final approval before June 1, 1984;
In the Atlantic Coastal Bays Critical Area, any legal parcel of land, not being part of a recorded or approved subdivision, that was recorded as of June 1, 2002; and
In the Atlantic Coastal Bays Critical Area, land that was subdivided into recorded legally buildable lots, where the subdivision received the local jurisdiction’s final approval before June 1, 2002;
Except as provided in subsection (d) of this section, provisions for granting a variance to the local jurisdiction’s critical area program, in accordance with regulations adopted by the Commission concerning variances set forth in COMAR 27.01.12;
Penalty provisions establishing that, in addition to any other penalty applicable under State or local law, each person who violates a provision of this subtitle or of a program, including a contractor, property owner, or any other person who committed, assisted, authorized, or participated in the violation is subject to a fine not exceeding $10,000;
Enforcement procedures in accordance with due process principles, including notice and an opportunity to be heard, and establishing that:
Each violation of this subtitle or of a regulation, rule, order, program, or other requirement adopted under the authority of this subtitle constitutes a separate offense;
Each calendar day that a violation continues constitutes a separate offense;
For each offense, a person shall be subject to separate fines, orders, sanctions, and other penalties;
Penalties for continuing violations shall accrue without a requirement for an additional assessment, notice, or opportunity for hearing for each separate offense;
On consideration of all the factors included under this subsection and any other factors in the local jurisdiction’s approved program, the local jurisdiction shall impose the amount of the penalty;
Satisfaction of all conditions specified under paragraph (4) of this subsection shall be a condition precedent to the issuance of any permit, approval, variance, or special exception for the affected property; and
Unless an extension of time is appropriate because of adverse planting conditions, within 90 days of the issuance of a permit, approval, variance, or special exception for the affected property, any additional mitigation required as a condition of approval for the permit, approval, variance, or special exception shall be completed;
Provisions for:
Identifying areas vulnerable to climate change;
Mitigation and adaptation measures that address sea level rise, storm surge, precipitation–induced flooding, other extreme weather events, migrating wetlands, and coastal forests; and
Enhancing the climate resiliency of the critical area by identifying, restoring, and creating and conserving existing and projected future natural and nature–based features;
Provisions for:
Identifying underserved and overburdened communities within the critical area;
Measures to ensure the equitable distribution of the benefits and burdens of development, restoration, and mitigation within the critical area; and
Ensuring equity in the public participation process;
Provisions to ensure public access to the water, shoreline, and other natural areas for underserved or overburdened communities; and
Methods to ensure effective allocation, accounting, and reporting of fee in lieu funds.
In determining the amount of the penalty to be assessed under paragraph (1)(iii)14 of this subsection, a local jurisdiction shall consider:
The gravity of the violation;
Any willfulness or negligence involved in the violation;
The environmental impact of the violation; and
The cost of restoration of the resource affected by the violation and mitigation for damage to that resource, including the cost to the State or local authorities for performing, supervising, or rendering assistance to the restoration and mitigation.
In paragraph (1)(iii)14 of this subsection, “property owner” includes two or more persons holding title to the property under any form of joint ownership.
Regulations adopted under paragraph (1)(iii)15 of this subsection shall provide for the Commission’s consideration of enforcement provisions submitted by a local jurisdiction that are at least as effective as enforcement requirements under this subtitle and regulations adopted under the authority of this subtitle.
A local jurisdiction may not issue a permit, approval, variance, or special exception that is subject to the violation, unless the person seeking the permit, approval, variance, or special exception has:
Fully paid all penalties imposed as a result of the critical area violation;
Prepared a restoration or mitigation plan, approved by the local jurisdiction, to abate impacts to water quality or natural resources as a result of the violation; and
Performed the abatement measures in the approved plan in accordance with the local critical area program.
In this subsection, “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.
Notwithstanding any other provision of law, the provisions of this paragraph shall apply to a proceeding that involves a variance for a development activity in the buffer under the requirements of:
This subtitle;
A regulation adopted under the authority of this subtitle; or
An approved program.
If a person meets the threshold standing requirements under federal law, the person shall have standing to participate as a party in a local administrative proceeding.
A person that has standing under subparagraph (ii) of this paragraph may:
Participate as a party in an administrative proceeding at a board of appeals even if the person was not a party to the original administrative proceeding; and
Petition for judicial review and participate as a party even if the person was not a party to the action which is the subject of the petition.
A local jurisdiction shall process an application for a variance regarding a parcel or lot that is subject to a current violation of this subtitle, a regulation adopted under the authority of this subtitle, or any provision of an order, permit, plan, or local program in accordance with subsection (c)(1)(iii)15 of this section.
In considering an application for a variance, a local jurisdiction shall presume that the specific development activity in the critical area that is subject to the application and for which a variance is required does not conform with the general purpose and intent of this subtitle, regulations adopted under this subtitle, and the requirements of the local jurisdiction’s program.
If the variance request is based on conditions or circumstances that are the result of actions by the applicant, a local jurisdiction shall consider that fact.
This subparagraph does not apply to a new additional or accessory dwelling unit, as defined under an approved local critical area program.
When requesting a variance for a new accessory structure or use, a rebuttable presumption exists that an existing accessory structure or use on the parcel or lot demonstrates reasonable and significant use.
A local jurisdiction may not accept an application for a variance to:
Authorize a use that is not allowed by the critical area land classification of the lot or parcel;
Adjust the amount or type of mitigation required by critical area regulations or a local critical area program; or
Provide relief that could be obtained through an available administrative process that is approved as part of a local jurisdiction’s critical area program.
An applicant has the burden of proof and the burden of persuasion to overcome the presumption established under paragraph (3)(ii) of this subsection.
Based on competent and substantial evidence, a local jurisdiction shall make written findings as to whether the applicant has overcome the presumption established under paragraph (3)(ii) of this subsection.
With due regard for the person’s experience, technical competence, and specialized knowledge, the written findings may be based on evidence introduced and testimony presented by:
The applicant;
The local jurisdiction or any other government agency; or
Any other person deemed appropriate by the local jurisdiction.
A variance to a local jurisdiction’s critical area program may not be granted unless:
Due to special features of a site, or special conditions or circumstances peculiar to the applicant’s land or structure, a literal enforcement of the critical area program would result in unwarranted hardship to the applicant;
The local jurisdiction finds that the applicant has satisfied each one of the variance provisions;
Subject to subparagraph (ii) of this paragraph, without the variance, the applicant would be deprived of a use of land or a structure permitted to others in accordance with the provisions of the critical area program;
The applicant demonstrates a substantial need for the variance that is not based on convenience, personal preference, or financial advantage; and
The applicant demonstrates that the development cannot be located outside a habitat protection area.
Subsubparagraph 2 of this subparagraph does not apply to a new additional or accessory dwelling unit, as defined under an approved local critical area program.
The applicant may make a comparison under subparagraph (i)3 of this paragraph only to other accessory structures that:
Are located in the critical area;
Were developed after the adoption of the local jurisdiction’s critical area program;
Were conforming and legally authorized at the time of development;
Are similarly situated; and
If located in a modified buffer area, were developed in accordance with requirements for modified buffer areas under the local jurisdiction’s critical area program.
Within 10 working days after a written decision regarding a variance application is issued, the Commission shall receive a copy of the decision from a local jurisdiction.
A local jurisdiction may not issue a permit for the activity that was the subject of the variance application until the applicable 30–day appeal period has elapsed.
A development activity commenced without a required permit, approval, variance, or special exception is a violation of this subtitle.
A local jurisdiction may not accept an application for a variance to legalize a violation of this subtitle, including an unpermitted structure or development activity, unless the local jurisdiction first issues a notice of violation, including assessment of a penalty, for the violation.
If a final adjudication of a notice of violation results in a determination that a violation has occurred, the person shall be liable for a penalty that is twice the amount of the assessment in the notice of violation, in addition to the cost of the hearing and any applicable mitigation costs.
Application for a variance under this paragraph constitutes a waiver of the right to appeal the terms of a notice of violation and its final adjudication, including the payment of any penalties and costs assessed.
If the local jurisdiction finds that the activity or structure for which a variance is requested commenced without permits or approvals and:
Does not meet each of the variance criteria under this subsection, the local jurisdiction shall deny the requested variance and order removal or relocation of any structure and restoration of the affected resources; or
Does meet each of the variance criteria under this subsection, the local jurisdiction may grant approval to the requested variance.
This subsection does not apply to building permits or activities that comply with a buffer exemption plan or buffer management plan of a local jurisdiction which has been approved by the Commission.
Notwithstanding any provision of a local law or ordinance, or the lack of a provision in a local law or ordinance, all of the provisions of this subsection shall apply to, and shall be applied by, a local jurisdiction in the consideration, processing, and decision on an application for a variance.
A local Board of Appeals shall:
Hear on the record an appeal of an administrative officer’s decision on a critical area variance application; and
Grant deference to the administrative officer’s findings of fact.
The Commission shall adopt by regulation on or before December 1, 1985 criteria for program development and approval, which are necessary or appropriate to achieve the standards stated in subsection (b) of this section. Prior to developing its criteria and also prior to adopting its criteria, the Commission shall hold at least 6 regional public hearings, 1 in each of the following areas:
Harford, Cecil, and Kent counties;
Queen Anne’s, Talbot, and Caroline counties;
Dorchester, Somerset, and Wicomico counties;
Baltimore City and Baltimore County;
Charles, Calvert, and St. Mary’s counties; and
Anne Arundel and Prince George’s counties.
During the hearing process, the Commission shall consult with each affected local jurisdiction.
In accordance with its powers under § 8–1806(a) of this subtitle, the Commission may amend the criteria for program development and approval adopted under paragraph (1) of this subsection.
Nothing in this section shall impede or prevent the dredging of any waterway in a critical area. However, dredging in a critical area is subject to other applicable federal and State laws and regulations.
In adopting the initial land classification for the Atlantic Coastal Bays Critical Area, the local program:
Of the Town of Ocean City shall classify as an intensely developed area that area that is within the municipal boundaries of Ocean City as of January 1, 2002; and
Of Worcester County shall classify as an intensely developed area that area located on the western mainland that is east of Golf Course Road, south of Charles Street, and north of Route 707 (Old Bridge Road).
The provisions of this subtitle and Title 27 of the Code of Maryland Regulations apply to the Atlantic Coastal Bays Critical Area.
This section is intended to establish conditions for development in the Chesapeake Bay Critical Area and the Atlantic Coastal Bays Critical Area in addition to those established in criteria of the Commission. However, in the event of any inconsistency between the criteria and the provisions of this section, this section shall control.
The growth allocation for a local jurisdiction shall be calculated based on 5 percent of the total resource conservation area in a local jurisdiction:
In the Chesapeake Bay Critical Area at the time of the original approval of the local jurisdiction’s program by the Commission, not including tidal wetlands or land owned by the federal government; or
In the Atlantic Coastal Bays Critical Area at the time of the original approval of the local jurisdiction’s program by the Commission, not including tidal wetlands or land owned by the federal government.
In paragraphs (3)(i) and (4)(i) of this subsection, “consistent with” or “consistency with” a jurisdiction’s comprehensive plan means that a standard or factor will further, and not be contrary to, the following items in the plan:
Policies;
Timing of the implementation of the plan;
Timing of development;
Timing of rezoning;
Development patterns;
Land uses; and
Densities or intensities.
When locating new intensely developed or limited development areas, local jurisdictions shall use the following standards:
Locate a new intensely developed area in a limited development area or adjacent to an existing intensely developed area;
Locate a new limited development area adjacent to an existing limited development area or an intensely developed area;
Locate a new limited development area or an intensely developed area in a manner that minimizes impacts to a habitat protection area as defined in COMAR 27.01.09, and in an area and manner that optimizes benefits to water quality;
Locate a new intensely developed area or a limited development area in a resource conservation area at least 300 feet beyond the landward edge of tidal wetlands or tidal waters, unless the local jurisdiction proposes, and the Commission approves, alternative measures for enhancement of water quality and habitat that provide greater benefits to the resources;
Locate new intensely developed areas and limited development areas in a manner that minimizes their impacts to the defined land uses of the resource conservation area;
Locate new intensely developed areas and limited development areas outside of areas vulnerable to climate change unless the local jurisdiction proposes and the Commission approves:
Areas identified by the local jurisdiction as vulnerable to climate change as required under § 8–1808(c)(1)(iii)16 of this subtitle; and
Measures that:
Assess climate resiliency and vulnerability; and
Incorporate siting, design, construction, and other natural features to significantly enhance climate resiliency and reduce vulnerability;
Except as provided in item (ix) of this paragraph, no more than one–half of the expansion allocated in the criteria of the Commission may be located in resource conservation areas;
New intensely developed or limited development areas involving the use of growth allocation shall conform to all criteria of the Commission and shall be designated on the comprehensive zoning map submitted by the local jurisdiction as part of its application to the Commission for program approval or at a later date in compliance with § 8–1809(g) of this subtitle; and
In Calvert, Caroline, Cecil, Charles, Dorchester, Kent, Queen Anne’s, St. Mary’s, Somerset, Talbot, Wicomico, and Worcester counties, if the county is unable to utilize a portion of the growth allocated to the county in items (i) and (ii) of this paragraph within or adjacent to existing intensely developed or limited development areas as demonstrated in the local plan approved by the Commission, then that portion of the allocated expansion which cannot be so located may be located in the resource conservation area in addition to the expansion allocated in item (vii) of this paragraph. A developer shall be required to cluster any development in an area of expansion authorized under this paragraph.
A local jurisdiction may use a standard that varies from the standards required under paragraph (2)(i) and (ii) of this subsection if:
The alternative standard is consistent with the jurisdiction’s adopted comprehensive plan; and
The Commission has approved the alternative standard as part of the local program.
In reviewing map amendments or refinements involving the use of growth allocation, the Commission shall consider the following factors:
Consistency with the jurisdiction’s adopted comprehensive plan and whether the growth allocation would implement the goals and objectives of the adopted plan;
For a map amendment or refinement involving a new intensely developed area, whether the development is:
To be served by a public wastewater system;
To have an allowed average density of at least 3.5 units per acre, as calculated under § 5–7B–03(h) of the State Finance and Procurement Article;
For a new intensely developed area that is greater than 20 acres, to be located in a priority funding area, as described under §§ 5–7B–02(1) and 5–7B–03 of the State Finance and Procurement Article; and
To have a demonstrable economic benefit to the area; and
For a map amendment or refinement involving a new limited development area, whether the development is:
To be served by a public wastewater system or septic system that uses the best available nitrogen removal technology;
A completion of an existing subdivision;
An expansion of an existing business; or
To be clustered;
The use of existing public infrastructure, where practical;
Consistency with State and regional environmental protection policies concerning the protection of threatened and endangered species and species in need of conservation that may be located on– or off–site;
Impacts on a priority preservation area, as defined under § 2–518 of the Agriculture Article;
Environmental impacts associated with wastewater and stormwater management practices and wastewater and stormwater discharges to tidal waters, tidal wetlands, and tributary streams;
Environmental impacts associated with location in a coastal hazard area or an increased risk of severe flooding attributable to the proposed development; and
Environmental impacts on underserved or overburdened communities.
The Commission shall ensure that the standards and factors in paragraphs (2), (3), and (4) of this subsection have been applied in a manner that is consistent with the purposes, policies, goals, and provisions of this subtitle, and all criteria of the Commission.
Subject to the conditions under paragraphs (2) and (3) of this subsection, if a jurisdiction has within its territorial limits an area that is subject to the Chesapeake Bay Critical Area program and an area that is subject to the Atlantic Coastal Bays Critical Area program, the growth allocation for that jurisdiction may be utilized within either critical area, as the jurisdiction’s local program considers appropriate.
A local jurisdiction’s program may not utilize the growth allocation from another critical area unless the growth allocation remaining in either critical area is insufficient to allow approval of a growth allocation proposal associated with a program amendment for which the local program seeks Commission approval.
A local jurisdiction’s program may not transfer more than 150 acres of growth allocation to another critical area.
Except as authorized under paragraph (2) of this subsection, in calculating the 1–in–20 acre density of development that is permitted on a parcel located within the resource conservation area, a local jurisdiction:
Shall count each dwelling unit; and
May permit the area of any private wetlands located on the property to be included, under the following conditions:
Only when using transfer of development rights; and
The area of private wetlands shall be field delineated when certifying development rights for transfer.
Within a resource conservation area, a local jurisdiction may consider one additional dwelling unit per lot or parcel as part of a primary dwelling unit for the purpose of the density calculation under this subsection if the additional dwelling unit:
Does not require a variance to any critical area development standards; and
Is located within the primary dwelling unit or its entire perimeter is within 100 feet of the primary dwelling unit; and
II. Does not exceed 900 square feet in total enclosed area; or
Is located within the primary dwelling unit; and
II. By its construction, does not increase the amount of lot coverage already attributed to the primary dwelling unit by greater than 900 square feet.
The provisions of this paragraph may not be construed to require a local jurisdiction to consider an additional dwelling unit as part of a primary dwelling unit for the purpose of the density calculation under this subsection.
An additional dwelling unit meeting all the criteria under subparagraph (i) of this paragraph that is separate from the primary dwelling unit may not be subdivided or conveyed separately from the primary dwelling unit.
An additional dwelling unit that exceeds 900 square feet shall count towards the density calculation.
In this section the following words have the meanings indicated.
“Bona fide intrafamily transfer” means a transfer to a member of the owner’s immediate family of a portion of the owner’s property for the purpose of establishing a residence for that family member.
“Immediate family” means a father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, or sibling.
Notwithstanding density limitations established in criteria of the Commission, as part of its local program, a local jurisdiction may submit provisions by which an owner of a parcel of land in the resource conservation area may be permitted to make bona fide intrafamily transfers.
If a local jurisdiction includes provisions for bona fide intrafamily transfers as part of its local program, the local jurisdiction shall permit a bona fide intrafamily transfer to be made only from parcels of land that:
Were of record on March 1, 1986, in the Chesapeake Bay Critical Area or on June 1, 2002, in the Atlantic Coastal Bays Critical Area; and
Are 7 acres or more and less than 60 acres in size.
A bona fide intrafamily transfer from a parcel of land shall be a subdivision of the parcel of land that is subject to local approval under Title 5 or Title 23 of the Land Use Article or under any subdivision control provisions of a charter county.
A local jurisdiction:
May approve the subdivision of a parcel of land into the number of lots indicated in this subsection by means of a bona fide intrafamily transfer; and
May not approve any greater subdivision of the parcel of land or any portion of the parcel of land.
A parcel that is 7 acres or more and less than 12 acres in size may be subdivided into 2 lots.
A parcel that is 12 acres or more and less than 60 acres in size may be subdivided into 3 lots. The lots may be created at different times.
As a condition of approval, a local jurisdiction shall require that:
Any deed for a lot that is created by a bona fide intrafamily transfer shall contain a covenant stating that the lot is created subject to the provisions of this section; and
A lot created by a bona fide intrafamily transfer may not be conveyed subsequently to any person other than a member of the owner’s immediate family, except under procedures established pursuant to subsection (g) of this section or through the purchase of a transferable development right.
This subsection does not prevent the conveyance of the lot to a third party as security for a mortgage or deed of trust.
If a local jurisdiction includes provisions for bona fide intrafamily transfers as part of the local jurisdiction’s local program, the local jurisdiction shall establish standards and procedures, subject to the approval of the Commission, by which the local jurisdiction will permit the subsequent conveyance of lots to persons other than immediate family members. The standards and procedures shall assure that:
The lot was created as part of a bona fide intrafamily transfer and not with the intent of subdividing the original parcel of land for purposes of ultimate commercial sale; and
A change in circumstances has occurred since the original transfer was made that is not inconsistent with this subtitle and that warrants an exception; or
Other circumstances that are consistent with this subtitle and with the Commission’s criteria to maintain land areas necessary to support the protective uses of agriculture, forestry, open space, and natural habitats in resource conservation areas warrant an exception.
This section applies notwithstanding:
Any other provision of this subtitle; or
Any criteria or guideline of the Commission adopted under this subtitle.
This section may not be construed to affect a credit applicable to a stormwater management practice that is approved by the Department of the Environment.
Lot coverage in the buffer may not exceed the minimum amount necessary for water–dependent uses, regardless of the critical area classification or the size of the parcel or lot, except:
For a modified buffer area, as mapped or established under an approved local program;
For a variance granted in accordance with this subtitle; or
As provided in a waterfront revitalization area or a waterfront industrial area under a local program.
This section controls over any other requirement concerning lot coverage limitations in limited development areas and resource conservation areas in the critical area.
Except as otherwise provided in this subsection for stormwater runoff, lot coverage is limited to 15% of a parcel or lot.
If a parcel or lot one–half acre or less in size existed on or before December 1, 1985, in the Chesapeake Bay Critical Area or on or before June 1, 2002, in the Atlantic Coastal Bays Critical Area, then lot coverage is limited to 25% of the parcel or lot.
If a parcel or lot greater than one–half acre and less than one acre in size existed on or before December 1, 1985, in the Chesapeake Bay Critical Area or on or before June 1, 2002, in the Atlantic Coastal Bays Critical Area, then lot coverage is limited to 15% of the parcel or lot.
Unless otherwise restricted by a local jurisdiction, lot coverage in a subdivision approved after December 1, 1985, in the Chesapeake Bay Critical Area or after June 1, 2002, in the Atlantic Coastal Bays Critical Area may not exceed 15%. However, the total lot coverage on an individual lot one acre or less in size may exceed 15%.
This section does not apply to a trailer park that was in residential use on or before December 1, 1985, in the Chesapeake Bay Critical Area or on or before June 1, 2002, in the Atlantic Coastal Bays Critical Area.
A local jurisdiction may allow a property owner to exceed the lot coverage limits provided in subsection (d)(2) and (3) of this section if the following conditions exist:
Lot coverage associated with new development activities on the property has been minimized;
For a lot or parcel one–half acre or less in size, total lot coverage does not exceed lot coverage limits in subsection (d)(2) of this section by more than 25% or 500 square feet, whichever is greater;
For a lot or parcel greater than one–half acre and less than one acre in size, total lot coverage does not exceed lot coverage limits in subsection (d)(3) of this section or 5,445 square feet, whichever is greater;
Water quality impacts associated with runoff from new development activities that contribute to lot coverage can be and have been minimized through site design considerations or use of best management practices approved by the local jurisdiction to improve water quality;
The property owner performs on–site mitigation as required by the local jurisdiction to offset potential adverse water quality impacts from the new development activities that contribute to lot coverage, or the property owner pays a fee to the local jurisdiction in lieu of performing the on–site mitigation; and
For development that uses pervious materials that have been approved by the Commission as part of a local program, the limits established in items (2) and (3) of this subsection may be exceeded by up to 500 square feet.
All fees collected by a local jurisdiction under subsection (f)(5) of this section must be used to fund projects that improve water quality within the critical area consistent with the jurisdiction’s local critical area protection program.
In this subsection, “legally developed” means that all physical improvements to a property:
Existed before Commission approval of a local program; or
Were properly permitted in accordance with the local program and impervious surface policies in effect at the time of construction.
A lot or parcel legally developed as of July 1, 2008, may be considered legally nonconforming for purposes of lot coverage requirements.
For the purpose of increasing lot coverage on a lot or parcel under subparagraph (i) of this paragraph, the lot coverage limitations under this section may not be construed to apply to a development activity for which:
A building permit was issued before July 1, 2008; and
Construction was initiated and an inspection was performed before July 1, 2009.
A local jurisdiction may grant a variance from the provisions of this section in accordance with the provisions of this subtitle, 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.
In this section the following words have the meanings indicated.
“Nonwater–dependent project” means a temporary or permanent structure that, by reason of its intrinsic nature, use, or operation, does not require location in, on, or over State or private wetlands.
“Nonwater–dependent project” includes:
A dwelling unit on a pier;
A restaurant, a shop, an office, or any other commercial building or use on a pier;
A temporary or permanent roof or covering on a pier;
A pier used to support a nonwater–dependent use; and
A small–scale renewable energy system on a pier, including:
A solar energy system and its photovoltaic cells, solar panels, or other necessary equipment;
A geothermal energy system and its geothermal heat exchanger or other necessary equipment; and
A wind energy system and its wind turbine, tower, base, or other necessary equipment.
“Nonwater–dependent project” does not include:
A fuel pump or other fuel–dispensing equipment on a pier;
A sanitary sewage pump or other wastewater removal equipment on a pier; or
An office on a pier for managing marina operations, including monitoring vessel traffic, registering vessels, providing docking services, and housing electrical or emergency equipment related to marina operations.
“Pier” means any pier, wharf, dock, walkway, bulkhead, breakwater, piles, or other similar structure.
“Pier” does not include any structure on pilings or stilts that was originally constructed beyond the landward boundaries of State or private wetlands.
This section does not apply to a nonwater–dependent project located on State or private wetlands within the Critical Area in Prince George’s County.
Except as provided in paragraphs (2) and (3) of this subsection and notwithstanding any other provision of law, a local jurisdiction may not issue a building permit or any other approval under this subtitle to authorize a nonwater–dependent project located on State or private wetlands within the Critical Area.
A local jurisdiction may issue a building permit or any other approval under this subtitle to authorize a nonwater–dependent project located on State or private wetlands within the Critical Area if the project:
Involves a commercial activity that is permitted as a secondary or accessory use to a permitted primary commercial use;
Is not located on a pier that is attached to residentially, institutionally, or industrially used property;
Is located in:
An intensely developed area and the project is authorized under a program amendment to a local jurisdiction’s critical area program approved on or after July 1, 2013, if the approved program amendment includes necessary changes to the local jurisdiction’s zoning, subdivision, and other ordinances so as to be consistent with or more restrictive than the requirements provided under this paragraph; or
An area that has been excluded from a local critical area program if the exclusion has been adopted or approved by the Critical Area Commission;
Is approved by the local planning and zoning authorities after the local jurisdiction’s program amendment under item 3A of this item, if applicable, has been approved;
Allows or enhances public access to State wetlands, if applicable;
Does not expand beyond the length, width, or channelward encroachment of the pier on which the project is constructed;
Has a height of up to 18 feet unless the project is located at a marina; and
Is up to 1,000 square feet in total area; or
Is located on a pier that was in existence on or before December 31, 2012;
Satisfies all of the requirements under item (i)1 through 7 of this paragraph; and
If applicable, has a temporary or permanent roof or covering that is up to 1,000 square feet in total area.
A local jurisdiction may issue a building permit or other approval under this subtitle to authorize a nonwater–dependent project for a small–scale renewable energy system on a pier located on State or private wetlands within the Critical Area if the project:
Involves the installation or placement of a small–scale renewable energy system that is permitted as a secondary or accessory use on a pier that is authorized under Title 16 of the Environment Article;
Is located in:
The Critical Area and the project is authorized under a program amendment to a local jurisdiction’s critical area program approved on or after July 1, 2013, if the approved program amendment includes necessary changes to the local jurisdiction’s zoning, subdivision, and other ordinances so as to be consistent with or more restrictive than the requirements provided under this paragraph; or
An area that has been excluded from a local critical area program if the exclusion has been adopted or approved by the Critical Area Commission; and
Is approved by the local planning and zoning authorities after the local jurisdiction’s program amendment under item 2A of this subparagraph, if applicable, has been approved.
A building permit or other approval issued under subparagraph (i) of this paragraph may include the installation or placement of:
A solar energy system attached to a pier if the device or equipment associated with that system does not extend more than:
4 feet above or 18 inches below the deck of the pier; or
1 foot beyond the length or width of the pier;
A solar energy system attached to a piling if there is only one solar panel per boat slip;
A solar energy system attached to a boathouse roof if the device or equipment associated with that system does not extend beyond the length, width, or height of the boathouse roof;
A closed–loop geothermal heat exchanger under a pier if the geothermal heat exchanger or any associated devices or equipment do not:
Extend beyond the length, width, or channelward encroachment of the pier;
Deleteriously alter long shore drift; or
Cause significant individual or cumulative thermal impacts to aquatic resources; or
A wind energy system attached to a pier if there is only one wind energy system per pier for which:
The height from the deck of the pier to the blade extended at its highest point is up to 12 feet;
The rotor diameter of the wind turbine is up to 4 feet; and
The setbacks of the wind energy system from the nearest property line and from the channelward edge of the pier to which that system is attached are at least 1.5 times the total height of the system from its base to the blade extended at its highest point.
In this section, “community pier” means a boat docking facility associated with a subdivision or similar residential area, or with condominiums, apartments, or other multiple–family dwelling units.
“Community pier” does not include a private pier or a mooring.
This section applies notwithstanding:
Any other provision of this subtitle; and
Any criteria or regulation adopted by the Commission under this subtitle.
Subject to the requirements under subsection (d) of this section, a new or expanded community pier or other noncommercial boat docking or storage facility may be permitted in the buffer if:
The facility:
Is water dependent;
Meets a recognized private right or public need;
Is community–owned and established and operated for the benefit of the residents of a platted and recorded riparian subdivision; and
Is associated with a residential development approved by the local jurisdiction for the Critical Area and is consistent with all criteria and local regulations for the Critical Area;
Adverse effects on water quality and fish, plant, and wildlife habitat are minimized;
Insofar as possible, nonwater dependent structures or operations associated with water dependent projects or activities are located outside the buffer;
Disturbance to the buffer is the minimum necessary to provide a single point of access to the facility;
Food, fuel, or other goods and services are not offered for sale, and adequate and clean sanitary facilities are provided; and
When a community pier with slips is provided as part of a new development project, private piers are not permitted in the development area.
The number of slips permitted at a facility shall be the lesser of the following:
One slip for each 50 feet of shoreline in a subdivision located in an intense or limited development area, and one slip for each 300 feet of shoreline in a subdivision located in a resource conservation area; or
A density of slips to platted lots or dwellings within a subdivision in the critical area in accordance with the following schedule:
Platted Lots or Dwellings in the Critical Slips
Area
Up to 15 1 for each lot
16 – 40 15 or 75%, whichever is greater
41 – 100 30 or 50%, whichever is greater
101 – 300 50 or 25%, whichever is greater
More than 300 75 or 15%, whichever is greater
A local jurisdiction may grant a variance from the provisions of this 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.
On or before December 31, 1994, a local jurisdiction shall amend its local critical area protection program to meet the provisions of this section.
This section applies notwithstanding:
Any other provisions of this subtitle;
Any criteria or guidelines adopted by the Commission under this subtitle; or
Any provision of a local program or program amendments as approved before October 1, 1995.
This section applies to applicants seeking project approval of a new or expanded marina.
A local jurisdiction shall provide credit to an applicant if an applicant takes quantifiable actions, before the initiation of the development of a new or expanded marina, to minimize adverse impacts on water quality that may result from the completion of the development of the marina.
Any credits provided to an applicant under paragraph (1) of this subsection shall be applied during the project approval process in assessing the degree to which:
Adverse impacts to water quality of a new or expanded marina project will be minimized or avoided; and
Water quality will be improved as a result of the development of the marina project.
Commercial harvesting of trees by selection, or by the clear-cutting of loblolly pine and tulip poplar, may be allowed to within 50 feet of the landward edge of the mean high water line of tidal waters and perennial tributary streams, or the edge of tidal wetlands, provided that the cutting is conducted in conformity with COMAR 27.01.05 and with a buffer management plan that is prepared by a registered professional forester and is approved by the Department.
The plan shall be required for all commercial harvests within the buffer, regardless of the size of the area to be cut, and shall contain at a minimum the following requirements:
Disturbance of stream banks and shorelines shall be avoided;
The area disturbed or cut shall be replanted or allowed to regenerate in a manner that assures the availability of cover and breeding sites for wildlife and reestablishes the wildlife corridor function of the buffer;
The cutting may not involve the creation of logging roads and skid trails within the buffer; and
Commercial harvesting practices shall be conducted to protect and conserve the habitat protection areas in accordance with COMAR 27.01.09.02, .03, .04, and .05.
Except as provided in subsection (b)(2) of this section, each local jurisdiction in the Atlantic Coastal Bays Critical Area shall include in its local critical area protection program provisions requiring proposed development sites in intensely developed areas to provide a forest or developed woodland cover of at least 15% after development or a fee-in-lieu payment if the fee is adequate to ensure the restoration or establishment of an equivalent forest area.
Except as provided in paragraph (2) of this subsection, the provisions of this subtitle replace the requirements of the Forest Conservation Act provided under Title 5, Subtitle 16 of this article within the Atlantic Coastal Bays Critical Area.
Subsection (a) of this section and paragraph (1) of this subsection do not apply to:
Development of a single lot for the purpose of constructing a dwelling intended for the use of the owner, or a child or grandchild of the owner, if the development does not result in the cutting, clearing, or grading of more than 40,000 square feet of forest, and the lot was legally recorded prior to July 31, 1994; or
A single lot that is part of a project that has otherwise complied with the Forest Conservation Act.
For purposes of subsection (a) of this section, forest or developed woodland cover may include trees, woody plants, and shrubs, and any landscaping under an approved landscaping plan.
Each local jurisdiction in the Atlantic Coastal Bays Critical Area may include in its local critical area protection program:
As part of compliance with the stormwater management requirements of Title 27 of the Code of Maryland Regulations and Title 4, Subtitle 2 of the Environment Article, a provision encouraging the use of bioretention for redevelopment in intensely developed areas;
A provision applying buffer requirements to tributary streams located outside the critical area and within the Atlantic Coastal Bays Watershed that are noted as perennial and intermittent streams in the Atlantic Coastal Bays Watershed and that are so noted on the most recent U.S. Geological Survey 7-1/2 minute topographic quadrangle maps (scale 1:24,000) or on more detailed maps or studies at the discretion of the local jurisdiction; and
To the extent otherwise permitted by law, a provision regarding improvements over State or private wetlands, including criteria for the protection of water quality and fish, wildlife, and plant habitats, and the use and construction of private and community piers in the local jurisdiction.
On request, the Department shall assist a local jurisdiction in the preparation of:
Any more detailed maps or studies necessary to implement the buffer provisions under subsection (c)(2) of this section; and
The wetland protection provisions under subsection (c)(3) of this section.
If a local jurisdiction adopts provisions consistent with subsection (c)(2) of this section, agricultural activities are permitted in the buffer outside the critical area and in the Atlantic Coastal Bays Watershed that are in accordance with Title 27 of the Code of Maryland Regulations under an approved soil conservation and water quality plan.
The provisions of this section apply to a local jurisdiction that is located in the Atlantic Coastal Bays Watershed and not in the Atlantic Coastal Bays Critical Area.
On or before July 15, 2002, a local jurisdiction subject to the provisions of this section shall submit to the Commission a written statement of its intent either:
To adopt provisions applying a buffer to perennial and intermittent streams that are within the boundaries of the local jurisdiction and are noted on the most recent U.S. Geological Survey 7-1/2 minute topographic quadrangle maps (scale 1:24,000) or on more detailed maps or studies at the discretion of the local jurisdiction; or
Not to adopt the provisions.
If a local jurisdiction states the local jurisdiction’s intent to adopt provisions meeting the requirements of this section, the local jurisdiction shall submit the provisions to the Commission and adopt the provisions in accordance with the schedule of submissions for the Atlantic Coastal Bays Critical Area program set forth under § 8-1809 of this subtitle.
This section applies to an application for subdivision or site plan approval within the resource conservation area that:
Receives final local approval on or after July 1, 2008, unless an application for subdivision or site plan approval is submitted before July 1, 2008, and legally recorded by July 1, 2010; and
Does not involve the use of growth allocation.
Except as provided under subsection (c) of this section, the minimum buffer shall be:
200 feet landward from tidal waters or a tidal wetland; and
100 feet landward from a tributary stream.
All provisions under COMAR 27.01.09.01 that are applicable to development activities within the 100–foot buffer, including the establishment of vegetation and expansion requirements, shall apply to the 200–foot buffer.
The 200–foot buffer may be reduced if:
The strict application of the minimum 200–foot buffer would preclude:
Subdivision of the property at a density of one dwelling unit per 20 acres, and all other State and local requirements will be satisfied; or
An intra–family transfer authorized under § 8–1808.2 of this subtitle; and
The reduction will occur in accordance with local program procedures approved by the Commission.
Improvements to protect a person’s property against erosion shall be in accordance with the provisions of § 16–201 of the Environment Article.
Within 45 days after the criteria adopted by the Commission under § 8–1808 of this subtitle become effective, each local jurisdiction shall submit to the Commission a written statement of its intent either:
To develop a critical area protection program to control the use and development of that part of the Chesapeake Bay Critical Area located within its territorial limits; or
Not to develop such a program.
On or before July 15, 2002, each local jurisdiction in the Atlantic Coastal Bays Critical Area shall submit to the Commission a written statement of its intent either:
To develop a critical area protection program to control the use and development of that part of the Atlantic Coastal Bays Critical Area located within its territorial limits; or
Not to develop such a program.
If a local jurisdiction states the local jurisdiction’s intent not to develop a program or fails to submit a timely statement of intent, the Commission shall prepare and adopt a program for the part of the Chesapeake Bay Critical Area or Atlantic Coastal Bays Critical Area in that local jurisdiction.
If a local jurisdiction states the local jurisdiction’s intent to develop a Chesapeake Bay Critical Area program, the local jurisdiction shall prepare a proposed program and submit the program to the Commission within 270 days after the effective date of the criteria adopted under § 8–1808 of this subtitle. However, if the local jurisdiction submits evidence satisfactory to the Commission that the local jurisdiction is making reasonable progress in the development of a program, the Commission may extend this period for up to an additional 180 days. Before submission of a program to the Commission within the time allowed by this subsection, a local jurisdiction shall hold at least 1 public hearing on the proposed program, for which 2 weeks’ notice shall be published in a newspaper of general circulation in the local jurisdiction.
If a local jurisdiction states the local jurisdiction’s intent to develop an Atlantic Coastal Bays Critical Area program, the local jurisdiction shall prepare a proposed program meeting the requirements of the criteria adopted under § 8–1808 of this subtitle and submit the program to the Commission on or before January 1, 2003. However, if the local jurisdiction submits evidence satisfactory to the Commission that the local jurisdiction is making reasonable progress in the development of a program, the Commission may extend this period for up to an additional 30 days. Before submission of a program to the Commission within the time allowed by this subsection, a local jurisdiction shall hold at least 1 public hearing on the proposed program, for which 2 weeks’ notice shall be published in a newspaper of general circulation in the local jurisdiction.
Within 30 days after a program is submitted, the Commission shall appoint a panel of 5 of its members to conduct, in the affected jurisdiction, a public hearing on the proposed program.
Within 90 days after the Commission receives a proposed Chesapeake Bay Critical Area program from a local jurisdiction, the Commission shall approve the proposal or notify the local jurisdiction of specific changes that must be made in order for the proposal to be approved. If the Commission does neither, the proposal shall be deemed approved.
Within 60 days after the Commission receives a proposed Atlantic Coastal Bays Critical Area program from a local jurisdiction, the Commission shall approve the proposal or notify the local jurisdiction of specific changes that must be made in order for the proposal to be approved. If the Commission does neither, the proposal shall be deemed approved.
A changed proposal shall be submitted to the Commission in the same manner as the original proposal, within 40 days after the Commission’s notice. Unless the Commission approves a changed proposal or disapproves a changed proposal and states in writing the reasons for the Commission’s disapproval within 40 days, the changed proposal shall be deemed approved.
Within 90 days after the Commission approves a proposed Chesapeake Bay Critical Area program or a proposed Atlantic Coastal Bays Critical Area program, the local jurisdiction shall hold hearings and adopt the program in accordance with legislative procedures for enacting ordinances. If the governing body of the local jurisdiction wishes to change any part of the approved proposal before adoption, the governing body shall submit the proposed change to the Commission for approval. Unless the Commission approves the change or disapproves the change and states in writing the reasons for the Commission’s disapproval within 30 days after the Commission receives the change, the change shall be deemed approved. A changed part may not be adopted until the changed part is approved by the Commission.
Within 760 days after criteria adopted by the Commission become effective, there shall be in effect throughout the Chesapeake Bay Critical Area programs approved or adopted by the Commission.
On or before September 29, 2003, there shall be in effect throughout the Atlantic Coastal Bays Critical Area programs approved or adopted by the Commission.
Each local jurisdiction shall:
Review its entire program and propose any necessary amendments to its entire program, including local zoning maps, at least every 10 years; and
Send in writing to the Commission, within 60 days after the completion of its review, the following information:
A statement certifying that the required review has been accomplished;
Any necessary requests for program amendments, program refinements, or other matters that the local jurisdiction wishes the Commission to consider;
An updated resource inventory; and
A statement quantifying acreages within each land classification, the growth allocation used, and the growth allocation remaining.
On request of a local jurisdiction, the Commission shall extend the deadline under subsection (g) of this section for that local jurisdiction by 1 year.
On or after January 1, 2028, a local jurisdiction that does not meet the deadline under subsection (g)(1) of this section or after the expiration of any extension granted under subsection (h) of this section may not propose an amendment or refinement under subsection (j) of this section.
As often as necessary but not more than 4 times per calendar year, each local jurisdiction may propose program amendments and program refinements to its adopted program.
A change to a critical area designation may be granted by a local approving authority on proof of mistake if the proposed critical area classification:
Conforms to the State critical area mapping criteria;
Is based on land uses or natural features in existence:
As of December 1, 1985, for the Chesapeake Bay Critical Area; or
As of June 1, 2002, for the Atlantic Coastal Bays Critical Area; or
For areas included in the critical area due to remapping, is based on land uses or natural features in existence at the time of the remapping;
Follows the local jurisdiction’s documented mapping methodology for critical area classifications at the time of original program adoption; and
Is consistent with the purposes, policies, and goals of this subtitle and all criteria of the Commission.
A zoning map amendment may be granted if the zoning map amendment:
Is wholly consistent with the land classifications in the adopted program;
Proposes the use of a part of the remaining growth allocation in accordance with the adopted program; or
Proposes to change the land classification from either an intensely developed area to a limited development area or a resource conservation area, or a limited development area to a resource conservation area.
A program may not be amended except with the approval of the Commission.
The Commission shall approve programs and program amendments that meet:
The standards set forth in § 8–1808(b)(1) through (4) of this subtitle; and
The criteria adopted by the Commission under § 8–1808 of this subtitle.
If the Commission determines that an adopted program contains a clear mistake, omission, or conflict with the criteria or law, the Commission may:
Notify the local jurisdiction of the specific deficiency; and
Direct that the jurisdiction submit a proposed program amendment or program refinement to correct the deficiency.
Within 90 days after being notified of any deficiency under paragraph (1) of this subsection, the local jurisdiction shall submit to the Commission, as program amendments or program refinements, any proposed changes that are necessary to correct those deficiencies.
Local project approvals granted under a part of a program that the Commission has determined to be deficient shall be null and void after notice of the deficiency.
The Commission may adopt regulations that prescribe the procedures and information requirements for program amendments and program refinements.
In the absence of regulations under paragraph (1) of this subsection, a local jurisdiction may propose changes to adopted programs. Within 10 working days of receiving a proposal under this paragraph, the Commission shall:
Notify in writing the local jurisdiction that the proposal has been accepted for processing; or
Return the proposal as incomplete.
A local jurisdiction may specify whether it intends a proposed change to be a program amendment or program refinement. However, the Commission shall treat a proposed change as a program amendment unless the chair determines that the proposed change is a program refinement.
For proposed program amendments, a Commission panel shall hold a public hearing in the local jurisdiction, and the Commission shall act on the proposed program amendment within 130 days of the Commission’s acceptance of the proposal unless the local jurisdiction requests, and the chair approves, an extension.
Unless the local jurisdiction requests, and the chair approves, an extension, if action by the Commission is not taken within 130 days, the proposed program amendment is deemed approved.
The Commission shall determine if the proposed amendment is consistent with the purposes, policies, goals, and the provisions of this subtitle, and all criteria of the Commission.
In accordance with the Commission’s determination in paragraph (2) of this subsection, the Commission shall:
Approve the proposed program amendment and notify the local jurisdiction;
Deny the proposed program amendment;
Approve the proposed program amendment subject to one or more conditions; or
Return the proposed program amendment to the local jurisdiction with a list of the changes to be made.
If the Commission approves a proposed program amendment subject to one or more conditions under paragraph (3)(iii) of this subsection, the local jurisdiction shall notify the Commission within 60 days of its intent to adopt the conditions.
The local jurisdiction shall incorporate the approved program amendment and any required conditions into the adopted program within 120 days of receiving notice from the Commission that the program amendment has been approved.
Proposed program refinements shall be determined as provided in this subsection.
Within 30 days of the Commission’s acceptance of a proposal to change an adopted program, the chair, on behalf of the Commission, may determine that the proposed change is a program refinement.
The chair shall notify the Commission of that determination at the next meeting or a subsequent meeting if the local jurisdiction requests, and the chair approves, an extension.
If a proposed change that was specifically submitted as a program refinement is not acted on by the chair within the 30–day period under subparagraph (i) of this paragraph or approved for an extension under subparagraph (ii) of this paragraph, the Commission shall notify the appropriate local jurisdiction that the proposed change has been deemed to be a program amendment.
The Commission may vote to override the chair’s determination only at the first Commission meeting where a quorum is present following the chair’s notification to the Commission.
If the chair’s determination is overridden, the proposed change is deemed a program amendment, which shall be decided by the Commission in accordance with the procedures for program amendments provided in this section, except that the Commission shall act on the program amendment within 130 days after a vote to override the chair.
If the chair’s determination is not overridden, within 10 working days after the opportunity to override the chair’s decision under subparagraph (i) of this paragraph, the chair shall:
Determine if the program refinement is consistent with the purposes, policies, goals, and provisions of this subtitle, and all criteria of the Commission; and
Approve the proposed program refinement and notify the local jurisdiction;
Deny the program refinement;
Approve the proposed program refinement subject to one or more conditions; or
Return the proposed program refinement back to the local jurisdiction with a list of the changes to be made.
If the chair approves a proposed program refinement subject to one or more conditions under subparagraph (iii)2C of this paragraph, the local jurisdiction shall notify the Commission within 60 days of its intent to adopt the conditions.
A local jurisdiction shall incorporate an approved program refinement and any required conditions into its adopted program within 120 days of receiving notice from the chair that the program refinement has been approved.
As necessary, a local jurisdiction may combine any or all proposed program amendments or program refinements required for a specific project approval into a single request to the Commission for program amendment, program refinement, or both.
The Commission shall ensure that any requests received in accordance with this paragraph are consistent with the purposes, policies, goals, and provisions of this subtitle, and all criteria of the Commission.
A project for which a local jurisdiction requests growth allocation may be submitted as a proposed program amendment, program refinement, or both.
Approval by the Commission of a program amendment, program refinement, or both does not affect the Commission’s authority to receive notice of or intervene in a project approval that was not specifically approved by the Commission as part of its approval of a program amendment or program refinement.
Within 6 months after the adoption of amended criteria, a local jurisdiction shall send to the Commission:
Proposed program amendments or program refinements that address the amended criteria; or
A statement describing how the adopted program conforms to the amended criteria and certifying that the adopted program is consistent with the amended criteria.
If the Commission adopts a regulation concerning the use of the growth allocation, any use of the growth allocation must be in accordance with that regulation for the change to be considered a program refinement.
If a local jurisdiction fails to notify the Commission that the local jurisdiction will develop a program, fails to submit a proposed program or changed proposal on time, or fails to obtain Commission approval of a proposed program or changed proposal that is submitted, the Commission shall prepare and adopt a program that satisfies the criteria adopted under § 8–1808 of this subtitle for the part of the Chesapeake Bay Critical Area or Atlantic Coastal Bays Critical Area in that local jurisdiction.
Where a local jurisdiction failed to adopt or obtain Commission approval of a program, the Commission shall adopt a program for that jurisdiction by adopting regulations in accordance with Title 2, Subtitle 5 (Joint Committee on Administrative, Executive, and Legislative Review) and Title 10, Subtitle 1 (Administrative Procedure Act) of the State Government Article. Before the full Commission adopts a program under this subsection, the Commission shall appoint a panel of 3 of the Commission’s members to conduct in the affected jurisdiction at least 2 public hearings at least 10 days apart on the proposed program, for which 2 weeks’ notice shall be published in a newspaper of general circulation in the local jurisdiction. A program adopted by the Commission under this subsection shall supersede any inconsistent local laws, ordinances, or plans.
If the Commission adopts a program for a local jurisdiction, the program shall be implemented and enforced by local authorities in the same manner as if the program had been adopted by the local jurisdiction itself.
If, at any time after the Commission has adopted a program for a local jurisdiction, the local jurisdiction submits an alternative program of its own that satisfies the criteria adopted under § 8–1808 of this subtitle and is approved by the Commission, the alternative program supersedes the program adopted by the Commission.
If a local jurisdiction fails to update an adopted program after the deadline under § 8–1809(g)(1) of this subtitle or after the expiration of an extension granted under § 8–1809(h) of this subtitle, the Commission shall make a good faith effort to notify the local jurisdiction that its program needs to be updated by at least 4 documented notification attempts over a 3–year period.
Subject to subparagraph (ii) of this paragraph, the local jurisdiction shall adopt an update to the program within 2 years of the last notice from the Commission.
The Commission may update the program if the local jurisdiction fails to update its program within the 2–year period.
From the effective date of a program approved or adopted by the Commission, a project approval that involves land located in the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area may not be granted unless the project approval is consistent and complies with the program.
The Commission shall adopt regulations identifying those classes of applications for project approval of which the Commission wishes to receive notice.
From the date designated by the Commission in approving or adopting a program, an applicant for project approval or the local agency authorized to grant project approval on an application in any of the identified classes shall send to the Commission in accordance with the regulations and any other instructions of the Commission, a copy of every pending or new application for approval that is in any of the identified classes. Before the close of the fifth business day after receipt of a copy of an application from the local approving authority, the Commission shall send written notice of receipt to the applicant and to the local approving authority. A failure of the Commission to send a timely notice shall render paragraph (3) of this subsection inapplicable as to that application.
The local approving authority may not process an application of which a copy must be sent to the Commission until the local approving authority has received notice of receipt from the Commission, and any action of the local approving authority in violation of this paragraph shall be void.
After the Commission has approved or adopted a program, the chair of the Commission has standing and the right and authority to initiate or intervene in any administrative, judicial, or other original proceeding or appeal in this State concerning a project approval in the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area. The chair may exercise this intervention authority without first obtaining approval from the Commission, but the chair shall send prompt written notice of any intervention or initiation of action under this section to each member of the Commission. The chair shall withdraw the intervention or action initiated if, within 35 days after the date of the chair’s notice, at least 13 members indicate disapproval of the action, either in writing addressed to the chair or by vote at a meeting of the Commission. A member representing the local jurisdiction affected by the chair’s intervention or action may request a meeting of the Commission to vote on the chair’s intervention or action.
Except as stated in this subtitle, the chair is subject to general laws and rules of procedure that govern the time within and manner in which the authority granted in subsection (a) of this section may be exercised.
The chair may appeal an action or decision even if the chair was not a party to or is not specifically aggrieved by the action or decision.
From June 1, 1984, with regard to any subdivision plat approval or approval of a zoning amendment, variance, special exception, conditional use permit, or use of a floating zone, affecting any land or water area located within the initial planning area identified in § 8–1807(a) of this subtitle, for which application is completed after that date, the approving authority of the local jurisdiction in rendering its decision to approve an application shall make specific findings that:
The proposed development will minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have run off from surrounding lands; and
The applicant has identified fish, wildlife, and plant habitat which may be adversely affected by the proposed development and has designed the development so as to protect those identified habitats whose loss would substantially diminish the continued ability of populations of affected species to sustain themselves.
On or after June 1, 2002, with regard to any subdivision plat approval or approval of a zoning amendment, variance, special exception, conditional use permit, or use of a floating zone, affecting any land or water area located within the initial planning area identified in § 8–1807(b) of this subtitle, for which application is completed after that date, the approving authority of the local jurisdiction in rendering its decision to approve an application shall make specific findings that:
The proposed development will minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have run off from surrounding lands; and
The applicant has identified fish, wildlife, and plant habitat which may be adversely affected by the proposed development and has designed the development so as to protect those identified habitats whose loss would substantially diminish the continued ability of populations of affected species to sustain themselves.
With regard to any application for project approval described in subsection (a) or (b) of this section, a local approving authority shall require any additional information from an applicant as is necessary in order to make the findings required by subsection (a) or (b) of this section.
This section shall remain in effect in a local jurisdiction until such time as an approved program becomes effective.
This section does not apply to any application in the Chesapeake Bay Critical Area initially filed prior to March 1, 1984, or any application in the Atlantic Coastal Bays Critical Area filed prior to June 1, 2002.
Except as provided in subsections (b), (c), and (d) of this section, a local jurisdiction in the Atlantic Coastal Bays Critical Area shall permit a single lot or parcel of land that was legally of record on the date of program approval to be developed with a single family dwelling, if a dwelling is not already placed there, notwithstanding that such development may be inconsistent with the approved density provisions of the approved local program, provided that:
The local jurisdiction develops, as part of its program, procedures to bring the lots or lands into conformance with the local critical area program to the extent possible, including the consolidation or reconfiguration of lots not individually owned; and
The procedures developed in accordance with item (1) of this subsection are approved by the Commission.
Land that was subdivided into recorded and legally buildable lots for which the subdivision received the local jurisdiction’s final approval after June 1, 2002, but prior to program approval may be developed with a single family dwelling, if a single family dwelling is not already placed there, provided that:
Development of the land conforms to the requirements of this title and Title 27 of the Code of Maryland Regulations; or
The area of land is deducted from the local jurisdiction’s growth allocation in accordance with § 8–1808.1(b) of this subtitle and COMAR 27.01.02.06.
In this subsection and subsection (d) of this section the following words have the meanings indicated.
“Bayside mixed use district” means a district of existing large bayside parcels that:
Are essentially undeveloped with permanent structures;
Are suitable for large–scale commercial or mixed use development; and
Offer the opportunity for well–planned, efficient, and diversified comprehensive development.
“Planned unit development” means a development comprised of a combination of land uses or varying intensities of the same land use in accordance with an integrated plan that provides flexibility in land use design approved by the local jurisdiction.
“Planned unit development” includes a residential planned community.
A planned unit development in a bayside mixed use district that has received the local jurisdiction’s final site approval and is legally buildable after June 1, 2002, but prior to program approval may be developed if:
Development of the land conforms to the requirements of this title and Title 27 of the Code of Maryland Regulations;
The area is deducted from the local jurisdiction’s growth allocation in accordance with § 8–1808.1(b) of this subtitle and COMAR 27.01.02.06; or
The land:
Is designated as an intensely developed area;
Is exempted from the buffer designation in COMAR 27.01.09; and
Is part of a project that complies with Title 4, Subtitle 2 of the Environment Article.
A local jurisdiction may include in the jurisdiction’s local critical area protection program, to be approved by the Commission, an alternative buffer provision for the development of a planned unit development in accordance with the planned unit development’s Step III approval, provided that:
The planned unit development received Step III approval from the local jurisdiction prior to June 1, 2002;
The planned unit development has received the local jurisdiction’s final subdivision approval and is legally buildable after June 1, 2002, but prior to program approval;
The area is deducted from the local jurisdiction’s growth allocation in accordance with § 8–1808.1(b) of this subtitle and COMAR 27.01.02.06, if applicable;
The provision includes measures that protect water quality and fish, wildlife, and plant habitats in accordance with the intent of this subtitle and Title 27 of the Code of Maryland Regulations; and
At least 75% of the dwelling units in the planned unit development comply with the buffer requirements in COMAR 27.01.09.01 and no dwelling unit has a buffer of less than 50 feet landward from existing or proposed tidal waters, tidal wetlands, or tributary streams.
For purposes of implementing this subtitle, a local jurisdiction in the Atlantic Coastal Bays Critical Area shall have determined, based on land uses and development in existence on June 1, 2002, which land areas fall into the three types of development areas in accordance with Title 27 of the Code of Maryland Regulations.
After 760 days have elapsed from the date upon which criteria adopted by the Commission become effective, any State or local agency that proposes development which has not been subject to project approval by the local jurisdiction under an approved program, including buildings, treatment plants, roads, railroads, and airports, in the Chesapeake Bay Critical Area and Atlantic Coastal Bays Critical Area shall, before the State or local agency begins the development, receive the approval of the Commission in accordance with procedures or exceptions set forth in regulations adopted by the Commission using the standards set forth in § 8–1808(b)(1) through (3) of this subtitle. These regulations shall be adopted on or before September 1, 1987, and only after consultation with affected State and local agencies.
The Secretary shall consult with the Commission in making consistency determinations under the Federal Coastal Zone Management Program.
This subtitle is not intended to relieve any obligation otherwise imposed by law or regulation to obtain licenses, permits, or approvals from State and local regulatory agencies or to comply with applicable State and local regulatory prohibitions or restrictions.
Except as otherwise authorized in a local jurisdiction, in accordance with the procedures set forth in subparagraph (ii) of this paragraph, a local authority may obtain access to and enter a property in order to identify or verify a suspected violation, restrain a development activity, or issue a citation if the local authority has probable cause to believe that a violation of this subtitle or the local program has occurred, is occurring, or will occur.
A local authority shall make a reasonable effort to contact a property owner before obtaining access to or entering the property.
If entry is denied, the local authority may seek an injunction to enter the property to pursue an enforcement action.
A local authority that identifies a violation of this subtitle or of the local program shall take enforcement action.
The local authority shall require appropriate restoration and mitigation as necessary to offset adverse impacts to the critical area resulting from the violation.
For restoration or mitigation that exceeds 1,000 square feet or involves expenses exceeding $1,000, the local authority shall collect a bond or other financial security or adopt appropriate procedures to ensure that the restoration or mitigation is properly completed.
If the restoration or mitigation involves planting, the bond shall be held for at least 2 years after the date the plantings were installed to ensure plant survival.
On request of the property owner, the local authority shall schedule inspections as necessary to ensure compliance and the return of the bond or other financial security.
A person who violates an order, permit, plan, local program, this subtitle, or regulations adopted, approved, or issued under this subtitle shall be:
Subject to prosecution or suit in circuit court or District Court by the chair or local authorities, who may invoke the sanctions and remedies afforded by State or local law;
Guilty of a misdemeanor; and
On conviction in a court of competent jurisdiction, subject to a fine not exceeding $10,000 or imprisonment not exceeding 90 days or both, with costs imposed in the discretion of the court.
A criminal prosecution or a suit for a civil penalty for violation of a provision of an order, permit, plan, local program, this subtitle, or regulations adopted, approved, or issued under the authority of this subtitle shall be instituted within 3 years after the Commission or the local authorities in fact knew or reasonably should have known of the violation.
A local authority may request:
Assistance from the Commission in an enforcement action; or
That the chair refer an enforcement action to the Attorney General.
Whenever the chair has reason to believe that a local jurisdiction is failing to enforce the requirements of a program applicable to a particular development, the chair shall serve notice upon the local enforcement authorities and may refer the matter to the Attorney General.
Upon referral of an alleged violation under subsection (a) or (b) of this section, the Attorney General may invoke any sanction or remedy available to local authorities, in any court of competent jurisdiction in which the local authorities would be authorized to prosecute or sue the violator.
In addition to any other sanction or remedy available, the Attorney General may bring an action in equity to compel compliance or restrain noncompliance with the requirements of an order, a permit, a plan, a local program, this subtitle, or regulations adopted, approved, or issued under this subtitle, and to compel restoration of lands or structures to their condition prior to any modification which was done in violation of an order, a permit, a plan, a local program, this subtitle, or regulations adopted, approved, or issued under this subtitle.
Notwithstanding any other provision of this section, whenever a development in the Chesapeake Bay Critical Area or Atlantic Coastal Bays Critical Area is proceeding in violation of an order, a permit, a plan, a local program, this subtitle, or regulations adopted, approved, or issued under this subtitle and threatens to immediately and irreparably degrade the quality of tidal waters or fish, wildlife, or plant habitat, the Attorney General, upon request of the chair, may bring an action to restrain the violation and, as appropriate, to compel restoration of any land or water areas affected by the development.
The provisions of this section are in addition to any other sanction, remedy, or penalty provided by law.
This section does not apply to any cutting or clearing of trees that is allowed under regulations adopted by the Commission under this subtitle.
Subject to subsection (f) of this section, if a person cuts or clears or plans to cut or clear trees within the Chesapeake Bay Critical Area or Atlantic Coastal Bays Critical Area in violation of an approved local critical area program or of regulations adopted by the Commission, the chair may bring an action, or the local jurisdiction may bring an action or request that the chair of the Commission refer the matter to the Attorney General to bring an action:
To require the person to replant trees where the cutting or clearing occurred in accordance with a plan prepared by the State Forester, a licensed forester, a licensed landscape architect, or any other qualified professional approved by the Department;
To restrain the planned violation; or
For damages:
To be assessed by a circuit court in an amount equal to the estimated cost of replanting trees; and
To be paid to the local jurisdiction by the person found to have violated the provisions of this subsection.
If the chair of the Commission has reason to believe that the local jurisdiction is failing to enforce the requirements of subsection (b) of this section, the chair shall refer the matter to the Attorney General as provided under § 8–1815(b) of this subtitle.
On the chair of the Commission’s referral of an alleged violation under subsection (c) of this section to the Attorney General, the Attorney General may invoke the remedies available to the local jurisdiction under subsection (b) of this section in any court of competent jurisdiction in which the local jurisdiction would be authorized to prosecute or sue.
On the request of a local jurisdiction or the chair of the Commission, the State Forester, a licensed forester, a licensed landscape architect, or any other qualified professional approved by the Department may prepare, oversee, and approve the final implementation of a plan to:
Replant trees in any part of the Chesapeake Bay Critical Area where trees in the Chesapeake Bay Critical Area are cut or cleared in violation of subsection (b) of this section; and
Replant trees in any part of the Atlantic Coastal Bays Critical Area where trees in the Atlantic Coastal Bays Critical Area are cut or cleared in violation of subsection (b) of this section.
This subsection applies only:
In Prince George’s County; and
To real property consisting of a parcel of land of less than 5 acres that is not zoned for commercial use.
In the enforcement of subsection (b) of this section for a violation involving the clearing or cutting of trees in the Critical Area, the Prince George’s County Department of Permitting, Inspections, and Enforcement shall record a lien on the property that is the subject of the violation within 90 days after issuing notice of the violation to the property owner.
A properly recorded lien as described in subparagraph (i) of this paragraph is required to enforce and hold a current property owner liable for the cutting or clearing of trees by a previous property owner or user who performed the act that caused the violation.
If a lien is not recorded as required, the local jurisdiction:
May pursue an enforcement action against only the previous owner or user that performed the act that caused the violation;
May not seek the remedies described in subsection (b) of this section against the current property owner; and
Shall perform any restoration or mitigation that may be required under this section or § 8–1815 of this subtitle resulting from the violation that is not performed by the previous owner or user; and
May enter the property that is the subject of the violation for restoration or mitigation purposes in accordance with § 8–1815 of this subtitle.
In consultation with State and local agencies involved in planning, acquiring, and managing open space and recreational lands, the Commission, by January 1, 1987, shall prepare a report to the Governor and the General Assembly recommending State policy and goals for:
The provision of public access along the shoreline of the Chesapeake Bay and its tributaries; and
The reforestation of land within the Critical Area and the preservation of forested land within the Critical Area.