NEW STATE LEGISLATION FOR THE CHESAPEAKE AND ATLANTIC COASTAL BAYS CRITICAL AREA PROTECTION PROGRAM

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The recent session of the State Legislature yielded several changes to the Natural Resources Article regarding the Critical Area. Much of this legislation must be incorporated into the Somerset County Local Program and the Zoning Ordinance sections that implement the Critical Area.

VARIANCES

The first change is the definition of "unwarranted hardship" as it applies to Critical Area variances. Although the County's present ordinance requires that the applicant prove undue hardship, there is no definition given. The definition will read:

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.

Due to the outcome of cases reaching the Maryland Court of Appeals (most specifically, Lewis v. Department of Natural Resources from Wicomico County), the Legislature passed law stipulating the conditions and burden of proof required, as well as addressing the written findings of the Board of Appeals. This language will read as follows:

    I.    IN CONSIDERING AN APPLICATION FOR A VARIANCE, THE COUNTY 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 NATURAL RESOURCES ARTICLE, TITLE 8 SUBTITLE 18, COMAR TITLE 27, AND THE REQUIREMENTS OF THE COUNTY'S CRITICAL AREA PROGRAM.
    II.    IF THE VARIANCE REQUEST IS BASED ON CONDITIONS OF CIRCUMSTANCES THAT ARE THE RESULT OF ACTIONS BY THE APPLICANT, INCLUDING THE COMMENCEMENT OF DEVELOPMENT ACTIVITY BEFORE AN APPLICATION FOR A VARIANCE HAS BEEN FILED, THE COUNTY MAY CONSIDER THAT FACT.
    III.    AN APPLICANT HAS THE BURDEN OF PROOF AND THE BURDEN OF PERSUASION TO OVERCOME THE PRESUMPTION OF NONCONFORMANCE ESTABLISHED IN PARAGRAPH I. ABOVE.
    IV.    BASED ON COMPETENT AND SUBSTANTIAL EVIDENCE, THE COUNTY SHALL MAKE WRITTEN FINDINGS AS TO WHETHER THE APPLICANT HAS OVERCOME THE PRESUMPTION OF NONCONFORMANCE AS ESTABLISHED ABOVE.
    V.   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:

          
  • A. THE APPLICANT;

  • B. THE COUNTY OR ANY OTHER GOVERNMENT AGENCY; OR
  • C. ANY OTHER PERSON DEEMED APPROPRIATE BY THE COUNTY
  • BUFFER

    The Legislature also required specific language for the definition of the 100 Foot Buffer. However, this language already exists in our Ordinance and no change is needed. That definition reads:

    BUFFER MEANS AN EXISTING, NATURALLY VEGETATED AREA, OR AN AREA ESTABLISHED IN VEGETATION AND MANAGED TO PROTECT AQUATIC, WETLANDS, SHORELINE, AND TERRESTRIAL ENVIRONMENTS FROM MAN-MADE DISTURBANCES.

    FINES

    The General Assembly also heard concerns that the limitation of $500 in local zoning codes was too low and therefore increased penalty provisions in the Natural Resources Article so that higher penalties could be assessed locally. These provisions read:

    IN ADDITION TO ANY OTHER PENALTY APPLICABLE UNDER STATE OR COUNTY LAW, A PERSON WHO VIOLATES A PROVISION OF NATURAL RESOURCES ARTICLE, TITLE 8, SUBTITLE 18, OR THE COUNTY'S CRITICAL AREA PROGRAM, ORDINANCE, OR REGULATIONS IS SUBJECT TO A FINE NOT EXCEEDING $10,000.

    IN DETERMINING THE AMOUNT OF THE PENALTY TO BE ASSESSED UNDER PARAGRAPH I, THE COUNTY MAY CONSIDER THE FOLLOWING:

  • A. THE GRAVITY OF THE VIOLATION
  • B. ANY WILLFULNESS OR NEGLIGENCE INVOLVED IN THE VIOLATION AND
  • C. THE ENVIRONMENTAL IMPACT OF THE VIOLATION
  • DWELLING UNIT DEFINITION

    Somerset County has always interpreted a dwelling unit as a unit meeting the definition in building codes, however other counties have interpreted it differently and the General Assembly decided to standardize the definition within the law. Accordingly, the following definition must be added to our Ordinance, but will not constitute any change in the way Somerset has always interpreted the density in the Critical Area:

    DWELLING UNIT MEANS A SINGLE UNIT PROVIDING COMPLETE, INDEPENDENT LIVING FACILITIES FOR AT LEAST ONE PERSON, INCLUDING PERMANENT 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.

    The law also allows for certain options as regards additional dwelling units subject to restrictions in size and location. If these are allowed in the future, they would require major changes to the Somerset County Zoning Ordinance throughout the County and are therefore not planned at this time.

    DISCLOSURE FOR REAL PROPERTY SALES

    There have been some concerns raised that individuals buying land within the Critical Area are not aware of the restrictions on that land. The General Assembly has therefore required under the Real Property Article of the Annotated Code of Maryland that contracts must provide a statement in conspicuous type relating to the Chesapeake and Atlantic Coastal Bays Critical Area. The statement informs the buyer what the Critical Area is and what its boundaries are and that certain regulations apply in this area. It also advises the buyer to contact the local Department of Planning and Zoning.

    As always, the Department of Technical and Community Services strongly recommends that a potential buyer, developer, or property owner contact the office for information and to review the maps and other relevant information prior to buying or building on a lot in the Critical Area.

    The Department of Technical and Community Services is located in the
    Somerset County Office Complex,
    11916 Somerset Avenue,
    Room 211 (2nd floor),
    Princess Anne, Maryland 21853.
    Telephone: 410-651-1424;
    Fax: 410-651-2597;
    Email: dtcs@somersetmd.us.
    Office hours are 8:30 to 4:30, Monday through Friday.
     
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