2013 Maryland Code
NATURAL RESOURCES
§ 8-1808 - Program development

§8-1808.

(a) (1) 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.

(2) (i) The Governor shall include in the budget a sum of money to be used for grants to reimburse local jurisdictions for the reasonable costs of developing a program under this section.

(ii) Each local jurisdiction shall submit to the Governor a detailed request for funds that are equivalent to the additional costs incurred in developing the program under this section.

(iii) The Governor shall include in the fiscal year 2003 budget a sum of money to be used for grants to reimburse local jurisdictions in the Atlantic Coastal Bays Critical Area for the reasonable costs of developing a program under this section.

(3) 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 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 of a program under this section.

(b) A program shall consist of those elements which are necessary or appropriate:

(1) 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;

(2) To conserve fish, wildlife, and plant habitat; and

(3) To 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.

(c) (1) (i) 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.

(ii) With the approval of the Commission, a local jurisdiction may establish procedures for the granting of an administrative variance.

(iii) At a minimum, a program shall contain all of the following elements, including:

1. A map designating the critical area in a local jurisdiction;

2. A comprehensive zoning map for the critical area;

3. As necessary, new or amended provisions of the jurisdiction’s:

A. Subdivision regulations;

B. Comprehensive or master plan;

C. Zoning ordinances or regulations;

D. Provisions relating to enforcement; and

E. Provisions as appropriate relating to grandfathering of development at the time the program is adopted or approved by the Commission, including provisions for bringing lands into conformance with the Program as required under item 12 of this subparagraph;

4. Provisions requiring that:

A. Project approvals shall be based on findings that projects are consistent with the standards stated in subsection (b) of this section; and

B. The Commission shall receive written notice of local decisions regarding project approvals or denials in accordance with local procedures approved by the Commission;

5. Provisions to limit lot coverage and to require or encourage cluster development, where necessary or appropriate;

6. Establishment of buffer areas along shorelines within which agriculture will be permitted only if best management practices are used, provided that structures or any other use of land which is necessary for adjacent agriculture shall also be permitted in any buffer area;

7. 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;

8. Designation 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;

9. 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;

10. 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;

11. 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;

12. 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:

A. 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;

B. 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;

C. 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

D. 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;

13. 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 27.01.11;

14. 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; and

15. Administrative enforcement procedures in accordance with due process principles, including notice and an opportunity to be heard, and establishing that:

A. 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;

B. Each calendar day that a violation continues constitutes a separate offense;

C. For each offense, a person shall be subject to separate fines, orders, sanctions, and other penalties;

D. Civil penalties for continuing violations shall accrue without a requirement for an additional assessment, notice, or opportunity for hearing for each separate offense;

E. 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;

F. 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

G. 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.

(2) (i) In determining the amount of the penalty to be assessed under paragraph (1)(iii)14 of this subsection, a local jurisdiction shall consider:

1. The gravity of the violation;

2. Any willfulness or negligence involved in the violation;

3. The environmental impact of the violation; and

4. 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.

(ii) 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.

(3) 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.

(4) A local jurisdiction may not issue a permit, approval, variance, or special exception unless the person seeking the permit, approval, variance, or special exception has:

(i) Fully paid all administrative, civil, and criminal penalties imposed under paragraph (1)(iii)15 of this subsection;

(ii) 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

(iii) Performed the abatement measures in the approved plan in accordance with the local critical area program.

(d) (1) 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.

(2) (i) 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:

1. This subtitle;

2. A regulation adopted under the authority of this subtitle; or

3. An approved program.

(ii) 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.

(iii) A person that has standing under subparagraph (ii) of this paragraph may:

1. 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

2. 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.

(3) (i) 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.

(ii) 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.

(iii) 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.

(4) (i) An applicant has the burden of proof and the burden of persuasion to overcome the presumption established under paragraph (3)(ii) of this subsection.

(ii) 1. 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.

2. 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 local jurisdiction or any other government agency; or

C. Any other person deemed appropriate by the local jurisdiction.

(5) A variance to a local jurisdiction’s critical area program may not be granted unless:

(i) 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;

(ii) The local jurisdiction finds that the applicant has satisfied each one of the variance provisions; and

(iii) 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.

(6) (i) 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.

(ii) 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.

(7) (i) A development activity commenced without a required permit, approval, variance, or special exception is a violation of this subtitle.

(ii) 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 an administrative or civil penalty, for the violation.

(iii) 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.

(iv) 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.

(v) If the local jurisdiction finds that the activity or structure for which a variance is requested commenced without permits or approvals and:

1. 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

2. Does meet each of the variance criteria under this subsection, the local jurisdiction may grant approval to the requested variance.

(8) 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.

(9) 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.

(e) (1) 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:

(i) Harford, Cecil, and Kent counties;

(ii) Queen Anne’s, Talbot, and Caroline counties;

(iii) Dorchester, Somerset, and Wicomico counties;

(iv) Baltimore City and Baltimore County;

(v) Charles, Calvert, and St. Mary’s counties; and

(vi) Anne Arundel and Prince George’s counties.

(2) During the hearing process, the Commission shall consult with each affected local jurisdiction.

(3) 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.

(f) 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.

(g) In adopting the initial land classification for the Atlantic Coastal Bays Critical Area, the local program:

(1) 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

(2) 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).

(h) The provisions of this subtitle and Title 27 of the Code of Maryland Regulations apply to the Atlantic Coastal Bays Critical Area.

§ 8-1808 - 1. Growth allocation in resource conservation areas

(a) Legislative intent. -- 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.

(b) Calculation of growth allocation. -- The growth allocation for a local jurisdiction shall be calculated based on 5 percent of the total resource conservation area in a local jurisdiction:

(1) 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

(2) 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.

(c) Standards for locating new intensely developed or limited development areas. --

(1) 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:

(i) Policies;

(ii) Timing of the implementation of the plan;

(iii) Timing of development;

(iv) Timing of rezoning;

(v) Development patterns;

(vi) Land uses; and

(vii) Densities or intensities.

(2) When locating new intensely developed or limited development areas, local jurisdictions shall use the following standards:

(i) Locate a new intensely developed area in a limited development area or adjacent to an existing intensely developed area;

(ii) Locate a new limited development area adjacent to an existing limited development area or an intensely developed area;

(iii) 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;

(iv) 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;

(v) 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;

(vi) Except as provided in item (viii) 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;

(vii) 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

(viii) 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 (vi) of this paragraph. A developer shall be required to cluster any development in an area of expansion authorized under this paragraph.

(3) A local jurisdiction may use a standard that varies from the standards required under paragraph (2)(i) and (ii) of this subsection if:

(i) The alternative standard is consistent with the jurisdiction's adopted comprehensive plan; and

(ii) The Commission has approved the alternative standard as part of the local program.

(4) In reviewing map amendments or refinements involving the use of growth allocation, the Commission shall consider the following factors:

(i) Consistency with the jurisdiction's adopted comprehensive plan and whether the growth allocation would implement the goals and objectives of the adopted plan;

(ii) 1. For a map amendment or refinement involving a new intensely developed area, whether the development is:

A. To be served by a public wastewater system;

B. 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;

C. 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

D. To have a demonstrable economic benefit to the area; and

2. For a map amendment or refinement involving a new limited development area, whether the development is:

A. To be served by a public wastewater system or septic system that uses the best available nitrogen removal technology;

B. A completion of an existing subdivision;

C. An expansion of an existing business; or

D. To be clustered;

(iii) The use of existing public infrastructure, where practical;

(iv) 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;

(v) Impacts on a priority preservation area, as defined under § 2-518 of the Agriculture Article;

(vi) Environmental impacts associated with wastewater and stormwater management practices and wastewater and stormwater discharges to tidal waters, tidal wetlands, and tributary streams; and

(vii) Environmental impacts associated with location in a coastal hazard area or an increased risk of severe flooding attributable to the proposed development.

(5) 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.

(d) Growth allocation for jurisdiction subject to both critical area programs. --

(1) 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.

(2) 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.

(3) A local jurisdiction's program may not transfer more than 150 acres of growth allocation to another critical area.

(e) Calculation of 1-in-20 acre density of development. --

(1) 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:

(i) Shall count each dwelling unit; and

(ii) May permit the area of any private wetlands located on the property to be included, under the following conditions:

1. The density of development on the upland portion of the parcel may not exceed one dwelling unit per 8 acres; and

2. The area of private wetlands shall be estimated on the basis of vegetative information as designated on the State wetlands maps.

(2) (i) 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:

1. A. Is located within the primary dwelling unit or its entire perimeter is within 100 feet of the primary dwelling unit;

B. Does not exceed 900 square feet in total enclosed area; and

C. Is served by the same sewage disposal system as the primary dwelling unit; or

2. A. Is located within the primary dwelling unit;

B. By its construction, does not increase the amount of lot coverage already attributed to the primary dwelling unit; and

C. Is served by the same sewage disposal system as the primary dwelling unit.

(ii) 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.

(iii) 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.

(3) (i) Each local jurisdiction shall:

1. Maintain records of all building permits issued under this subsection for additional dwelling units considered part of a primary dwelling unit; and

2. Provide this information on a quarterly basis to the Commission.

(ii) Beginning on November 1, 2004 and annually thereafter, the Commission shall report, subject to § 2-1246 of the State Government Article, to the Senate Education, Health, and Environmental Affairs Committee, the House Environmental Matters Committee, and the Joint Committee on the Chesapeake and Atlantic Coastal Bays Critical Area regarding the construction of additional dwelling units considered part of a primary dwelling unit under this subsection.

(4) The provisions of this subsection:

(i) Apply to density calculations only; and

(ii) May not be construed to authorize a local jurisdiction to grant a variance, unless the variance is granted in accordance with the requirements of § 8-1808(d) of this subtitle.

§ 8-1808 - 2. Intrafamily transfers

(a) Definitions. --

(1) In this section the following words have the meanings indicated.

(2) "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.

(3) "Immediate family" means a father, mother, son, daughter, grandfather, grandmother, grandson, or granddaughter.

(b) Authorize. -- 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.

(c) Permitted parcels of land. -- 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:

(1) 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

(2) Are 7 acres or more and less than 60 acres in size.

(d) Parcels of land constitute subdivisions. -- 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.

(e) Approval of subdivision of parcels. --

(1) A local jurisdiction:

(i) 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

(ii) May not approve any greater subdivision of the parcel of land or any portion of the parcel of land.

(2) A parcel that is 7 acres or more and less than 12 acres in size may be subdivided into 2 lots.

(3) 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.

(f) Approval of subdivision of parcels -- Conditions of approval. --

(1) As a condition of approval, a local jurisdiction shall require that:

(i) 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

(ii) 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.

(2) This subsection does not prevent the conveyance of the lot to a third party as security for a mortgage or deed of trust.

(g) Standards and procedures for subsequent conveyance of lots. -- 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:

(1) 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

(2) (i) 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

(ii) 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.

§ 8-1808 - 3. Lot coverage limitation.

(a) Applicability of section. --

(1) This section applies notwithstanding:

(i) Any other provision of this subtitle; or

(ii) Any criteria or guideline of the Commission adopted under this subtitle.

(2) 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.

(b) Exceptions to lot coverage in buffer area. -- Lot coverage in the buffer may not exceed the minimum amount necessary for water-dependent facilities, regardless of the critical area classification or the size of the parcel or lot, except:

(1) For a buffer exemption area, as mapped or established under an approved local program;

(2) For a variance granted in accordance with this subtitle; or

(3) As provided in a waterfront revitalization area or a waterfront industrial area under a local program.

(c) Priority of section. -- This section controls over any other requirement concerning lot coverage limitations in limited development areas and resource conservation areas in the critical area.

(d) Stormwater runoff. --

(1) Except as otherwise provided in this subsection for stormwater runoff, lot coverage is limited to 15% of a parcel or lot.

(2) 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.

(3) 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.

(4) 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%.

(e) Exemption. -- 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.

(f) Exceeding limits. -- 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:

(1) Lot coverage associated with new development activities on the property has been minimized;

(2) 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;

(3) 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;

(4) 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; and

(5) 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.

(g) Use of fees collected. -- 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.

(h) Legally developed property. --

(1) In this subsection, "legally developed" means that all physical improvements to a property:

(i) Existed before Commission approval of a local program; or

(ii) Were properly permitted in accordance with the local program and impervious surface policies in effect at the time of construction.

(2) (i) A lot or parcel legally developed as of July 1, 2008 may be considered legally nonconforming for purposes of lot coverage requirements.

(ii) 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:

1. A building permit was issued before July 1, 2008; and

2. Construction was initiated and an inspection was performed before July 1, 2009.

(i) Variances. -- 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.

§ 8-1808 - 4. Structures on piers

(a) Applicability of section to Prince George's County. -- This section does not apply to any project involving the construction of a dwelling unit or other non-water dependent structure on a pier located on State or private wetlands within the Critical Area in Prince George's County.

(b) "Pier" defined. --

(1) In this section, "pier" means any pier, wharf, dock, walkway, bulkhead, breakwater, piles, or other similar structure.

(2) "Pier" does not include any structure on pilings or stilts that was originally constructed beyond the landward boundaries of State or private wetlands.

(c) Applicability of section generally. -- This section applies notwithstanding:

(1) Any other provision of this subtitle; and

(2) Any criteria or regulation adopted by the Commission under this subtitle.

(d) Preemption of other requirements. -- This section preempts any other requirement concerning piers in the Critical Area.

(e) Building permits. --

(1) Except as provided in paragraphs (2), (3), and (4) of this subsection, a local jurisdiction may not issue a building permit for any project involving the construction of a dwelling unit or other non-water dependent structure on a pier located on State or private wetlands within the Critical Area.

(2) This section does not prohibit or restrict a local jurisdiction from issuing a building permit for a project involving the construction of a dwelling unit or other non-water dependent structure on a pier located on State or private wetlands within the Critical Area that was issued a permit by the Secretary on or before January 1, 1989.

(3) A local jurisdiction may issue a building permit for a project involving the construction of a dwelling unit or other non-water dependent structure on a pier located on State or private wetlands within the Critical Area if:

(i) The project is constructed on a pier in existence as of December 1, 1985 that can be verified by a Department of Natural Resources aerial photograph dated 1985, accompanied by a map of the area;

(ii) The project does not require an expansion of the pier greater than 25% of the area of piers or dry docks removed on the same property; however, additional expansion may be allowed in the amount of 10% of the water coverage eliminated by removing complete piers from the same or other properties. If the horizontal surface area of a pier to be removed is not intact but the remaining pilings identify its previous size, that area may be used in determining the additional expansion permitted. The project expansion based on water coverage eliminated can be considered only if all nonfunctional piers on the property are removed except for the project pier. The total expansion may not exceed 35% of the original size of the piers and dry docks removed;

(iii) The project is approved by local planning and zoning authorities; and

(iv) The project is located in an intensely developed area, as designated in programs adopted or approved by the Critical Area Commission under this subtitle.

(4) A local jurisdiction may issue a building permit for the repair of an existing dwelling unit or other non-water dependent structure on a pier located on State or private wetlands within the Critical Area.

(5) Except for projects under paragraph (2) of this subsection, and in addition to all other provisions of this section, all projects involving the construction of a dwelling unit or other non-water dependent facility on a pier located on State or private wetlands within the Critical Area may not be issued a building permit unless:

(i) The applicant demonstrates that the construction and operation of the project will not have a long term adverse effect on the water quality of the adjacent body of water in accordance with standards established by the local jurisdiction's critical areas program;

(ii) The applicant is required to improve the water quality of existing stormwater runoff from the project site into adjoining waters in accordance with standards established by the local jurisdiction's critical areas program; and

(iii) The applicant demonstrates that any sewer lines or other utility lines extended for the pier will not adversely affect the water quality of adjoining waters in accordance with standards established by the local jursidiction's critical areas program.

§ 8-1808 - 5. Community pier in buffer

(a) "Community pier" defined. --

(1) 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.

(2) "Community pier" does not include a private pier or a mooring.

(b) Applicability. -- This section applies notwithstanding:

(1) Any other provision of this subtitle; and

(2) Any criteria or regulation adopted by the Commission under this subtitle.

(c) Requirements. -- 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:

(1) The facility:

(i) Is water dependent;

(ii) Meets a recognized private right or public need;

(iii) Is community-owned and established and operated for the benefit of the residents of a platted and recorded riparian subdivision; and

(iv) 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;

(2) Adverse effects on water quality and fish, plant, and wildlife habitat are minimized;

(3) Insofar as possible, nonwater dependent structures or operations associated with water dependent projects or activities are located outside the buffer;

(4) Disturbance to the buffer is the minimum necessary to provide a single point of access to the facility;

(5) Food, fuel, or other goods and services are not offered for sale, and adequate and clean sanitary facilities are provided; and

(6) When a community pier with slips is provided as part of a new development project, private piers are not permitted in the development area.

(d) Number of slips. -- The number of slips permitted at a facility shall be the lesser of the following:

(1) 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

(2) 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 Slips
Dwellings in the
Critical 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

(e) Variances. -- 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.

(f) Local programs to be amended. -- On or before December 31, 1994, a local jurisdiction shall amend its local critical area protection program to meet the provisions of this section.

§ 8-1808 - 6. Credits to applicants who minimize adverse impact

(a) Applicability. --

(1) This section applies notwithstanding:

(i) Any other provisions of this subtitle;

(ii) Any criteria or guidelines adopted by the Commission under this subtitle; or

(iii) Any provision of a local program or program amendments as approved before October 1, 1995.

(2) This section applies to applicants seeking project approval of a new or expanded marina.

(b) Credits. --

(1) 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.

(2) 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:

(i) Adverse impacts to water quality of a new or expanded marina project will be minimized or avoided; and

(ii) Water quality will be improved as a result of the development of the marina project.

§ 8-1808 - 7. Commercial timber harvest

(a) Authorization. -- 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.

(b) Buffer management plan. -- 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:

(1) Disturbance of stream banks and shorelines shall be avoided;

(2) 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;

(3) The cutting may not involve the creation of logging roads and skid trails within the buffer; and

(4) 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.

§ 8-1808 - 8. Local critical area protection program

(a) Atlantic Coastal Bays Critical Area. -- 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.

(b) Forest Conservation Act. --

(1) 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.

(2) Subsection (a) of this section and paragraph (1) of this subsection do not apply to:

(i) 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

(ii) A single lot that is part of a project that has otherwise complied with the Forest Conservation Act.

(3) 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.

(c) Additional provisions. -- Each local jurisdiction in the Atlantic Coastal Bays Critical Area may include in its local critical area protection program:

(1) 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;

(2) 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

(3) 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.

(d) Assistance by Department. -- On request, the Department shall assist a local jurisdiction in the preparation of:

(1) Any more detailed maps or studies necessary to implement the buffer provisions under subsection (c)(2) of this section; and

(2) The wetland protection provisions under subsection (c)(3) of this section.

(e) Agricultural activities permitted under certain circumstances. -- 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.

§ 8-1808 - 9. Provisions applying a buffer to perennial and intermittent streams

(a) Application. -- 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.

(b) Written statement of intent. -- 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:

(1) 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

(2) Not to adopt the provisions.

(c) Submission of 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.

§ 8-1808 - 10. Minimum buffer.

(a) Scope. -- This section applies to an application for subdivision or site plan approval within the resource conservation area that:

(1) 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

(2) Does not involve the use of growth allocation.

(b) In general. --

(1) Except as provided under subsection (c) of this section, the minimum buffer shall be:

(i) 200 feet from tidal waters or a tidal wetland; and

(ii) 100 feet from a tributary stream.

(2) 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.

(c) Reduction of buffer. -- The 200-foot buffer may be reduced if:

(1) The strict application of the minimum 200-foot buffer would preclude:

(i) 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

(ii) An intra-family transfer authorized under § 8-1808.2 of this subtitle; and

(2) The reduction will occur in accordance with local program procedures approved by the Commission.

§ 8-1808 - 11. Erosion control.

(a) In general. -- Other than in areas designated by the Department of the Environment mapping as appropriate for structural shoreline stabilization measures, improvements to protect a person's property against erosion shall consist of nonstructural shoreline stabilization measures that preserve the natural environment, such as marsh creation, except in areas where the person can demonstrate to the satisfaction of the Department of the Environment that these measures are not feasible, including areas of excessive erosion, areas subject to heavy tides, and areas too narrow for effective use of nonstructural shoreline stabilization measures.

(b) Regulations. --

(1) In consultation with the Department, the Department of the Environment shall adopt regulations to implement the provisions of this subsection.

(2) The regulations shall include a waiver process that exempts a person from the requirements of subsection (a) of this section on a demonstration to the satisfaction of the Department of the Environment that nonstructural shoreline stabilization measures are not feasible for the person's property.